Cultural Expertise and Litigation: Patterns, Conflicts, Narratives

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Cultural Expertise and Litigation

Cultural Expertise and Litigation addresses the role of social scientists as a source of expert evidence, and is a product of their experiences and observations of cases involving litigants of South Asian origin. What is meant in court by ‘culture’, ‘custom’ and ‘law’? How are these concepts understood by witnesses, advocates, judges and litigants? How far are cross-cultural understandings facilitated – or obscured – in the process? What strategies are adopted? And which ones turn out to be successful in court? How is cultural understanding – and misunderstanding – produced in these circumstances? And how, moreover, do the decisions in these cases not only reflect, but impact, upon the law and the legal procedure? Cultural Expertise and Litigation addresses these questions, as it elicits the patterns, conflicts and narratives that characterize the legal role of social scientists in a variety of de facto plural settings – including immigration and asylum law, family law, citizenship law and criminal law. Livia Holden is Associate Professor in Anthropology at LUMS (Lahore) and Research Associate at the French Institute (Pondicherry). She is the author of Hindu Divorce: A Legal Anthropology (Ashgate 2008). Most of her research is based on ethnographic fieldwork carried out in South Asia and in the areas of South Asian diasporas. She leads four international research teams focusing on non-state law and governance (ANR), judicial accountability (IFP and DPRC), and the management of multiculturalism (ANR).

Cultural Expertise and Litigation

Patterns, Conflicts, Narratives

Edited by Livia Holden

First published 2011 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge 711 Third Avenue, New York, NY 10017 A GlassHouse Book Routledge is an imprint of the Taylor & Francis Group, an informa business This edition published in the Taylor & Francis e-Library, 2011. To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk. © 2011 editorial matter and selection: Livia Holden The right of Livia Holden to be identified as editor of this work has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data Cultural expertise and litigation : patterns, conflicts, narratives / edited by Livia Holden. p. cm. 1. Forensic anthropology. 2. Forensic sociology. 3. Evidence, Expert. 4. Asylum, Right of. I. Holden, Livia. K2290.A58C85 2011 347'.067–dc22 ISBN 0-203-81830-X Master e-book ISBN

ISBN13: 978-0-415-60156-6 (hbk) ISBN13: 978-0-203-81830-5 (ebk)

To my children, wishing them to see the dawn of multiculturalism

Contents

List of figures and tables Table of cases Notes on contributors Acknowledgements Foreword Preface Introduction: reflexivity, culture and ethics

ix x xiii xv xvii xix 1

LIVIA HOLDEN

PART I

Patterns 1

South Asian Muslims and country expertise in the American immigration courts

11

13

S Y L V I A V A T UK

2

When South Asians marry trans-jurisdictionally: some reflections on immigration cases by an ‘expert’

35

P R AK AS H S H AH

3

French law courts and South Asian litigants

53

V É R O N I Q UE BO U ILLIER

PART II

Conflicts 4

Being on and being in: exposure and influence of academic experts in contemporary Denmark S T I G T O FT M A D SEN

71

73

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5

Contents

Witness statements and credibility assessments in the British asylum courts

94

AN T HO N Y GO O D

6

Honour killing? Or just plain homicide?

123

R O GE R BALLARD

PART III

Narratives 7

Life and law: advocacy and expert witnessing in the UK

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151

W E R N E R M ENSKI

8

The case of S: elaborating the ‘right’ narrative to fit normative/political expectations in asylum procedure in Italy

172

T O M M AS O SBRIC C O LI AND ST EFANO JAC O V IELLO

9

Expert report writing: professional commitments and legal outcomes

195

L I V I A H O L DEN

References cited Index

212 226

List of figures and tables

Figures 5.1 The asylum appeals process 6.1 Arif ’s and Zafar Iqbal’s biraderi 6.2 Saleem’s biraderi

96 129 138

Tables 5.1 UK asylum decisions 2006–2009

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Table of cases

Abdoul Bachir H. c/ Mariam R., C. Cass. Ch. Civ 1, 2005, n° 03-14961 ..............56 Abdoul Bachir H. c/ Mariam R., CA Lyon, 2ème civ., 2008, n° 06/07748 ........... 70 Abdulaziz, Cabales and Balkandali v UK (1985) 7 EHRR 471 ........................50 n. 18 Ilyas AHMAD v. IMMIGRATION AND NATURALIZATION SERVICES (1999) U.S. App ............................................................................................26 AM and Local Authority v The Children’s Guardian B-M (Children) [2009] EWCA Civ 205 ...........................................................................................126 Daubert v Merrel Dow Pharmaceuticals, Inc., 509 US 579 (1993) .................. xxiii, xxiv Esen v SSHD [2006] SC 555 .............................................................................116 Federation of Canadian Sikh Societies v Canadian Council of Churches (1985) 1 SCR 178 .........................................................................................121 n. 20 Govindaraju v Munisamy Gounder, AIR (1997) SC 10 ............................................203 Ajmal Hussain Shah HASHMI, 24 I&N Dec. 785 (BIA 2009) File A095 827 197 ................................................................................33 n. 32 Ajmal Hussain Shah HASHMI v ATTORNEY GENERAL OF THE UNITED STATES (2008) U.S. App......................................................33 n. 32 Imran Rashid Akhtar v Janet Reno (2000) U.S. Dist .................................................23 Ishtiaq v Secretary of State for the Home Department [2007] EWCA Civ 386 ......50 n.12 J (Pakistan) [2003] UKIAT 00167 .............................................................50 n. 20 Janak D. c/ Jaskriat J. – S., Appeal Court of Paris, 1 March 2006 ......................56 Roome JOSEPH v Alberto GONZALES (2007) U.S. App. ..............................33 n. 28 Roome I. JOSEPH v Eric H. HOLDER, Jr. (2009) U.S. App. .......................33 n. 28 KA and Others (domestic violence – risk on return) Pakistan CG [2010] UKUT 216 (IAC) ................................................................................51 n. 25 Kanagasundram v SSHD, 16094, 29 January 1998; 16094, 9 December 1999; 00TH02023, 18 September 2000 ...............................................................120 Karanakaran v SSHD, [2000] Imm AR 271; (2000) 3 A11 ER 449 .............120 n. 5 Khan v Khan [2007] EWCA Civ 399 ........................................................171 n. 13 KS v SSHD Somalia CG (2004) UKIAT00271 ................................108, 121 n. 11 Kumho Tire v Carmichael 526 U.S. 127 (1999); 1999 U.S. App. .................xxiii, 222 Metock and Others v Minister for Justice, Equality and Law Reform Case C-127/08, 25 July 2008 [2008] 3 CMLR 39 ...............................................40

Table of cases

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Ministère Public c/ Belkheir, CA Limoges, ch. 1, 2007, n° 06/00718 ...........70 n. 11 Nimets v SSHD, 17884, 29 July (1999) ...............................................................120 Parmdip SINGH v John ASHCROFT, 2005 U.S. App............................................23 Quila v Secretary of State for the Home Department [2010] EWCA Civ 1482 .....50 n. 18 R v IAT and Surinder Singh, ex parte Secretary of State for the Home Department Case C-370/90 [1992] ECR I-4265 .....................................................50 n. 7 R (Shamsun Nahar) v. Social Security Commissioners [2002] EWCA Civ 859 ....................................................................................51 n. 23 Regina v Mujibur Rahman [2007] EWCA Crim 237 ............................................143 S.K. v F.K., 2010 N.Y. Misc. .......................................................................31 n. 14 State of New Jersey v Abdul Razzak Ishaque (1997) N.J. Super ................................19 SW v SSHD (Adjudicator’s questions) Somalia [2005] UKIAT0OO37 ........... 97, 120 Yousaf & Jamil: R v SSHD ex parte Yousaf & Jamil, C/1999/1004, C/1999/1115, 2000 .................................................121 n. 20

Notes on contributors

Roger Ballard is Director of the Centre of Applied South Asian Studies (CASAS). In addition to editing Desh Pradesh: the South Asian Presence in Britain (1994) he has published numerous articles exploring the qualitative dynamics of contemporary South Asian diasporic networks. In his role as a Consultant Anthropologist he has prepared over six hundred expert reports for use in all manner of legal proceedings in which members of Britain’s South Asian minorities have found themselves involved. Can be reached at [email protected] Véronique Bouillier is Senior Researcher at CNRS (France). Major publication: Itinérance et Vie Monastique. Les Ascètes Nath Yogis en Inde Contemporaine (2008). She is presently studying the French judicial system focusing on people of South Asian origin living in France. Can be reached at [email protected] Anthony Good is Professor Emeritus in Social Anthropology at the University of Edinburgh. Major publications: Research Practices in the Study of Kinship (1984; with Alan Barnard); The Female Bridegroom (1991); Worship and the Ceremonial Economy of a Royal South Indian Temple (2004); and Anthropology and Expertise in the Asylum Courts (2007). Can be reached at [email protected] Stefano Jacoviello is Lecturer in Semiotics and Theory of Arts at Siena University. His research focuses on semiotics, aesthetics, and anthropology in order to apply the structural semiotics analytical perspective to the study of cross cultural exchange dynamics. Can be reached at [email protected] Stig Toft Madsen is Research Associate at NIAS - Nordic Institute of Asian Studies. Major publications: State, Society and Human Rights in South Asia (1996); State, Society and the Environment in South Asia (1999, editor); Trysts with Democracy: Political Practice in South Asia (2011, joint editor). Can be reached at [email protected]

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Notes on contributors

Werner Menski is Professor of South Asian Laws at SOAS, University of London. Major publications: Islamic Family Law (1998, with David Pearl); Modern Indian Family Law (2001); Hindu Law. Beyond Tradition and Modernity (2003); Comparative Law in a Global Context: The Legal Systems of Asia and Africa (2nd ed. 2006). Can be reached at [email protected] Tommaso Sbriccoli is a political and legal anthropologist. His research focuses on traditional institutions and non-state jurisdictions in India, and in migration and asylum procedures in Italy. Currently, he is the scientific coordinator of the EU Project “Playing Identities: Migration, Creolisation, Creation” at Siena University. Can be reached at [email protected] Prakash Shah is Senior Lecturer at the School of Law, Queen Mary, University of London. Recent publications include: Legal practice and cultural diversity (2009, joint editor); Law and ethnic plurality: Socio-legal perspectives (2007, editor); Migration, diasporas and legal systems in Europe (2006, editor with Werner F. Menski); The challenge of asylum to legal systems (2005, editor); and Legal pluralism in conflict: Coping with cultural diversity in law (2005, sole authored). Can be reached at [email protected] Sylvia Vatuk is Professor Emerita of Anthropology at the University of Illinois, Chicago, USA. Representative publications: “Islamic Feminism in India? Indian Muslim Women Activists and the Reform of Muslim Personal Law” (2008) and “Divorce at the Wife’s Initiative in Muslim Personal Law: What are the Options and What are Their Implications for Women’s Welfare?” (2008). Can be reached at [email protected]

Acknowledgements

Special thanks go to the project Justice and Governance in Contemporary India and South Asia (funded by Agence Nationale de la Recherche) and to Maison des Sciences de l’Homme for financing the workshop from which this volume originates, as well as to Lahore University of Management Sciences for financing a full time research assistant for 17 months. I am in debt to Ms Fatima Mustafa, my research assistant for seven months, who has been not only extremely responsible, patient, diligent and scrupulous, but also cheerful and supportive. Ms Zaineb Majoka, who took over the job, did wonders by immediately fitting in the busy and hectic schedule that has characterized the edition of this book. Many thanks to Professor Ali Khan, Chair of Humanities and Social Sciences Department at LUMS and Dr Daniela Berti and Professor Gilles Tarabout, directors of Justice and Governance in Contemporary India and South Asia, Professor Joelle Smadja, Director of the Center for Himalayan Studies and also to Mrs Bernadette Sellers, translator and proofreader. Without their flexibility, understanding and encouragement, this volume could not have been published. LUMS campus provided an exceptional setting, both logistically and academically, for the writing of this volume. Special thanks to all my colleagues at LUMS but particularly to Dr Sadaf Ahmad, Dr Parveen Akhtar, Dr Emma Varley, Dr. Anjum Alvi and Dr Ali Nobil. Many thanks also to Ms Safina Joseph and Mr Maratib Ali Shad for always being available to sort out office practicalities. I am grateful to my students of Anthropology of Law and South Asian Diasporas at LUMS, Humboldt University and Griffith University. Their inquisitive minds and eagerness to learn have made it all worthwhile. My thanks go as always to my husband, Marius, for his academic advice and unconditional emotional support and to our children, Ethan, Luna, Lian and Taima, for their patience and for their pride in their mother’s work. Heartfelt thanks go also to my friends Donny Duke, Douglas McElheny and Dr Mark Fenemore for their rescuing proofreading when we were running late in submitting the typescript. And last but by any means not least I have been extremely lucky to have the most experienced scholars in their respective fields as co-authors in this collected volume. I could not but learn from all of them, and I will never be able to reciprocate.

Foreword

Cultural Expertise and Litigation: Patterns, Conflicts, Narratives comes at a time when the academic community is showing a deeper interest in the study of law and culture. It also corresponds to new developments in the anthropology of law that aim at diversifying and recombining methodological approaches and the location of ‘fieldwork’. Moreover, within this general context, there have been recent initiatives in South Asian scholarship for increased confrontation of the social sciences with law studies. Indeed, the focus on the role of experts in trying to bridge the gap between ‘the law’ in some countries of ‘the North’, and the ‘culture’ of people whose origin is in ‘the South’, here South Asia, presents extraordinary opportunities for highlighting the challenge that the current process of globalization and intensified circulation of people entails as courts try to cope with more or less reified notions of perceived exotic cultures. The nine chapters of this book offer a remarkably diverse and eloquent picture in this perspective by providing a wide array of first-hand experiences in different legal systems, in the US and in different countries of Europe. Dealing with civil cases as well as with criminal cases, the essays develop an indepth analysis of the interactions taking place between the legal practitioners, the people involved in the case and the expert or cultural mediator. Specific importance is given to the study of the epistemologies involved by processes of both the expert ‘translating culture’ and of the court deciding on legal ‘evidence’: the two processes follow rather incommensurable logics and their negotiation by the law court is precisely the reason why an expert is called upon. However, this responsibility often entails crucial ethical difficulties, for which the authors in the volume propose reflections based on their own personal experience. This collection of essays was developed and coordinated by Livia Holden as the outcome of the international workshop that she convened in Paris in November 2009 within the framework of the research project Governance and Justice in Contemporary India and South Asia (Just-India). This project that we are coordinating is being funded for a period of four years (2009–2012) by the Agence Nationale de la Recherche (ANR), with additional funding from the Fondation Maison des Sciences de l’Homme (FMSH), Paris, and the Council of South Asian Studies at Yale; it is sponsored by the Centre National de la Recherche Scientifique (CNRS)

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and is run by the Centre for Himalayan Studies, part of the latter research institute. The programme has an international membership and many of the contributors to the volume are either participating members or associated with it. Livia Holden is the scientific coordinator of one of the five thematic sections of the programme entitled ‘Conflict of Law in Transnational Cases’, which is concerned with the legal impact of the circulation of people from South Asia. The other four sections deal with legal cases in South Asia and concern the study of criminal cases, natural resources management and environmental policies, religion and the courts, and fundamental and constitutional rights. The general idea behind the project is to study governance and the administration of justice by focusing on the analysis of court cases related to various issues. Some of these issues are partly the outcome of the commitments that South Asian countries have made both at national and international level – such as in the field of the legal protection of ‘underprivileged’ groups, of environmental policies, of narcotics control, of human rights, of the secularism issue, and so on. These commitments have created a number of ‘new’ situations where the state and local society, along with many different actors at various levels, find themselves interacting in a more or less antagonist way whenever state commitment goes against local forms of relationships or local economic or political interests; or they can create reciprocal adjustments and adaptations whenever the state or society tries to seek alternative solutions or negotiations. The methodology chosen tries to occupy the ground between two perspectives that have already provided for remarkable scholarship – the study of the history and cultural components of the legal system and the cultural use of the courts. In between these, the study of the judiciary system in place in relation to the social and cultural characteristics of the people involved appears to have developed to a lesser extent, and the Just-India programme aims at developing new research in this direction. We welcome this volume on Cultural Expertise and Litigation as a landmark publication in this overall perspective, with the conviction that it should become a reference volume for further study of the interactions between conceptions of culture and legal systems, and for a general reflection on the contribution of the social sciences to shaping these interactions, with the ethical issues it entails. Daniela Berti & Gilles Tarabout CNRS

Preface

It is a pleasure to write a preface for this book. As well as appealing to my general interest in interactions between law and exogenous forms of knowledge, the essays in this volume resonate directly with my own experiences. One of these, in a rather modest way, affirms the tenor of many of the accounts detailed in the following pages. It concerns my own encounters with the Department of Immigration and Multicultural Affairs in relation to my wife’s immigration to Australia. Another, probably of more interest to anthropologists engaged, albeit occasionally and sometimes unwittingly, with the law, introduces recent and alarming developments in the forensic sciences. These developments provide an interesting comparison (or extension) to some of the themes and ideas explored in this collection around anthropological evidence and the treatment of non-legal forms of expertise. The emerging crisis in the forensic sciences provides insight into the need to theorize anthropological encounters with legal and quasi-legal systems, as well as the difficulty of effecting legal change.

The trials (of Dr K) I was born in Australia and have always been an Australian citizen. I lived in Australia until I left to undertake graduate research in England. How I come to be at the University of New South Wales, after brief sojourns at the University of Adelaide and the Australian National University, is in large part as a result of my interactions with the Australian state and its immigration bureaucracy. In early 1998, during my first year in England, I formed what has been a continuing relationship with K, a South African geneticist, also enrolled in a PhD programme. Having almost completed my doctorate, at the beginning of 2000, I returned to Australia where I had accepted a continuing lectureship in the School of Law at the University of Adelaide. K, who at that time was my de facto partner, although still immersed in laboratory work, took a further year to complete her thesis. Upon submission, she came to Australia to join me. In the intervening year we spent several months together during reciprocal visits to the UK and Australia. Before moving to Australia we applied for a spousal visa, for K, in London. Naïvely, in retrospect, we accepted the advice of consular officials and bureaucrats

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at face value. Originally, we were not in a position to retain lawyers and did not believe we would need them. We did not anticipate that our application and the evidence we had assembled would be treated suspiciously. As it turned out, our original application was rejected. We had been apart for just over a year and this created an apparently insuperable evidentiary hurdle for the decision-maker. Hundreds of emails, telephone calls and sustained international visits, numerous statutory declarations, and even the long-anticipated reunion in Australia, could not overcome the apparent rupture created by the physical separation and our failure, as students on modest scholarships, to open a joint bank account or have a telephone connected in both our names. The rejection of our application had immediate practical consequences. Officially, our relationship became inauthentic. Dr K could only obtain a temporary entry visa, would be unable to work during her short visits to Australia and became something of an immigration ‘risk’. At this point we took the advice of an immigration lawyer. She suggested that our best option was for Dr K to find an Australian employer to sponsor her on a work visa. This would enable her to live and work in Australia and we could reapply for government recognition at some later point in time. We were advised against an appeal. Although likely to succeed, the process would be lengthy, expensive and would not relieve the immediate need to be able to stay and work in Australia. As a highly skilled graduate Dr K obtained and accepted a position with the peak government scientific research organization (CSIRO) in Canberra and our immediate residency problems receded. To the dismay of my colleagues, but having spent more than a year living mostly apart and reluctant to perpetuate that arrangement, I resigned my position at the University of Adelaide and followed Dr K to Canberra. We were married just over a year later, at the beginning of 2003. Then, after our marriage was duly notarized and registered – by that stage we were conscious of the need for official pieces of paper – we again sought permanent residency for Dr K. In an effort to expedite Dr K’s Australian citizenship we needed to prove that our relationship predated our original application. I sought to revisit the evidence – which included more than a dozen statutory declarations from fellow graduate students, professors and even a nosy college cleaner – submitted with that application, with our new immigration officer. However, the real problem was the original determination. Rather than reinforce the existence of an ongoing relationship, the previous application became a stumbling block. For, even though the department could accept that our relationship was now genuine, it was unwilling to concede its decision in 2001 might have been mistaken. In a frank exchange, I explained that it was unlikely that our by now real relationship had grown out of a relationship contrived for immigration purposes and that this contention was reinforced by the continuity of our relationship and our evidence, much of which predated the unsuccessful application. When I raised the many solemn declarations attesting to our public life as a couple prior to the previous determination, the officer responded that she did not attach much weight to

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signed declarations. I remember asking, rhetorically, as it turned out: Which is easier, suborning reputable people, including lawyers, or going down to the bank and obtaining a joint bank account, or having a phone installed in both our names? Our reasoned decision not to contest the original rejection was presented to us as acquiescence in the correctness of the department’s original assessment. After our second application was apparently accepted, on the issue of whether Dr K would obtain citizenship immediately, we were told that if we were willing simply to accept the department’s latest assessment and ‘wait out’ a two-year probation then it was ‘a done deal’. If, on the other hand, we wanted to have this decision reviewed internally, in the hope that the full duration of our relationship might now be accepted, so that there would be no delay in Dr K’s ability to obtain citizenship, then once again everything would be up for grabs. In the end we took the bird in the hand. I often reflect on how, even as an educated, relatively affluent, English-speaking man of European descent and steeped in the Anglo-American legal tradition, I (really we) felt relatively powerless against the immigration bureaucracy and its internal logic. These experiences, although incredibly frustrating, inconvenient and expensive, are trivial when compared with most of the episodes in this book. We were not tortured or sexually assaulted; we did not suffer from racism or racist attitudes (overtly or unwittingly); there were no problems with language – it was only our immigration officer for whom English was a second language – we had plenty of documentary evidence supporting each and every claim; our experience and circumstances were not particularly unusual and at every stage we had options. One of the roles of this book is to document the hardship and suffering perpetuated by law and legal processes. I commend the contributors and the many individuals described on the pages that follow who laboured, often pro bono, to assist vulnerable persons who, often through no fault of their own, were discriminated against or prejudiced. There is, it would seem, no place for complacency when it comes to law and legal processes.

Forensic trials Anthropological interest in law and involvement in legal practice is long-standing (eg Malinowski, Gluckman, Bohannan, Rosen, Nader, Moore, Silbey and Good). In Australia, anthropologists have played an important role in the recognition of customary law and native title and their institutional and statutory manifestations. These experiences have analogies in many former colonies – and states where minorities have been displaced – and often include sustained, and sometimes coordinated, efforts with archaeologists, historians, linguists and ethnomusicologists and broader social movements. The value of these contributions and the roles of anthropologists in the practice and legitimacy of legal regimes and institutions has not, however, been without controversy (Edmond 2004; Strathern 2006).

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This book represents a timely contribution to our understanding of a broad range of issues at the intersections of (representations of) culture and cultural practices, expertise and law. Thematically focused on South Asian diasporas, the reader is taken through a range of legal encounters that repeatedly illustrate how distracted, myopic and parochial (Western) legal systems can be and how ideological commitments and institutional traditions often conspire to eviscerate the lofty potential of rights discourses, humanitarian commitments and sometimes even concerns with factual accuracy and substantial fairness. An alternative way to conceptualize this state of affairs, as a keen observer of American criminal procedure once explained, in a way that seamlessly integrated policy goals with actual practice, is that ‘the process is the punishment’ (Feeley 1979). The contributors to this book repeatedly identify legal limitations and failures, and even when the particular system produced what appeared to be an appropriate – in the sense of fair, accurate and principled – outcome, that result often seems to have been painstakingly slow, prohibitively expensive and to impose greater personal suffering than we might expect, or require, of our legal institutions and democratic systems of government. Together, the contributions illustrate how insensitive, suspicious and occasionally hostile the law and legal practitioners – including personal legal representatives – can be to applicants, defendants and appellants. They also portray a mixed, although not particularly sympathetic or accommodating, response to other ways of knowing: that is, to exogenous forms of practice, experience and (specialized) knowledge. Legal and quasi-legal institutions, and their middle class (and scientifically illiterate, more below) personnel, are not particularly well positioned to deal with knowledge, experience and traditions beyond ‘the familiar’, even when they regularly come into contact with them. Historically, legal institutions have been reluctant to engage with empirical evidence, as opposed to the experience of judges and tribunal members, on their performance and processes (Allen and Leiter 2001). These essays provide another set of resources documenting legal limitations and the extraordinary difficulty legal institutions seem to have responding to, let alone accommodating, exogenous knowledge and experience (Jasanoff 1996). Of course, these experiences are not unique to South Asian diasporas and, interestingly, are common beyond anthropology. Indeed, recent developments in response to emerging problems with the forensic sciences provide some indication of the very formidable challenges facing not only lay lawyers and judges but also those who hope to influence individual decisions and reform legal institutions and practice. Over the course of the last two decades serious problems with many forensic sciences have emerged. These problems surfaced as legal scholars and research psychologists openly challenged several marginal forensic sciences such as handwriting comparisons, forensic voice identification and the analysis of bite marks (Risinger 2007). These early encounters convinced a handful of methodologically sophisticated lawyers and social scientists (and a few scientists) that there were

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serious problems with the empirical foundations underlying the opinion evidence such forensic scientists were routinely proffering in serious criminal proceedings. That is, there were a few validation studies, no attempt to determine error rates or assess the personal proficiency of analysts and little attention to the way investigations and analytical processes unnecessarily exposed analysts to gratuitous, although frequently prejudicial, information. However, it was not until the emergence and uptake of forensic DNA typing and the gradual fall-out from a series of important appeals, handed down by the Supreme Court of the United States in response to perceived problems with expert evidence in tort and product liability litigation, that the full extent of problems with the forensic sciences began to unfold. The appeals, following from the seminal Daubert v Merrell Dow Pharmaceuticals, Inc. decision, began to require, at least in theory, that scientific and biomedical evidence should be ‘reliable’ before being admitted. Daubert, and the need for reliability, was extended to other forms of technical and specialized (ie non-scientific) knowledge in Kumho Tire v Carmichael. These decisions were apparently intended to assist with the regulation of civil litigation by excluding the expert evidence supporting claims advanced by plaintiffs. By imposing an onerous admissibility standard – based on testing, peer review and publication, error rates and general acceptance – and through vigilant ‘gatekeeping’ judges were able to terminate civil suits at an early (pre-trial) stage, thereby efficiently preventing ‘unworthy’ plaintiffs from suing corporations for injury, illness and environmental degradation. In effect, plaintiffs were unable to put the expert evidence supporting their claims before a jury. Only in recent years has the exclusionary approach from civil litigation been slowly, although largely unsuccessfully, turned toward the forensic sciences, with DNA evidence as something of a model. As technical advances, scholarly criticisms and legal challenges led to the gradual refinement of techniques and improvements in the interpretation of results, the substantial empirical foundations of DNA techniques and associated population statistics could, along with the models of science and expertise promoted in Daubert and Kumho, be rhetorically mobilized against the vast majority of forensic sciences (Aronson 2007; Lynch et al. 2008). These efforts confirmed how initial anxieties over identification evidence based on handwriting, voices and bite marks were applicable to almost every other type of comparison ‘science’, including latent fingerprints, ballistics, photo comparison, hair comparison, gait analysis, ear prints, foot and palm prints, and so on (Saks and Koehler 2005). The gradual realization that most of the forensic sciences had few, if any, credible empirical foundations, especially in relation to their ability to individualize, has created something of a scandal. It suggests that legal institutions have, for more than a century, failed in the regulation and admission of forensic science evidence. These perspectives, which remained relatively peripheral, and were actively downplayed by US judges, were recently given authoritative support by the US National Academy of Sciences (NAS) – and this is where some of the implications for anthropologists might begin to become more conspicuous.

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In 2009, after a lengthy inquiry into the condition of the forensic sciences, a congressionally funded committee of the NAS produced its report. That report, Strengthening the Forensic Science in the United States, cast serious doubt on the organization and funding of forensic science and medicine, specifically, the reliability of forensic sciences concerned with identification, and the ability of legal institutions (and particularly lay judges) credibly to regulate forensic science and medical evidence. The committee explained: With the exception of nuclear DNA analysis … no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source. … The simple reality is that the interpretation of forensic evidence is not always based on scientific studies to determine its validity. This is a serious problem. … The law’s greatest dilemma in its heavy reliance on forensic evidence, however, concerns the question of whether—and to what extent—there is science in any given forensic science discipline. (National Research Council, 2009: S-5–S-6) The critics were emboldened by the report and trial lawyers were provisioned with an authoritative resource. Nevertheless, almost two years after this important intervention, challenging the validity and reliability of techniques routinely relied upon by police and prosecutors in the United States and beyond, courts in most jurisdictions have done little, if anything, to modify their practices. There is little evidence of courts interpreting Daubert in a way that requires them to pay more attention to the reliability of the states’ forensic science evidence in criminal proceedings. Rather, courts in many jurisdictions, including Ireland and the United Kingdom, are planning to adopt a Daubert-style approach to admissibility and their law reform commissions have been largely silent on the implications or significance of the NAS report. What has this got to do with the work of South Asian anthropologists or anthropology more generally? Well, there would appear to be several implications. First, anthropologists might take some of their own experiences with a grain of salt – or at least more reflexively. If pre-eminent scientific organizations struggle to have the results of a long formal review taken seriously, let alone conspicuously accommodated, then the isolated (but, to some extent, shared) frustrations of South Asian anthropologists, or even social anthropologists, are placed into perspective. This is not to defend the status quo but to provide some sense of the resilience of legal institutions (and their ways of knowing) and the limited potential for rapid change. Unfortunately, one of the prices paid by organized science and the critics of the forensic sciences in their efforts to expose real problems with the forensic sciences (and law) was the championing of quite simplistic models of science and expertise. The cost of challenges in the criminal domain has been to portray authentic science (and expertise) in terms of testing and replication that are not easily obtained

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or reconciled with many forms of scientific and other expert practice. The obsession with ‘high’ models of science means that there is deep suspicion of many interpretive and subjective methods. While the need for validation, testing and error rates might be entirely appropriate in many areas of forensic science – particularly for those techniques and practices used routinely – they will often be inappropriate for social anthropology and many other types of specialized knowledge (including forensic pathology). This raises questions about how anthropologists should respond, especially if access to legal institutions gradually becomes more onerous or contingent upon the need to respond to proliferating models of science and expertise (e.g. Daubert ). How should social anthropologists characterize their methods and the status of their knowledge in and around legal settings? Further, how should they respond to different legal traditions, different institutions, different kinds of proceedings, different values and different rules. By way of example, should we require more from an anthropologist testifying for the prosecution about the meaning of a tattoo acquired after a gang-related murder than an anthropologist explaining the intricacies of Hindu marriage law for the review of an immigration decision or the distribution of a deceased estate (Edmond and Roach 2011)? There are open questions about what epistemic foundations should facilitate admission and how these might be indexed to goals, underlying principles and rules, as well as risks to plaintiffs, defendants and applicants. It is not clear that lawyers and judges in a post-Daubert world will appreciate the potential value of anthropology or adopt its various, and sometimes conflicting, insights. Indeed, it is possible that judges, especially Anglo-American judges, will become increasingly resistant to social and interpretive ‘sciences’, especially when adduced by plaintiffs, criminal defendants and those challenging immigration and refugee determinations. New legal approaches to expertise and the changing policy contexts, especially with respect to immigrants, refugees and aliens, along with heightened concerns about crime and national security, mean that the marginal legal status of anthropology is unlikely to improve. There will presumably be future skirmishes for anthropologists involved in the ongoing negotiations around law and expertise, as legal institutions slowly struggle to respond to past failures and the rise in status of other ways of knowing and organizing the world, such as those associated with the modern sciences and engineering and even synthetic biology (see Rabinow 2009). Perhaps more than ever before, anthropologists need to begin thinking about how to persuade courts that their hermeneutic methods, their close relationships, partial attitudes toward subjects, and extrapolations from concentrated exposures (in ‘the field’), provide a reliable, or sufficiently reliable, basis for (increasingly technocratic) decision-making in legal and quasi-legal proceedings impacting upon displaced and local populations in an increasingly interconnected world. Gary Edmond ARC Future Fellow The University of New South Wales

Introduction Reflexivity, culture and ethics Livia Holden

The use of anthropological knowledge in court and various kinds of cultural translations for legal purposes have influenced the history of anthropology, although this is not extensively acknowledged. In fact, anthropological knowledge has been largely used both to make (il)legitimate the claims of indigenous groups in North America as well as in Australasia, and to rule overseas territories during colonization (Pinkoski 2008). Cultural expertise, broadly defined, has been the potential provider of legitimacy and consent vis-à-vis neighbours (First Nations) in America and vis-à-vis people far away from home (colonized countries) in Europe. Some have seen there two distinguishing characteristics that had an impact on the way anthropology itself has developed in America and in Europe: whereas anthropologists in America have been more interested in differences, anthropologists in Europe have been more interested in similarities (Nader 2008: 107–10). By now, however, the divergence between anthropologists talking about neighbours or about people far away has been blurred. Far away ‘natives’ have become neighbours, and neighbours have become the far away ‘other’. As a consequence, many practices of law that are travelling within the various kinds of diasporas and migration are increasingly scrutinized by the decision-making authorities in Western countries who are formally invested with the prerogative to evaluate the legality and often the morality of migrants’ actions and the genuineness of their accounts. Thus, at the official level, considerations about the role of practices and customs of the ‘South’ are integrating a specific kind of transcultural or transnational case. At the same time those practices of the ‘South’ that have travelled to the ‘North’ are also adjusted and accommodated into the new legal setting at the level of non-state law (see Menski in this volume). Similar to the colonial period,1 today Western jurisdictions settle litigation involving practices that are unfamiliar to Western lawyers and, like their predecessors, they are therefore in constant need of assistance by experts. Nowadays, however, Western authorities do not need to go to far away countries as they once did. They decide in their own legal setting with the help of Western or Western educated experts and sometimes with the help of community leaders. However, without too much of a hiatus from the time of colonization, Western law and governmentality – the latter intended, from a Foucauldian perspective,

2

Introduction

as all those practices which are best suited to fulfil the government’s policies (Foucault 2009 Chapter 4 and Sullivan 2002) – inform proceedings beyond the geographic boundaries of their own legal regimes. Marriages, divorces, adoptions and other legal facts whose legitimacy is uncontested in the countries of the ‘South’ can be declared invalid in a transnational context. Crimes such as murder, manslaughter and terrorism are evaluated in terms of the ethnicity and cultural background of the perpetrator or victim. Although some experts feel that the parallel with cultural brokers is misleading or derogatory (and we did not reach a consensus among the co-authors of this volume), it is useful to refer to this conceptual image for the role played factually by cultural experts – irrespective of whether this is suitable or not. As liminal actors of the law experts fulfil their role of cultural brokers by ‘bridging, linking or mediating between groups or persons of differing cultural backgrounds’ (Jezewski 1990).2 The expert, broadly viewed as the person who fulfils a mediation role to a variety of ways, does not per se belong to the formal setting of the law but is nevertheless bound to it, and allows for the transformation of ‘culture’ into law. Thus, not only an accumulation of proceedings is created and orchestrated by European or North American jurisdiction, but also confusion reigns, no less so now, on the kind of support needed by Western authorities to reach a decision. And, quite similar to colonial times, the expertise becomes the place of the frequent disagreements between the discourse of law and the discourse of ‘culture’.

What is cultural expertise? Before addressing the ‘culture’ of cultural expertise, a few words are in order to enumerate what is commonly understood as cultural expertise. Cultural expertise is the special knowledge that enables socio-legal scholars, anthropologists, or, more generally speaking, cultural mediators, the so-called ‘cultural brokers’, to locate and describe relevant facts in light of the particular background of the claimants, litigants or the accused person(s), and in some cases of the victim(s). There is a close link between cultural expertise and cultural defence, and so one can say cultural expertise constitutes the nuts and bolts of cultural defence because it provides the defence for the arguments that are likely to influence the legal outcome of a case. However, cultural expertise differs epistemologically from the typical cultural defence.3 It not only precedes cultural defence, necessarily, but it also exceeds cultural defence, by which I mean it precedes it temporally within the proceeding and exceeds it in scope because it can be requested for a wider range of cases than those of criminal law. In fact, whereas cultural defence and cultural expertise are both likely to be controversial, it is the former that makes the headlines of newspapers by entailing cases where the conflict between majority and minority values becomes most easily apparent (see in this volume Ballard on honour killings and Madsen on terrorism). Cultural expertise, we will see, applies also beyond the typical infringements of criminal and civil law to include less extreme situations such as entry permits, family reunions, adoptions, citizenship, children custody and the validity of marriage and divorce. Most contributions to

Introduction

3

this volume focus on these kinds of less controversial cases. Not that the law in these domains does not affect the lives of the individuals and their relations with society at large (see especially Menski, Holden and Sbriccoli and Jacoviello in this volume), but it is less likely to involve the extreme features of life and death which are typical of cultural defence. As a consequence, cultural expertise is also less likely to be the object of mediatic discourses, and it is less known to the general public. As Renteln puts it: The purpose of a cultural defense is to allow defendants to introduce evidence concerning their culture and its relevance to the totality of circumstances surrounding their case. A successful cultural defense would permit the reduction (and possible elimination) of a charge, with a concomitant reduction in punishment. The rationale behind such a claim is that an individual’s behavior is influenced to such a large extent by his culture that either (1) the individual simply did not believe that his actions contravened any laws, or (2) the individual felt compelled to act the way he did. In both cases the individual’s culpability is lessened. (Renteln, 2004: 187) As with any other expertise in court, the purpose of cultural expertise is to apply a specialized knowledge to a definite set of circumstances submitted to the expert whose considerations must be elaborated irrespective of the legal outcome of the case. And also, similar to any other kind of legal expertise but different from cultural defence, cultural expertise does not take sides – it is irrelevant whether the experts are hired by the court or by the parties. As trivial as it may appear, the neutral aspect of cultural expertise is also its crux. Although social scientists have developed articulated methodologies regarding the relationships with informants in the field and are constantly preoccupied with professional deontology, in court they have often been accused either of not being ideologically disengaged from the parties or of being nothing else than hired guns, saying whatever their lawyers want them to say. The growing popularity of migration and multiculturalism as an object of cultural consumption has meant that cultural expertise is also fictionalized. Crossing Over, a film by Wayne Kramer (2009), would not really have any reason to be mentioned here if it was not for the scene of a rabbi in the film covering for a young Israeli wanting to relocate to the US permanently by pretending he is a teacher of Judaism. The friendly but authoritatively and intellectively limited attitude of the American immigration setting that satisfies itself with cursory enactments of multicultural stereotypes is realistically reproduced. The scene gives an idea of how the image of cultural expertise is tainted by some degree of clever manipulation of the law, either at the hands of bleeding hearts self-appointed as defenders of the weak or at the hands of unscrupulous fraudsters and entrepreneurial minorities using specialized knowledge for their own gains. And we will see

4

Introduction

in this volume that the credibility of the litigants, asylum applicants and perpetrators often overlaps with the credibility of the cultural expert (see Bouillier, Good, Menski, Ballard and Sbriccoli and Jacoviello in this volume). For more than a century, social scientists have been providing expertise in the law courts on a variety of cases related to minority groups and migration, but academic scholarship has only scantly reflected on the reasons of the difficult accommodation of anthropological knowledge within legal proceedings.4 Disagreements about cultural expertise characterize the discourse of the law vis-àvis minorities. Social scientists have pointed out the imbalance of power in the context of cultural expertise (Haviland 2003), which manifests itself through concrete modalities such as hectic rhythms and a forced pace that put the discourse of social science at a disadvantage (Ramos 1999 and, see Holden in this volume). Widespread attention was given to the procedural requisites of cultural expertise and its limitations (Mertz 1994, Rummery 1995, Trigger 1998 and 2004). Dilemmas revolving around ethics, truth and authority have also occupied the minds of social scientists involved in what has been perceived as a somewhat awkward business for the difficult commensurability of anthropological knowledge with the law and legal proceedings.5 Although social scientists have written about these and other issues related to cultural expertise, no scholarly debate has credibly ensued.

Talking expert This volume is the outcome of a scholarly interaction that started in 2000 with Professor Werner Menski when I was a PhD student intrigued by his consultancies as a socio-legal expert for South Asia. I met Professor David Trigger in 2004 at the bi-annual conference of the Commission for Legal Pluralism held in Fredericton, and it was then that I came to know about the normative framework developed for anthropological expertise in Australia. As Australian scholarship attests, the debate is very articulated and at this time highly politicized in Australia (Edmond 2004b). Notwithstanding some scholarly reluctance to widen the debate beyond the specificities of local socio-legal settings, it was quite clear to me that many of the issues faced in Australia would be relevant to the management of multiculturalism in Europe and in America as well. As Edmond (2004a: 4) states: [M]any experts are entrepreneurial: able to deftly traverse a variety of settings and perform in a variety of capacities. To designate experts with positions in international organizations responsible for negotiating health standards, such as the World Health Organization, and who hold professional consultancies to large corporations or trade groups, and undertake research, and possess considerable experience as advisers and witnesses – including some legal qualifications – simply as ‘experts’ is to eliminate some of the complexity associated with, and stimulated by, modern legal and regulatory practice. It excludes – or suggests the possibility of excluding – the disciplinary

Introduction

5

constraints, social character, institutional dimensions and valences of what is presented and recognized as expertise. In fact, cultural expertise even more than other kinds of legal expertise suffers from being compartmentalized and sidelined as applied science (Rylko-Bauer et al. 2006). And as applied science in the public sector mainly, cultural expertise and its related issues are not as appealing as private consultancies; nor do they appear to be dignified enough for a larger scholarly debate. The reasons for this gap are multiple, and not all have been investigated, but field-work on expert witnessing appears daunting. The preoccupation with fitting the requirements of the legal procedures seems to produce ‘keep out’ signals to all scholars who are easily perceived as ‘curious strangers’. Field-workers are often dismissed by defensive clichés such as ‘everything goes according to the book’ (Buskens 2008: 143ff). Other pressing issues, such as consultancy fees and professional allegiances, have been relegated instead to personal communication among experts. It was therefore necessarily out of personal curiosity rather than systematic and institutionalized research that my interest in cultural expertise grew and developed at first. In the UK an established tradition of country-expert consultancies for asylum case law has filled the archives of immigration courts. However, although most authors contributing to this volume, especially Good and Ballard, have published extensively on specific aspects of cultural expertise – no scholarly debate has been raised around the modalities, the conflicts and the formulation of cultural expertise from an involved perspective that, although it might establish an empirical ground for action, is primarily developing from an academic perspective. The first occasion for our informal interactions and exchange of views to find a venue for further elaboration was offered by the international research project, Law and Governance in South Asia, which is led by Daniela Berti and Gilles Tarabout. Conflicts of Law in Transnational Cases, one of the four sections of the project, is constituted by Prakash Shah, Véronique Bouillier and I. Significantly enough, one of the contributions was approved only after removing the re-enactment of an actual case of expertise, which would have made the presentation fall into the realm of applied sciences. Most contributors to this volume met in Paris in November 2009. Clearly we had different approaches, some owing to the different contexts of our research, others because of our multidisciplinary professional backgrounds. We could not avoid some quarrels touching on the quality and experience of each other as anthropologists or as lawyers, on professionalism and on the very qualification of our individual experience as cultural experts. Some degree of competition was also stimulated by a degree of identification on the part of each of us with the legal system we were studying. It was immediately evident, for example, that cultural expertise in the UK asylum proceedings has reached a level of legal sophistication that is probably unmatched in Europe. Nevertheless, it was surprising to realize that in France and in Italy, in spite of the reluctance toward legal pluralism and the stress on the universalism of the law as equally applying to all

6

Introduction

citizens (see Bouillier in this volume),6 cultural mediation plays a de facto role in legal proceedings. Differences in the treatment of our data was also influenced by our different experience; some of us had had only episodically acted as experts or as mediators. Most had a significant number of reports and court appearances under their belts. However, through the course of the workshop some crucial issues stood out as being similarly relevant in the different contexts. These revolved around the terms of the collaboration (or in some cases non-collaboration) between the lawyers and socio-legal scholars, the fuzzy boundaries with advocacy, the commensurability of anthropological and/or socio-legal knowledge with the legal procedure and the uncertainty regarding the reception of cultural expertise by the court. There was a spontaneous agreement that those themes should be pressing issues addressed by this volume. However, as a multidisciplinary team composed of socio-legal scholars with different degrees of specialization and experience in law, anthropology and sociology, we needed to agree on more general threads of analysis and on a common epistemological approach. We decided to adopt a pragmatic and reflexive approach to cultural expertise in law courts with particular attention paid to ethics, wherever this was relevant to our data. Reflexivity Although (and because) each contributor to the present volume would provide a different definition of the notion of reflexivity, we agreed on a pragmatic approach that would be reflexive in accounting for the gaps left by cultural expertise as it is described by law books. We wanted to make evident the links between the legal proceedings in which cultural expertise is accommodated and the lesser known sequences that constitute cultural expertise in its becoming. In so doing, we have all accounted for cultural expertise beyond what is written and done ‘according to the book’, but again, I must add, in slightly different ways. Most of us write in first person, but our styles vary. Some are more subjective (Holden, Ballard, Menski) and some more impersonal (Vatuk, Shah, Madsen, Good and Sbriccoli and Jacoviello). Some contributions deal with a greater quantity of data (Good, Shah and Vatuk); some others engage in the analysis of a small number of cases (Ballard, Bouillier, Madsen and Menski) and two concentrate on a single case (Holden and Sbriccoli and Jacoviello). The first three chapters (Vatuk, Shah and Bouiller) collect the most observational contributions in this volume. They outline the patterns of litigation involving members of South Asian diasporas in the USA, the UK and France. Although reflexivity may be more difficult to achieve within a conventional observational framework, the fact that we all have privileged on one side the praxis or the habitus as our focus for inquiry, and on the other the discourse on the praxis, allows us all always to include some degree of reflexivity. However, the kind of reflexivity that we all had in mind is not the confessional one of conventional social science. Rather it is, in Lynch’s words, the effort to

Introduction

7

extend ‘the hermeneutic circle that encompasses acts-in-context to include the act of describing that very relationship’ (Lynch 1993: 36). Hence we have privileged the analysis of the language and the setting that legitimizes cultural expertise (see Madsen in this volume) and in which cultural misunderstandings arise not only because of conflicts of meanings, but also because of the particular context of the proceedings vis-à-vis a variety of variables: gender (Vatuk and Holden); class and age of the parties (Holden); wording, tone and sequence of questions (Bouiller, Good, Madsen and Sbriccoli and Jacoviello); ethnic belonging of cultural mediator and judge (Bouiller); and kinship (Ballard). All these variables, by contributing to the narrative of cultural expertise highlight also the interface between law and life: the requisites of the law impact on the everyday lives of the social actors involved and on the ways they make sense of it. Thus, a specific narrative is elaborated to serve the purpose of the law (Holden, Menski, Shah and Sbriccoli and Jacoviello). Our reflexivity strives to catch the modalities of the elaboration of those legal narratives that by transforming everyday life into legal proceedings are implementing governance. Hence, although we appeal to constructivism and move against objectivism, we do not trespass over the thin line that separates us from absolute subjectivism. We have not shied away from catching those details that do not have an immediately evident role in the legal proceeding and yet contribute to set the context: Bouiller’s irony on the French judiciary that a loss of understanding South Asian narratives establishes misleading parallels between South Asian and North African practices (p. 85); my own loss of patience for Savitri’s reticence (p. 200), as well as my dilemmas revolving around the difficult adjustment with professional ethics and collegiality (p. 219 and 232); Sbriccoli and Jacoviello’s poetic narratives (p. 172–94); Ballard’s alternation between colloquial and high pitched narrative and his deeply moving plea against culture blindness; and Menski’s irritation about the inadequacies of the British legal system in the management of ethnic diversity (p. 162). Our reflexivity is itself part of the context that we have analysed. For most contributors of this volume, it is at the same time method and object, because it was the only possible way to throw light on those steps of ‘talking expert’ that go unnoticed because they are not part of the formal procedure ‘according to the book’. Culture Along with reflexivity came culture, which is another unsteady ground in the social sciences. Some of us feel ourselves to be less culturalists than others, and some of us feel untouched by the debates about culture in the social sciences, but we all agreed to look at culture for its use as a legal argument, instead of as a set of concepts that would apply to all the members of a given group irrespective of the legal proceedings. Although the premise seemed clear, its realization was not, and this was in itself significant to the complexity of the culture debate. Without dismissing the Geertzian notion of culture as webs of meanings (Geertz 1980),

8

Introduction

this volume focuses on culture as legal argument, whether closely connected with the notion of truth in court (see Good 2007 and Bouillier, Vatuk and Holden in this volume), or as an integrant part of the legal narrative (see Good, Menski, Holden and Sbriccoli and Jacoviello in this volume), culture is rather apprehended as actant, in Bruno Latour’s terminology, of the legal discourse. By investigating the commensurability of South Asian legal practices within the proceedings of the so-called ‘host countries’, culture is scrutinized as a term of the legal discourse uttered in the legal settings – at times as a socio-legal object susceptible to produce legal outcomes – and not as a system of thoughts susceptible per se to legitimize or delegitimize the law practices of ethnic minorities. Ethics Our pragmatic approach informed also the scrutiny of our professional allegiances and ethical commitment within the process of providing cultural expertise. Although the duty of the expert to the court is of paramount importance to set the framework of cultural expertise vis-à-vis legal outcomes, our contributions show that this is not unequivocally understood. Notwithstanding the self-evident fact that socio-legal scientists are called increasingly to provide expertise and that cultural homogeneity is not ensuing from globalization (see Ballard and Menski in this volume), social scientist very speciality, which is the ability to understand and relate to cultural differences, is likely to undermine our own credibility in court. In other words, the reason why socio-legal experts are called is also why they are criticized. Furthermore: our selection of truths, our sequence of arguments within the narrative of our clients and our decisions are likely, even if not directly, to influence the legal outcomes and the life of the individuals involved. To what extent do we, as social scientists, act ethically when purely abiding by the law? Is there any risk of being ethical for the wrong reasons when we defend the mere observation of legal procedure? Can we pragmatically pinpoint the difference between advocacy and cultural expertise? Is it ethnic membership or rather specialization that constitutes the authority of the expert? These questions are addressed by most contributions from the perspective of the ones who can point to the ‘missing what’ because of their close involvement with the praxis (cf Garfinkel 1992 and Lynch 1993: 274).

Organization of this volume The volume is organized into three sections following a trajectory from the macroto the micro-, but always ground on first-hand data. Patterns, the first section, revolves around the question of what the recurrent arguments and mediations involve in transnational litigation. It includes three contributions (Sylvia Vatuk, Prakash Shah and Veronique Bouiller) that investigate ‘cultural’ arguments, ‘cultural’ misunderstandings and proceedings in litigation involving members of South Asian diasporas with a specific emphasis on family law litigation in the US,

Introduction

9

UK and France. The next section, Conflicts, focuses on the context and ingredients of cultural expertise. What are the incongruences, the misunderstandings and the paradoxes of cultural expertise? This section includes three contributions (Stig Toft Madsen, Anthony Good and Roger Ballard) that, on the basis of long-term personal experience as experts, examine the incongruences of cultural expertise – as setting (Madsen) and as discourse that awkwardly translates in law courts (Good and Ballard). The final section, Narratives, focuses on the exportable features of South Asian law practices into the Euro-American legal narrative. It includes three contributions (Werner Menski, Tommaso Sbriccoli and Stefano Jacoviello and Holden) that investigate the elaboration of legal narratives from the micro-perspective of specific cases, thereby illustrating the risk of social scientists becoming mere instruments of governmentality. This book affords a broad spectrum with a pragmatic approach that includes a variety of legal and semi-legal settings (immigration and asylum, family law, nationality and citizenship law and criminal law) and jurisdictions in the UK, Italy, US and France, on the specialized topic of patterns of litigation and expert witnessing. The leading feature of this book is that the authors scrutinize themselves being a talking expert in a variety of settings involving a variety of legal arguments within transnational litigation regarding South Asian diasporas. All authors make the unprecedented effort to reflect critically on the authority of the law and on their own role within the legal procedure in order to investigate the constraints informing and shaping the legal discourse. This book attempts to provide answers grounded on first-hand data and on the contextual conditions of the successful legal narrative from the perspectives of the parties involved: the claimants/litigants; the socio-legal expert/translator/mediator; and the decisionmaking authorities (judge or immigration officer/adjudicators/case officer etc). As a conclusion to this introduction a few words should be added as to why this volume focuses largely on South Asian cultural expertise if its scope is larger than the typical one of area studies. This is partly owing to the institutional framework that has supported our scholarship but also, and more significantly, to the need for us as co-authors to share from the start a satisfactory depth of similarity of research contexts. However, even though we were all acquainted with the context of South Asian litigation abroad, we could not refrain from being engrossed in the comparison of procedural details following the different legal settings, the different branches of the law and the reciprocal socio-legal expectations in relation to the kinds of Foucauldian governmentality that informs the interactions between the law and its subjects. It was this specific depth of inquiry that allowed us to overcome the comparative perspective of the law in the books and to account for local variations, while at the same time maintaining the focus on the modalities of cultural expertise and its relation to the legal outcome. In all contexts scrutinized by our contributions, the expert embodies the struggle between the individuals’ instances and the establishment’s expectation that assures governmentality through a set of technicalities implemented and perpetuated in everyday life. Although justice seems to be increasingly dominated by the so-called artificial

10

Introduction

‘persons’, either corporation or governmental bodies, as Galanter says: ‘[i]t will also depend on the inventiveness of lawyers [and of social scientists] in coming up with new formats and devices for making public policy and effectively controlling APs [artificial persons]’ (Galanter 2006: 1417). Our hope is to have shown the possibility and the potential for a larger scholarly debate on the ‘talking expert’ that respects legal requirements but does not forfeit the specific contribution of the social sciences that resides in the ability to understand difference as opposed to imposing conformity.

Notes 1 For expertise on South Asian laws at the time of colonization see Kolsky (2010: Chapter 3), Larivière 1989 and 1994; Menski 2003: 150–2; Michaels 2001a and 2001b. 2 On the concept of cultural broker see also Messick 1993, Darnton 1991 and Szaatz 2001. The contributors to this volume disagree to different extents on the notion of expert as cultural broker. This notion has been nevertheless used here for its iconic value, some sort of fictional common ground from which to engage in deeper analysis. 3 On the need for cultural defence to be extended to a wider range of legal domains see Renteln 2004. 4 For a history of expert witnesses in court see Ballard 2007b, Good 2007, Gormley 1954 and Rosen 1977. 5 See Angel-Ajani 2004, Clifford 1988, Ramos 1999 and Rosen 1977. 6 See also Renteln (2004: 187, 199).

Part 1

Patterns

Chapter 1

South Asian Muslims and country expertise in the American immigration courts Sylvia Vatuk

In recent decades, as increasing numbers of South Asians have come to study or work in the United States, many immigrants from the subcontinent have had occasion to encounter the American judicial system. While it is not easy even for American-born citizens to resolve their personal or family difficulties by resorting to the law, immigrants are at a particular disadvantage in this regard, owing to the sharp differences between the customs and values of their home countries and those of the United States, as well as the differences between the two countries’ respective codes of law and judicial systems. South Asian immigrants come into contact with the American judiciary in a wide variety of contexts. Immigration proceedings account for the largest number of such encounters, although South Asians also sometimes find themselves in a US domestic relations court – for example, when filing (or contesting) a suit for divorce or child custody – or in a domestic violence court – seeking an order of protection against an abusive spouse, intimate partner or other family member or defending themselves against such a charge. They also may confront the American legal system when they become involved in criminal or non-family related civil cases of various kinds. I propose here to describe some of the circumstances under which South Asian immigrants living in America most frequently have occasion to engage with American law and examine some of the outcomes of such engagements. Because this immigrant population is a religiously heterogeneous one and since distinct codes of family law are applied according to the litigant’s religion in their countries of origin, my discussion focuses primarily upon Muslim immigrants from Pakistan, India or Bangladesh. Although the legal issues that confront Muslim South Asians are in most respects no different from those faced by South Asians of other religions, certain matters, especially those related to Islamic laws and local customs of marriage, divorce, divorce settlements and polygamy, require giving separate consideration to this community.

Methodology In preparing this chapter I have examined some of the published cases involving South Asian Muslims that have been decided over the past 10 years in state or

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Patterns

federal appellate courts and the Supreme Court of the United States. I have also reviewed the growing body of secondary literature by legal scholars in which questions about how the American judiciary has dealt with cases involving some aspect of South Asian and/or Muslim culture, custom, religion or religious law are addressed.1 Finally, I have drawn upon my own ongoing contact with members of the South Asian Muslim community in America, primarily in Chicago, Illinois, over a period of about 10 years, including information from interviews that I and a former student2 have conducted with staff members and volunteers at four organizations that specialize in providing social services and legal advice to South Asian immigrant women.3 Inasmuch as these organizations rely for at least a portion of their budget upon state funding, they assist anyone who is in need of their services, regardless of religion, ethnicity or sex. However, three of the four organizations were originally founded specifically to address issues of domestic violence in the South Asian community4 and their clienteles are still predominantly South Asian and almost exclusively female. Those they serve are not, of course, representative of the South Asian immigrant population in Chicago as a whole, not only because almost all are women and most have been victims of domestic violence, but also because they tend to belong to a somewhat lower economic stratum than that from which the average South Asian American comes (see below). Although wellto-do, college-educated, working women – and occasionally even women of South Asian parentage born and brought up in the United States – occasionally approach these organizations for help, the bulk of their clients are more recent arrivals, usually not highly educated, who have never worked outside of the home, are often unable to communicate effectively in English and have little or no knowledge or understanding of American society and certainly not of the intricacies of American family law.5 Well-educated and financially comfortable South Asian Muslims also engage with American law from time to time and it is their cases that are likely to appear on the dockets of the various federal circuit courts of appeal and state supreme courts and give rise to precedent-setting judicial decisions that are reported and therefore easily available for study. But we learn something different and equally valuable when we try to see what the law and the American courts look like from the perspective of the ordinary immigrant man and woman living within a largely ethnic enclave of a large American city.

South Asian Muslims in the United States There are no official figures on the size of the South Asian Muslim population in the US, inasmuch as the decennial US Census does not collect comprehensive data on either religion or ethnic identity. However, some information on the linguistic and ethnic make-up of the population is available from the Census Bureau’s American Community Survey (ACS), which is administered to a sample of the American population each year.6 Survey responses are aggregated and extrapolated statistically to produce estimated figures for the nation’s population as

South Asian Muslims in the American immigration courts

15

a whole. The most recent ACS report on language use – based on findings from the 2007 survey – estimates that there are over 1,781,000 people in the US (5 years of age and older) who speak an ‘Indic’ language at home: 533,000 of them speaking Hindi and 345,000 Urdu.7 The ACS also asks respondents to self-identify themselves in terms of race, ethnicity and country of birth. It most recently estimated that there are 2,776,000 people of South Asian origin in the US, of whom 2,500,000 identify as ‘Asian Indian’, 200,000 as Pakistani and 76,000 as Bangladeshi.8 There are no official data on the religious affiliation of the members of any of these groups, but if one assumes that the proportion of Muslims in each is the same as in their respective home countries,9 one arrives at a figure of approximately 585,000 Muslims from the subcontinent currently residing in the United States.10 While clearly this is only a very rough figure, it is not inconsistent with some published estimates of the proportion of South Asians within the total Muslim population of the United States. Thus a recent report issued by the wellrespected Pew Foundation conservatively sets the Muslim population of the US at 2.35 million, based on a review of a number of unofficial surveys, including one by their own organization, together with an analysis of data from the 2000 Census on immigrants’ country of origin.11 The report shows American Muslims to be a very diverse group, racially, ethnically and in many other respects. About 30 per cent of American Muslims are native-born African-Americans,12 while most of the remainder are immigrants and their American-born offspring. Muslim immigrants began coming to the United States in significant numbers only after the relaxation of immigration laws in 1965 and most have arrived since 1980. While they hail from almost 70 different countries, the vast majority are of either South Asian or Arab (Middle East and North African) origin. Various sources have put the proportion of South Asians at between 20 and 30 per cent of the total, that is, between 470,000 and 705,000 persons.13 Muslims in America are integrated into the economic mainstream to a much greater degree than their co-religionists in Britain or in the countries of continental Europe. In Britain, France and Germany, for example, there is a substantial gap between the average income of Muslims and that of the population as a whole. In the United States, in contrast, there is little or no difference in this respect between Muslims and Americans of other religions. Their average educational attainment is also quite comparable to that of other Americans. Indeed, some surveys have shown the incomes and educational levels of Muslims of South Asian origin to be even higher than that of the average American. But there is considerable socio-economic diversity within the South Asian Muslim sub-population itself. Whereas a significant – and the more visible – segment of the community consists of well-educated professionals earning high incomes, others are less welloff and many live close to the poverty line. Many of the latter have come in what has been characterized as the ‘third wave’ of migrants to the US, under the policy of ‘family reunification’, which allows well-settled citizens or permanent residents to sponsor the immigration of close relatives. The latter are often less well-educated

16

Patterns

than their sponsors and therefore less well-equipped to establish themselves comfortably in their new country.

Immigrants and arranged marriages Considerations of immigration status often enter into South Asian Muslims’ calculations in the first instance in the context of marriage arrangements. In their home cultures, parental arrangement is, of course, the preferred and most prevalent method of joining two young people in wedlock and it has been carried over to a great extent into the diasporic community as well. It is in fact inadvertently encouraged by US immigration regulations that give preferential admission to the spouses (and children) of citizens or legal residents of the country. This makes anyone with an American ‘green card’ especially attractive as a potential mate. One consequence of this is that families in South Asia are more likely than they were in the past to agree to marry their son or daughter to a complete stranger. Increasingly, instead of relying on personal contacts and references from relatives and friends, they seek matches for their offspring through newspaper or online advertisements or even – if both parties are already in the US – through participation in ‘speed-dating’ events sponsored and run by community organizations or even by commercial match-making companies or websites.14 When one uses such methods of finding a mate for one’s son or daughter, it is difficult, if not impossible, to verify educational and employment qualifications and other credentials and it is therefore easy for an ill-intentioned individual to mislead, deceive and even swindle a prospective spouse or spouse’s family members. The scale of the resulting problems is great enough today that the Indian Government, through its Ministry of Overseas Indian Affairs, has recently taken serious notice of the many problems related to ‘NRI [non-resident Indian] marriages’, particularly those in which an Indian woman’s parents agree to marry her, sight unseen, to an Indian man who resides overseas.15 While not all international marriages are problematic, they do have a number of inbuilt risks, the precise nature of which differs, according – among other variables – to whether the American-based immigration sponsor is the husband or the wife and whether the match joins two complete strangers or a pair of cousins or close relatives, as many South Asian Muslim marriages do.16 In any case, when such marriages do fail, it is almost always the wife who suffers the most negative psychological, social and economic consequences. Mutual adjustment in marriages joining a man raised in South Asia with a woman who was raised or has lived for many years in the West is often difficult because the two are likely to have different values and different standards of feminine modesty, deportment and behaviour, even if, by comparison to American young women of other ethnic backgrounds, the wife was brought up in a relatively sheltered and religiously orthodox manner. Added to the tensions that these cultural differences and misunderstandings create are those caused by frustration and loss of self-esteem on the husband’s part and impatience and resentment on the

South Asian Muslims in the American immigration courts

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part of the wife that arise when he is unable to make a successful transition to life in America. Immigrant men from strongly patriarchal societies such as those of South Asian countries find it particularly difficult to adjust to a situation in which their wives have better language and life skills for surviving in their new country than they do.17 A South Asian husband is typically less fluent in English than his South Asian-American wife. He is unfamiliar with the day-to-day mechanics of getting around and getting ahead in America and often lacks the necessary skills for getting and keeping a good job in his new country. Instead of being able to dominate and control his wife – as he would expect to do in his home country – he is dependent upon her and feels himself to be in a weak and inferior position, not only outside but also within the home. His resentment of this often leads to jealousy and suspicion of his wife. He may accuse her of being too Americanized and having loose sexual morals. Not infrequently he resorts to physical and/or psychological abuse. Marriages joining a South Asian woman to a US-based South Asian man present problems of a different sort. Here it is the wife who is less knowledgeable than the husband about American life-styles and typically lacks his facility with the language. Her complete financial and personal dependence upon him make her especially vulnerable to various forms of mistreatment if she happens to marry a man so inclined. Social services agencies regularly hear complaints of psychological abuse, beatings, confinement within the home, restrictions on a woman’s freedom to associate or communicate with family and friends, financial neglect, abandonment and the like from their female clients.18 Immigrant women are especially vulnerable to exploitation and manipulation by abusive spouses in connection with immigration status issues. In most cases they have come to the United States as the brides (or fiancées) of citizens or permanent residents. Having been sponsored for entry by their husbands (or husbands-to-be), they do not have independent standing with the immigration authorities. By law it is the man’s responsibility to initiate the wife’s petition and follow up on each step of the extended process of obtaining permanent status for her. This gives him a great deal of power, if he wishes to exert it, bending her to his will by threatening to halt or refusing to continue the visa application process. Her position is especially difficult if she has American-born children, whom he could insist on her leaving behind when she is deported and forced to depart for the home country. In 1994, in response to the urging of domestic violence advocates, Congress passed the Violence Against Women Act (VAWA). Updated in 2000 by the Battered Immigrant Women’s Protection Act, it allows non-citizen victims of domestic violence who are married to or recently divorced from US citizens or permanent residents to self-petition for permanent residence, without the help or knowledge of their abusive spouse.19 However, an immigrant woman whose abuser is in the US illegally or holds some other type of visa (as a temporary worker or student) is not eligible to avail herself of these laws. Such women are at

18

Patterns

particular risk if their husbands themselves are deported or decide voluntarily to forfeit their immigration status, in which case the wife cannot stay in the country either. Her only option is to try to qualify for a so-called ‘U-visa’, which will allow her to remain in the US for an initial three years, with the possibility of an extension at the end of this period. This kind of visa, introduced in 2007, is designed for non-citizen victims of crimes, including the crime of domestic violence. The perpetrator of the crime need not be a citizen or lawful permanent resident nor, in the case of a battered woman, must the victim be married to her abuser.20 While these new laws do provide some protection for battered immigrant women, the latter are not always able to take advantage of them, hampered as they are by such barriers as ‘a poor understanding of their rights, manipulation of information by their abuser[s], a distrust of the American legal and immigration system’ (George 2005: 13–14) and a lack of the financial and other resources needed for pursuing a case in the immigration court.21 Another related phenomenon was highlighted in an article published a decade ago in a South Asian Muslim online journal, in reaction to the Chicago murder of a Pakistani immigrant woman by her cab-driver husband, drawing attention to what the writer characterized as a prevailing ‘ghetto culture of illegality’ within the community and some of the problems it has given rise to: When people are living in a country illegally, forging documents and faking identities, they are less likely to seek help for their problems from the right venues … [and] couples who are having problems are not willing to contact social services for fear of being found out. (Sound Vision Staff Writer, 2000). It is unfortunately not unusual for a South Asian Muslim bride to discover upon arrival in the United States that her husband is already romantically and/or sexually involved with another woman, sometimes a cousin or other relative, but more often a non-South Asian, non-Muslim American. He has perhaps only agreed to an arranged marriage in order to placate his parents, who are either unaware of or know but disapprove of his liaison and hope that they can break it off by marrying him off to a home-country girl of their own religion and community. From neither an Islamic religious point of view nor according to the laws of the countries from which they have come is it forbidden for a Muslim man to have more than one wife.22 However, even in a South Asian context such arrangements are rare in practice and difficult to sustain. Polygamous marriages are even less likely to succeed in the US milieu, especially if one of the wives is non-South Asian. Sometimes the American wife is kept in the dark about the existence of the South Asian one; in other cases she is persuaded to adjust to the situation. Either way, the man has little choice but to keep the two women in separate accommodations. Typically he will support the new wife in a minimal manner and spend little or no time in her company, while placing restrictions on her

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freedom of movement, isolating her from contact with others and possibly subjecting her to emotional abuse and physical punishment as well, especially if she outwardly expresses any dissatisfaction with the arrangement. Under American law such a man could be prosecuted for bigamy. But even if the South Asian wife is aware that she has that option, there is little reason for her to take any action in that direction, as it would only call attention to the fact that she may not be legally married to her sponsor and place her at risk of immediate deportation. I have only found one such prosecution reported from a US appeals court. This case was filed by the Pakistani wife of one Abdul Razzak, a resident of Elizabeth, New Jersey. He had lived in the US for an extended period of time and in 1993 had married an American citizen of Hispanic descent and lived with her for three years. In 1996 he had travelled to Pakistan, where he married the plaintiff. Only after she arrived in the US, did she discover that he was already married. Unlike most immigrant women who find themselves in such a position, she soon filed a charge of bigamy against him. But the municipal court dismissed her complaint on the grounds that it lacked jurisdiction, since the second marriage had taken place not only outside of the state but outside of the country. She then appealed to the state’s Superior Court, but ultimately failed to persuade the judge that the New Jersey law that proscribes bigamy was ever intended ‘to make a bigamous marriage contracted outside New Jersey an offense against the laws of this state’ (State of New Jersey v Abdul Razzak Ishaque).

Green card marriages Other sorts of complications arise for South Asian wives when the husband seeks to legalize his immigration status by entering into a fraudulent marriage with an American citizen, usually a non-South Asian, who agrees, in exchange for a lump sum payment or, more rarely, a monthly stipend for as long as the marriage lasts, to marry him and apply on his behalf for permanent residence status. Typically, the marriage is never consummated and the couple does not live together. The contract normally includes a stipulation that once the change of immigration status is finalized, the marriage will be dissolved by a no-fault divorce. So-called ‘green card’ marriages of this kind are usually arranged and facilitated by a professional go-between who, among other services, coaches the couple on how to respond to immigration agents when they are called in for questioning prior to issuance of the permanent resident visa. Fraudulent marriages entered into for immigration purposes are known within the community to be quite common and the intermediaries who are in the business of arranging them – for a substantial fee23 – are well-known as well. While it is impossible to document the actual prevalence of such marriages, it is indicative that a trial search that I conducted in the online files of the Cook County, Illinois, Domestic Relations Court24 found that in a high percentage of cases involving men with South Asian Muslim names,25 the wife had an English given name and

20

Patterns

frequently an Anglo or Hispanic surname as well. For example, in 11 out of 27 domestic relations cases involving a man with the surname Siddiqui, seven out of 20 involving a man named Qureshi and three out of five involving a man named Hashmi – that is, in over 40 per cent of the cases – the wife had a non-Muslim name. Since genuine marriages between South Asian Muslim men and nonMuslim American women are quite uncommon,26 even in a large city such as Chicago, it seems reasonable to assume that many of these divorce cases represent the dissolution of marriages contracted in connection with an immigration scam. Further research would of course be necessary to verify this hypothesis. If the man who has entered such a fraudulent marriage already has a South Asian wife, the two usually continue living together. He may hide from her the fact of his remarriage – and the fact that he has used marital assets to pay for it. Or she may be aware of the arrangement and go along with it, either because she is too timid to object or because she foresees benefits for herself and their family if he becomes a legal resident. Sometimes, however, the husband has reason to be concerned about the possible repercussions of being married to two women at the same time and takes steps in advance to dispose of his first wife. Some of the creative ways in which this is accomplished have been described to me by the staff of social services agencies.

South Asian Muslims in the immigration courts It is perhaps not surprising that it is in connection with immigration issues that the vast majority of all encounters of South Asian Muslims with US law occur. The Department of Homeland Security (DHS) oversees immigration matters through its Office of Citizenship and Immigration Services (USCIS). When an individual has been apprehended by the DHS for entering the country illegally or – more commonly in the case of South Asians – for overstaying a temporary visa, he (or, more rarely, she) undergoes removal proceedings in a Department of Justice immigration court. One option at this stage is for the immigrant to apply for asylum or for withholding of removal, statuses available to those who can show that they have a well-founded fear of being subjected to persecution if compelled to return to their country of origin. The immigrant must also be able to show that his or her ‘race, religion, nationality, political opinion or membership in a particular social group is at least one central reason for the threatened persecution’ (Ramji-Nogales et al. 2009: 11). Someone who currently holds a valid nonresident visa can apply on his own initiative for asylum, directly to the DHS. The recipient of a negative determination from the immigration court or a person whose application for asylum has been denied can appeal to the Board of Immigration Appeals (BIA). If unsuccessful before that body he can lodge a further appeal with the US Circuit Court of Appeals of whatever geographical region the original case was heard in. These courts cannot normally themselves grant asylum, but may vacate the BIA decision and remand the case for reconsideration, if they find that it and/or the original immigration court abused its discretion

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or based its decision on an erroneous interpretation of the law. However, they do this rarely: in the vast majority of cases they defer to the BIA. In 2004, the most recent year for which comprehensive statistics are publicly available, the Department of Homeland Security considered a total of 32,682 applications for asylum, 248 from citizens of Pakistan, 111 from Bangladeshis and 631 from Indians.27 Almost one-third of all asylum applications considered in that year were granted, but success rates varied greatly from one country of origin to another. Applicants from South Asia fared comparatively well. Thus, for example, Bangladeshis succeeded at about the average rate and Indian applicants only slightly lower, while 50 per cent of all Pakistani applications considered that year were approved. The reasons for anticipating persecution that are most commonly cited by South Asian applicants for asylum are membership in minority religious groups (for example, Christians, Hindus or Ahmadiyya Muslims in Pakistan) or political activism in opposition to the incumbent regime (I found two cases, for example, in which former members of the Jatiya Party in Bangladesh feared violent reprisals if they were returned to their homeland). South Asian female asylum seekers (of which there are very few) often cite a fear of social ostracism, forced marriage or honour killing, in retaliation for such socially deviant acts as marrying against their family’s wishes or engaging in extra-marital or pre-marital sexual relations. For example, one Christian woman appellant alleged that she faced either a forced marriage or the prospect of living as a single woman without family support if returned to Pakistan, because while in the US she had married an American man, despite the strong opposition of her brother and parents.28 When immigration authorities make the initial determination on an application for asylum, a major consideration is the assessment of conditions in that country for members of the ethnic, religious or political group to which the applicant belongs. The authorities must of course also be convinced that the applicant actually belongs to that group and that his account of his past history is consistent and ‘credible’. The status of political relations between the United States and the applicant’s home country has also been shown to influence asylum decisions, although this criterion is nowhere explicitly acknowledged to be a legitimate consideration.29 Furthermore, a recent study of asylum decisions has shown that there is also a strong element of chance involved: at all levels of the process there is wide variation among immigration judges in the rates at which they approve asylum applications. It therefore matters a great deal to applicants which judge their case happens to be assigned to (Ramji-Nogales et al. 2009: 333–60)! Another very important variable is whether the applicant is represented by counsel or simply represents himself. If the applicant is able to bring a lawyer along to the initial hearing, his chances of success are greatly enhanced.30 But research has shown that as many as two-thirds of all applicants who appear before an immigration judge do so without the benefit of legal representation (Virginia Law 2008), usually because they cannot afford to engage a lawyer. Unlike the situation in a regular court of law, indigent persons called to appear in the

22

Patterns

immigration court are not entitled to be represented at public expense. It is doubtless at least partly for this reason that only a very small percentage of those who receive a negative determination from an immigration judge appeal their cases to the BIA.31 Even fewer go on to argue their case before one of the US Circuit Courts of Appeals, where it is virtually unheard of for anyone to attempt to argue his case pro se. Like most immigrants from other parts of the world, the majority of South Asians represent themselves at the immigration court and only a small minority of those who receive a negative determination are in a financial position to hire an experienced immigration lawyer to appeal a negative decision. Some who are fighting deportation but lack the funds to pay for legal counsel are able to obtain the services of pro bono lawyers attached to legal aid offices, social services agencies or university-based legal clinics. However, even with a lawyer the rates of success in cases that go on to appeal are very low. I examined, for example, a random assortment of 40 reported cases from all federal and state courts of appeal in which a Pakistani Muslim sought reversal of a denial of asylum. In almost every case the decision of the original immigration judge and that of the BIA was affirmed, either on technical grounds (because, for example, the application for asylum had not been submitted in time), or because the appellant’s testimony was considered ‘not credible’, or ‘confusing’ or ‘inconsistent’, and/or because there was insufficient evidence to show that the individual belonged to a persecuted group or faced a genuine risk of persecution if forced to return home. Only rarely was a case remanded back to the BIA for reconsideration. One of these few exceptions involved an appeal against a removal order issued against a Pakistani man who had overstayed a tourist visa. After coming to the US he had married a US citizen and his I-130 petition for a spousal visa was still pending when he was ordered to undergo removal proceedings in the immigration court. He asked for a continuance of those proceedings until the visa application was processed but the immigration judge refused and on appeal that decision was upheld by the BIA. The Court of Appeals for the Third Circuit vacated the BIA’s decision and remanded the case, on the grounds that the immigration judge had abused his discretion by denying the applicant’s motion solely out of concern that if he granted a continuance, the removal process would take too long to be resolved. The court concluded that the immigration judge, in his over-zealous desire to meet US Department of Justice ‘case-completion goals’, had erred in ignoring ‘the circumstances of the case itself’.32

Cultural expertise and the expert witness Applicants for asylum or withholding of removal can enhance their chances of success by calling an expert witness to testify concerning the human rights conditions in their country of origin. However, the limited data at my disposal suggest that expert witnesses are not extensively used in cases of this kind – at least insofar

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as South Asian applicants are concerned. When a cultural expert is engaged to buttress an immigrant’s contention that he or she would be at risk of harm if forced to return home, his or her participation is almost always limited to writing an affidavit or report to be submitted in evidence, rather than making a personal appearance at court. For example, a search on Lexis-Nexis found data on 2775 asylum appeals filed over the past 10 years by South Asians. However, in only 19 of these decisions was it explicitly mentioned that an expert witness had either submitted an affidavit or provided oral testimony in support of a litigant’s case.33 Nine of the experts mentioned in these decisions are identified by name: seven are white males, two are white females. One of the former had had a significant amount of experience in the immigration court34 and is the individual cited as having provided expert testimony in seven of the cases that were appealed in a federal circuit court. But none of the other individuals whose names were cited in these appellate decisions had been called upon to demonstrate their expertise on more than one occasion. All but three were senior American – and in one case, Australian – academics. They included historians, political scientists and sociologists of religion; each had taught about, carried out research in and written scholarly books and articles on one or more areas of South Asia.35 The remaining three named individuals had been adjudged by the original immigration court to be ‘unqualified’ to speak as experts on the subject at hand. One was a Muslim man, apparently a religious figure of some kind, while another was a US-based Pakistani Christian ‘pastor’. The latter’s qualifications were rejected because he had not been to Pakistan for nine years, had not been affiliated with any church in the 12 years before emigrating to the US, and had only ‘hearsay’ knowledge of the subject matter at issue in the case (Imran Rashid Akhtar v Janet Reno). The third was a white female who is a prominent international human rights lawyer. One of her areas of specialization is the situation of Ahmadis in Pakistan. She was also, for unknown reasons, refused permission to testify (Parmdip Singh v John Ashcroft).36 The qualifications of one of the academic historians were also questioned. His (oral) testimony had been given only limited weight by the immigration judge, on the grounds that he was ‘not an expert in current Pakistani affairs’ and had ‘no independent information to corroborate’ the appellant’s claims. In general, however, it appears that hiring an expert is a good investment. If it does not ensure success in the initial hearing or with the BIA, it can serve the client well if the case is taken to the appellate level. As I have noted, three of the expert witnesses mentioned by name had been rejected by the immigration judge as unqualified and the appeals courts had upheld the initial negative determination. But half of the remaining 16 cases in which an expert witness had been used – and five out of the seven in which the most experienced expert had participated – were remanded or partly remanded to the BIA by the Circuit Court to which they had been appealed. This is well above the average success rate for all immigration appeals to the Circuit Courts.

24

Patterns

These limited data also suggest that it is extremely important to make an appropriate choice of expert. It is also imperative that the expert make very clear to the court what his or her qualifications are and how they directly relate to the issues being raised in the case at hand (Good 2003: 5). Someone engaged as an ‘expert’ who has no formal institutional affiliation and lacks specialized academic training or professional experience in the affairs of the applicant’s country of origin and can therefore claim only a layman’s knowledge of the conditions in that region will not be of much help, even if his or her testimony is not rejected out of hand by the court. One wonders also, in view of the data I have presented here, whether it is not a major disadvantage if one’s expert is a native of one’s own country, rather than a white American. Of course, the sample size here is very small and in both the cases of rejection of a witness from the applicant’s own country, that individual also lacked any institutional affiliation or scholarly qualifications as a cultural expert. Another important factor that determines the weight given to expert testimony is that of how recent the expert’s first-hand experience in the applicant’s country of origin is. Immigration judges seem especially concerned about the possibility that conditions in the applicant’s country of origin may have changed for the better since the expert’s last visit to the country. Conditions may also have altered in some other significant respect that has a direct impact on the applicant’s situation. The same concern is often raised with documentary evidence, such as human rights reports submitted as evidence: judges repeatedly question whether the information provided to them is up-to-date. Doubtless one important factor in the relatively low rate of use of expert witnesses in immigration cases is the cost of hiring a qualified person to provide this kind of service. While a relatively well-to-do litigant can afford to pay the necessary fees, most immigrants who are facing deportation are not in such a position. Even if one is fortunate enough to obtain assistance from one of the organizations that strive to meet the legal needs of poor immigrants, the fact that their budgets are very modest limits their ability to supply clients with expert witnesses. To prepare and argue the immigration cases that they do take on, they have to rely largely on the legal expertise of their own staff or on lawyers sympathetic to their cause who are willing to take cases on a pro bono basis or for a reduced fee. And for ‘cultural expertise’ they also tend to rely on in-house staff, who typically draw upon their own experience in the relevant country, as well as consulting published or online reports put out by government agencies or non-profit organizations such as Amnesty International and Human Rights Watch.

Published or online human rights reports in immigration cases Like legal aid organizations, even private immigration law firms, when putting together arguments on behalf of an immigrant’s application for asylum or appeal against an order of deportation, are more likely to make use of published or online

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sources on the country concerned than they are to engage an expert witness. The ‘country reports’ issued by the US Department of State Bureau of Democracy, Human Rights and Labor are extensively used for this purpose and are frequently cited in the judgments of immigration courts. They consist of annual updates on the current human rights situation in almost every country of the world. They are available online at no cost and thus are a convenient source of information that a lawyer (or other person writing the petition) can use to support the applicant’s contention that he or she is at risk of persecution if compelled to return home. They are, of course, not as useful as an expert witness report tailored to the needs of a particular client, but they are often the best resource available under the circumstances, especially given the fact that immigration judges are known to give them considerable credence and indeed consult them themselves when trying to determine whether an applicant’s claims concerning the likelihood of suffering persecution in his or her home country are credible.37 These anonymous reports typically range between 20 and 30 pages in length and follow a standardized format. Conditions in the country are described under various headings: ‘Integrity of the Person’, ‘Civil Liberties’, ‘Political Rights’, ‘Violations of Human Rights’, ‘Discrimination’, ‘Trafficking in Persons’, ‘Worker Rights’, and so on. Each section begins with a brief summary of the country’s official legal position on the matter at hand and an assessment of the extent to which the relevant laws (if any) are currently being followed in practice. A list of specific incidents of recent human rights abuses follows, with names and dates and, where available, updates on any action taken (or not) by the authorities to punish the perpetrators or provide relief to the victims. For example, the most recent Pakistan report38 begins with a brief run-down of political events in Pakistan within the past year: the assassination of Benazir Bhutto and the results of the subsequent election, the lawyers’ strike, reinstatement of the Supreme Court justices and the repeal of the National Reconciliation Ordinance. It then sums up the human rights situation in Pakistan, stating that ‘the overall human rights situation remained poor’, owing to extrajudicial killings, torture and disappearances, arbitrary arrests, lengthy pre-trial detention, a lack of judicial independence and widespread corruption within the government and police forces, all leading to a general ‘culture of impunity’. Serious problems are said to affect women (rape, domestic violence, sexual harassment, honour crimes and trafficking), children (child labour, bondage, commercial sex exploitation) and religious minorities. The following excerpts are from the section on the persecution of religious minorities in Pakistan: Courts routinely failed to protect the rights of religious minorities. Judges were pressured to take strong action against any perceived offense to Sunni orthodoxy. The judiciary rarely heard discrimination cases dealing with religious minorities. Laws prohibiting blasphemy continued to be used against Christians, Ahmadis, and members of other religious groups, including Muslims.

26

Patterns

Attacks on houses of worship, religious gatherings, and religious leaders linked to sectarian, religious extremist, and terrorist groups … resulted in hundreds of deaths … [T]hrough August sectarian violence killed 215 persons and injured 573 … On July 31 and August 1, Muslim mobs … attacked the Christian communities … near Toba Tek Singh, Punjab, following allegations that local Christians had desecrated the Holy Koran. The mob killed eight Christians and burned nearly 100 houses as police failed to stop the violence … By year’s end authorities had not taken further action to investigate the following 2008 cases: the April beating death of Jagdish Kumar, the May killing of Adeel Masih, or the June bombing at a Shia mosque in Dera Ismail Khan, NWFP [nor] … to address the September 2008 killings of Dr Abdul Mannan Siddiqui and Seth Muhammad Yousuf, two Ahmadi leaders in Sindh. As I have noted above, immigration judges place much confidence in these reports and seem to regard them as even more authoritative than those issued by nonprofit organizations such as Amnesty International – perhaps because they feel that the latter are likely to be unduly biased, in the sense of overstating the extent of human rights violations in the countries they work in. But the judges must also be on their guard lest immigrants use the same documents as sources upon which to base fraudulent claims for asylum! Thus, in his decision on a petition for asylum from a Pakistani man who identified himself as a member of the widely persecuted Ahmadiyya sect, one of these judges observed: Because of the government’s enaction [sic] of legislation against Ahmadis in Pakistan, many Ahmadis are now seeking asylum in various foreign countries … The United States Department of State has warned that some Pakistanis … have falsely claimed to be members of the Ahmadiyya Movement; thus, applicants seeking asylum should have the proper documentation attesting to their membership in the Ahmadiyya Movement. Ilyas Ahmad v Immigration and Naturalization Service

The author as expert witness: personal reflections Occasionally organizations that provide legal services to low-income immigrants ask knowledgeable and sympathetic academics or other professionals to offer their services as expert witnesses free of charge or for a minimal fee. This is the context in which all of my own rather limited direct experience with the practice of acting as an expert witness has occurred. As an anthropologist who for 35 years has carried out research in India on topics related to family, marriage, kinship, intergenerational relations and gender roles – and most recently on issues of women and Muslim family law in the subcontinent – I have been approached seven or eight times over the years by lawyers seeking advice on cases involving their South Asian immigrant clients. Usually they only want confirmation that the line of

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argument they plan to pursue is based on a valid understanding of the cultural context in which their client has been operating. Once I have given my opinion on that point, I rarely hear from them again. In this connection I recall in particular one case of two Sikh men from India who were charged with having entered into fraudulent marriages for the purpose of obtaining permanent resident visas. Both had recently gone to Mississippi in order to wed African-American women. Their lawyer wanted to argue in court that the fact that they were unacquainted with these women before they married was not a reason to suspect their intentions, inasmuch as in Indian culture marriages are frequently arranged between strangers who meet for the first time on their wedding day! Obviously I had to disabuse him of the idea that this line of reasoning held any promise for a successful outcome of his clients’ case. I was first asked to prepare a written expert affidavit a few years ago, when an Australian lawyer approached me by email, asking for my help with the case of a Pakistani man threatened with deportation from that country. The lawyer had found me through a Google search on ‘names’ and ‘naming’ among Muslims in South Asia that turned up an academic lecture that I had delivered in Paris on the topic several years before. His client, who applied for refugee status, had been denied, having been adjudged ‘not credible’, at least in part because he had been unable to provide to the judge the surname of the uncle in whose home, in a remote northwest frontier village, he claimed to have been raised since infancy. When the judge had asked for the uncle’s surname, the client had replied that he always addressed and referred to him as ‘Chachaji’, while others in the village called him ‘Basha Miyan’. What the man’s surname was, he did not know. The judge had found it unbelievable that a person could live his whole life with a man and not be able to identify him by his full name! I wrote up a lengthy explanation of the meanings of the kinship term the client used for his uncle and the nickname by which he was generally known. I expounded upon naming practices and customs among Muslims in South Asia, including the fact that in many communities surnames, as such, are unknown. I also explained that rules of deferential behaviour would prevent a young person from ever using the personal name of an elder relative and pointed out that even if his uncle had a surname, there would be hardly any situation in which his neighbours in a small, closely-knit village would ever have occasion to utter it. The task took me many hours and when I emailed the result, together with the requested lengthy statement of my qualifications as an authority on the subject, I sent along a bill, for somewhat less than the $1000–1,500 amount suggested by an immigration lawyer of my acquaintance as a reasonable rate to charge for a written expert report. However, the lawyer wrote back that he was preparing this case for a nonprofit legal clinic devoted to assisting indigent immigrants, that he was providing his services pro bono and that he would have to pay my bill out of his own pocket unless I was willing to offer my services free of charge – which of course I somewhat reluctantly agreed to do. By this time I had begun to take a personal interest

28

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in the fate of this unknown young man who for reasons unclear to me was so far from home and wished so desperately to remain there. And furthermore, I had to feel a certain admiration for the unknown lawyer, who was not only representing the man free of charge, but had gone to somewhat extraordinary lengths to find someone on the other side of the world who could clear up a point about his client’s home culture that might prove the key to a successful appeal. Two cases in which I became involved more recently concerned divorced women, each with a young child, who had initially come to the United States from India to join their immigrant husbands. Soon they began to be subjected to extreme psychological and physical abuse and eventually succeeded in escaping their marital homes and filing for divorce. This, however, put their immigration status in jeopardy. Both were scheduled to appear before an immigration court in Chicago to argue for permission to remain in the United States. They were being represented by two different pro bono lawyers associated with a law school legal clinic. Ultimately I was only able to prepare a written affidavit for the first of the two cases, because the lawyer who contacted me about the second case needed the report almost immediately and I had other commitments at the time. The situation I was in with that second case exemplifies one reason why many applicants for asylum have to manage without expert testimony: their lawyers are very busy and sometimes have to prepare cases for trial almost at the last minute. Even if it occurs to them to consider the possibility of using an expert witness, they may find it difficult to locate anyone willing and able to prepare a written report on very short notice. This is especially so if – as in the case I have described – the client cannot afford to pay an expert’s fee.39 I found my experience as an expert witness in the case involving the divorced woman more satisfying than that involving the client in Australia, largely because in the case of the divorced woman I was provided by the lawyer with a full draft of the arguments he intended to make at the trial, along with a lengthy statement by the applicant herself, relating the entire story of what she had experienced during her marriage. The lawyer also gave me clear instructions as to what points he particularly wished me to address. The client’s story was a heart-wrenching tale of an educated, employed young woman living in India, whose family had been approached with a proposal by the sisters of a man who had emigrated with them to the United States a number of years earlier. He seemed to be an excellent match: the only son of a family of their own religion and caste, allegedly highly educated and securely employed, earning a good salary. Only after the couple began living together did she discover that he was not only a homosexual but that he was not as well educated as they had claimed and was furthermore unemployed and addicted to alcohol, drugs and gambling. His immediate family members were aware that he had no interest in women but insisted that he marry anyway, in order to preserve the family’s reputation within their religious and caste community. They also hoped that he might be able to beget a child and thereby fulfil their hope of having their paternal line carried on into the next generation.

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As in the previous case, I asked – this time before I submitted the affidavit – to be paid for my work. Once again, however, the lawyer explained that he was volunteering his own time and said that the client was so poor that she did not even have the money to pay for translations into English of some of the Indian documents they planned to submit as evidence of the veracity of her account, and so I agreed to forgo my fee. As before, the woman’s plight had aroused such sympathy in me that I could not justify – to my own conscience – refusing to do what I could to help. I only asked that I be told of the outcome of the case and was assured by the lawyer that he would be in touch once it was resolved. So far, I have not heard anything from him, but I remain hopeful!

Conclusions These personal experiences, limited though they are, have impelled me to give further thought to an issue that other scholars have also raised and discussed at some length. This is the question of where, in truth, the expert’s loyalties lie when she is hired (or volunteers) to prepare an affidavit for a client seeking to regularize his or her immigration status. In law, the answer is clear enough: her duty is to the court and, in the words of the British Civil Procedure Rules: ‘This duty overrides any obligation to the person from whom he has received instructions or by whom he is paid’ (Good 2007: 139). However, when one reads expert affidavits – and here I mean to include not only those that I have written but also those that friends have written and shared with me and excerpts from others cited in the Circuit Court decisions discussed above – it seems clear that most cultural experts endeavour to bring to bear on the case the kind of information that will help their ‘client’ to prevail and to avoid calling attention to facts or expressing opinions that might lead an immigration judge to a contrary conclusion or arouse any doubts in his or her mind about the validity of the applicant’s claims. For example, in the case I have just described, the applicant’s lawyer intended to argue that she should be allowed to remain in the United States because divorcées are so highly stigmatized in her culture that if she were forced to return to India, she would be virtually unemployable and consequently have no way of supporting herself and her sickly young child. While acknowledging the strong stigma against divorce in India, especially among middle-class persons such as herself, and also recognizing the fact that the unemployment rate for educated young people is very high, I felt uncomfortable stating categorically that a collegeeducated, technically trained person would be unable to find work in India, simply because she was divorced. Yet her entire case practically rested upon this claim. Despite knowing that it was undoubtedly my ‘duty’ to indicate to the court that, although she would certainly encounter some discrimination because of her ‘deviant’ marital status, she would probably not be totally without employment options in India, I could not bring myself to say that. If I had been called to testify in person, I would no doubt have had a hard time preventing myself from admitting to something of this kind under cross-examination. But as it was,

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I simply tried to portray the situation in the most general terms consistent with her and her lawyer’s argument, without putting myself out on an uncomfortable and not entirely truthful limb. Speaking for myself and also – without attribution – for two female colleagues who have performed the expert role in similar cases in the past, it seems to me that – even aside from the question of who, if anyone, is paying for one’s services – it is difficult to avoid empathizing with the plight of an individual who finds herself or himself forced to confront, from a position of extreme weakness, the almost Kafkaesque immigration juggernaut.40 This is so even when the client is ‘compromised’ in some way; that is, when the client does not fit the profile of what one of those colleagues has referred to as the elusive ‘perfect victim’ who has followed all the rules from the start and never lied or tried to ‘game the system’ to his or her own advantage. Furthermore, realistically speaking, when one is drawing for potential expert witnesses upon a pool of academics whose main scholarly area of expertise is the history, culture and politics of South Asia – the very kind of expert who, experience shows, is likely to be most successful in the setting of an immigration court – one is more likely than not to recruit a person who is already favourably inclined to sympathize with the aspirations of immigrants from that region of the world, to be critical of national immigration policy and to be suspicious of the fairness of the whole asylum granting and denial process. The situation may be different for those who could be called semi-professional expert witnesses, for whom the work is a regular side job, who take up assignments as often as possible with the primary motive of earning some extra income rather than simply ‘helping the less fortunate’, as I and some of my colleagues occasionally have done. It may be that some of the individuals who fall into that category do not allow feelings of sympathy or their personal political position on US immigration policy to get in the way of making a truly ‘objective’ assessment of the situation they are asked to report upon. But for the rest of us, it is not so easy to remain dispassionate and, as a result, the risk of being caught in a conflict of loyalties is very real.

Notes 1 See, for example, Alidadi (2005/2006), Freeland (2005: 227–46), Quraishi and SyeedMiller (2004: 177–229) and Rosen (2000: 200–31). 2 I thank Nihal Hassan for conducting some of these interviews. 3 I am grateful to Kulsum Ameji of the Chicago Legal Assistance Foundation, Neha Gill of Apna Ghar, Kiran Siddiqui and Maryam Gillani of the Hamdard Center, Molly Sharma of the Chicago Indo-American Centre and five counsellors from Apna Ghar and Hamdard who requested to remain anonymous, for sharing some of their knowledge about these matters with me. 4 Hamdard, in fact, was established specifically to meet the needs of South Asian Muslim women for culturally and religiously sensitive counselling and assistance in resolving marital or other family difficulties. Its founder was a female physician of Pakistani origin,

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5

6 7

8 9 10 11 12

13 14

15

31

the late Dr Farzana Hamid. The Chicago Legal Assistance Foundation provides free legal assistance to anyone with an income below 125 per cent of the poverty level and a special unit within the Foundation focuses on helping South Asian women and those of Middle Eastern origin with their legal problems. It is estimated that 74 per cent of South Asian women in Chicago are immigrants and of these 60 per cent are non-citizens. However, a review of Apna Ghar case files shows that immigrants make up 92 per cent of those seeking help from the agency (George 2005: 4–5). The size of ACS samples varies from year to year and from one survey to another. Shin and Kominski (2010) American Community Survey Reports ACS-12, Washington, D.C.: U.S. Census Bureau. Available at http://www.census.gov/prod/2010pubs/ acs-12.pdf (last accessed 11 May 2010). Chicago has one of the highest concentrations of South Asians of any city in the United States and it also has the second largest number of persons (approximately 40,000) who speak Urdu at home, the second largest number of Gujarati speakers and the third largest number of speakers of Hindi (Grossman 2010). See http://factfinder.census.gov/home/saff/main.html?_lang=en (last accessed 28 March 2010). This assumption is, however, problematic, as it is impossible to confirm that Muslims’ rate of emigration from those countries is indeed the same as that of adherents of other religions. The percentage of Muslims in India is 13.4 per cent, in Pakistan 96 per cent and in Bangladesh 89.6 per cent. Pew Research Centre (2007). Available at http://pewresearch.org/assets/pdf/muslimamericans.pdf (last accessed 1 November 2009). This community is made up primarily of descendants of slaves brought from Africa to North America between the 17th and early 19th centuries to serve as plantation labourers. While in some cases they may have had African Muslim ancestors many generations back, most African-American Muslims today are fairly recent converts or the offspring of converts from Christianity. See the various estimates presented and discussed in Schmidt (2004: 2–4), Leonard (2003: 1–15) and Mohammad-Arif (2002: 32–6). For a cautionary tale illustrating the potential dangers of speed-dating, see the case of S.K. v. F.K., 2010 N.Y. Misc. LEXIS 553. The wife in this case was a Muslim of Pakistani origin, an American citizen, employed as a pharmacist, married to a Pakistani immigrant who completely misrepresented his educational and employment qualifications, as well as concealing the fact that he had been married twice before and engaged to three other women, all in failed attempts to obtain permanent resident status as the spouse of an American citizen. In 2009 the special ‘NRI Cell’ of the Ministry reportedly received 331 complaints from women allegedly tricked into marriage by so-called ‘holiday husbands’, who came to India to marry an Indian woman, took a substantial dowry and then disappeared, leaving their brides behind. Of these complaints, 130 came from the US alone (Dhawan 2010). In such cases the woman’s parents have often paid a large dowry, only to find that after the marriage she finds herself abused, abandoned and/or divorced, living in poverty and, in many cases, threatened by deportation from the country to which she has emigrated. The Ministry has held at least two conferences on the subject, in cooperation with the National Commission on Women (NCW) and has also designed a pamphlet to inform women what to look for when considering marriage to a nonresident Indian. See http://moia.gov.in/pdf/REPORT_ON_Regional_Seminar_ Chandigarh.pdf and http://moia.gov.in/pdf/Report_on_Regional_Seminar_in_ Trivandrum.pdf, both last accessed 18 February 2011. See also Singh (2007) .

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16 No quantitative data are available on the current prevalence of consanguineal marriages among Muslims of South Asian origin in the United States, but researchers in Great Britain have reported a continued high incidence of such unions among Pakistani Muslim immigrants there. See, for example, Charsley (2003), Shaw (2001: 315–34) and Werbner (1990). Shaw, for example, found that 76 per cent of the couples in her sample of 70 marriages in the Pakistani community of Oxford were consanguineally related to one another and 59 per cent were first cousins. Furthermore, she found that young Pakistani immigrants were even more likely than their parents or grandparents to have married a first cousin, suggesting that such alliances, rather than declining in frequency among those living abroad, may be on the rise (pp. 315–16, 318–19), encouraged by British immigration laws that – while not identical to those in force in the United States – similarly make it easier for spouses of individuals already legally resident in the country than for persons with no kinship connections there to gain admittance. 17 For a discussion of similar issues in marriages between Pakistani men and women of Pakistani descent in Great Britain, see Charsley (2005: 85–106). 18 George (2005) makes some of the same points. See also Narayan (1995: 104–119). 19 See http://www.womenslaw.org/laws_state_type.php?id=10270&state_code=US#content10400 (last accessed 13 May 2010). 20 http://www.womenslaw.org/laws_state_type.php?id=10271&state_code=US# content-10372 (last accessed 13 May 2010). 21 George (2005: 13–14). A major barrier is that it is extremely difficult to succeed either with a VAWA petition or an application for a U-visa without a lawyer. While some applicants are able to obtain free legal representation through a legal aid society or pro bono legal clinic, the demand for such services far outstrips the supply of lawyers able and willing to offer them. 22 In India, a Muslim man is permitted to have up to four wives at one time. Under the Pakistani Muslim Family Laws Ordinance 1961 (also in force, with some modifications, in Bangladesh) a man wishing to contract a polygamous marriage must apply to a local government body for permission. An arbitration committee, to include representatives from his family and that of his current wife, is set up to examine his reasons for wishing to remarry and to establish, among other things, whether the current wife has given her consent to the union. Research has shown that official permission to contract a polygamous marriage is rarely withheld. But a second marriage contracted without the permission of the first wife and the local authorities is nevertheless legally valid in Islamic law and therefore under Pakistani law as well. For a detailed discussion of Muslim polygamy under Indian, Pakistani and Bangladeshi law, see Pearl and Menski (1998: 247–78). 23 In the published appellate cases I was able to locate, amounts ranging from $1000 to $2500 were cited as having been paid to women willing to become ‘green card wives’, but informants within the community claim that the going rate for such marriages today ranges between $10,000 and $20,000, most of which is retained by the broker. 24 The county in which the city of Chicago is located. 25 See https://w3.courtlink.lexisnexis.com/cookcounty/FindDock.asp?NCase=&Search Type=2&Database=4&case_no=&Year=&div=&caseno=&PLtype=1&sname=siddi qui&CDate (last accessed 30 October 2009). I chose for this search Muslim surnames that are particularly common in the South Asian subcontinent but are infrequently found among Arabs or African-American Muslims. 26 See the discussion of the negative attitudes of South Asian Muslim immigrants toward marrying outside of their own ethnic-religious community in Mohammad-Arif (2009). 27 Department of Homeland Security (2008), Table 18, Asylum cases filed with US Citizenship and Immigration Services (USCIS) asylum officers by nationality: fiscal year 2004. Available at http://www.dhs.gov/files/statistics/publications/YrBk04RA.shtm (last accessed 5 January 2011).

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28 See Roome Joseph v Alberto Gonzales, 2007 U.S. App. App. LEXIS 17180, remanded, denied again by the BIA and remanded again in Roome I. Joseph v Eric H. Holder, Jr., 2009 U.S. App. LEXIS 19313. In this case, the expert witness for the petitioner and all three of the judges in the Court of Appeals for the Seventh Circuit bench were female. Both decisions were written by Justice Diane Wood, now well known for being actively considered for appointment to a recent opening on the Supreme Court of the United States, to replace the retiring Justice John Paul Stevens (although another woman, Elena Kagan, was ultimately chosen for the appointment). See Ramji-Nogales et al. (2009: 47–52) for data showing that female immigration judges grant asylum at a significantly higher rate than male judges. In the same book, at pp. 202–226, Carrie Menkel-Meadow, discusses other research on the gender gap in judicial decisionmaking and some of the possible reasons for it. 29 See the discussion in Preston (1986). 30 For example, researchers in the Refugee Roulette study cited above found that those asylum seekers represented by counsel succeeded at a rate of 45.6 per cent, while those representing themselves had only a 16.3 per cent grant rate. See Ramji-Nogales et al. (2009: 45). 31 According to one estimate, only 10 per cent of all immigration cases are appealed. In 2007, for example, ‘immigration judges handled almost 350,000 cases, while the BIA issued about 35,000 decisions’ (Virginia Law 2008). 32 Ajmal Hussain Shah Hashmi v Attorney General of the United States, 2008 U.S. App. LEXIS 16236, later resolved in the plaintiff’s favour in Matter of Ajmal Hussain Shah Hashmi, 24 I&N Dec. 785 (BIA 2009). 33 Of course, inasmuch as appellate decisions do not reproduce the entire transcript of the initial hearing in the case but only restate the most relevant portions thereof, the results of this online search do not constitute definitive evidence that none of the remaining 2757 appellants had made use of an expert witness in the original hearing of their case. Furthermore, it is likely that expert witnesses had submitted affidavits and/or appeared in person in many of the successful immigration court hearings as well as in some of the unsuccessful ones that were never appealed and about which no information is therefore available to me. Nonetheless, the figure I have cited does strongly suggest that expert witnesses are not routinely called upon to assist in South Asian immigration cases. 34 I happen to have been personally acquainted with this individual before his recent death and am basing this characterization on a conversation I had with him in January 2006 concerning his experience working in the capacity of expert witness for immigrants from South Asia. 35 There do not appear to have been any anthropologists among them, although it is possible that the discipline was represented among the six experts whose names are not provided and about whom no other information is available. For an exhaustive discussion of the role of anthropologists in immigration courts in the UK see Good (2007). 36 The immigration court’s refusal to allow this expert to testify was one of the reasons the Circuit Court of Appeals remanded the case to the BIA. 37 In several of the reported appellate cases that I have read, the Circuit Court decision refers to an immigration judge’s citation of one of these reports as an authoritative source for his or her assessment of the validity of an asylum applicant’s claims about the conditions he is likely to face if returned to his or her home country. 38 http://www.state.gov/g/drl/rls/hrrpt/2009/sca/136087.htm. See also the 2009 reports for Bangladesh available at http://www.state.gov/g/drl/rls/hrrpt/2009/ sca/136085.htm and for India available at http://www.state.gov/g/drl/rls/ hrrpt/2009/sca/136092.htm (all last accessed 28 April 2010).

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39 See Good (2003, 2007) for similar observations, based on his research on asylum cases in the UK. 40 It occurs to me here that perhaps some research needs to be done on a possible gender gap in expert witnessing, similar to that which has been undertaken on gender differences in decision-making in the judiciary!

Chapter 2

When South Asians marry trans-jurisdictionally Some reflections on immigration cases by an ‘expert’ Prakash Shah

Arranging kinship networks across different countries and legal jurisdictions carries advantages as well as risks.1 Some of those risks are created by various kinds of official and legal restrictions being developed by European countries, including Britain. The focus of this chapter is specifically on marriages among South Asians which involve, on the one hand, a South Asian jurisdiction and, on the other hand, a British jurisdiction. Various circumstances surrounding marriages that take place across such jurisdictional boundaries can be called into question in the context of immigration controls and lead to the involvement of marriage partners in official legal proceedings in Britain. Given the involvement of this writer as an ‘expert’ on South Asian law and culture in different cases concerning South Asians ensnared by legal processes at the British end, this chapter is a contextual reflection on what happens to such cases when experts become involved. It raises questions about how British officials and courts cope with the fact that marriages are taking place trans-jurisdictionally among members of Britain’s South Asian communities and examines how immigration officials and judges decide the legal validity of such marriages and attempts to explain their responses. The role of practising lawyers and experts is discussed in this context through two case studies as illustrations of what can happen to married South Asian couples who have to navigate through official legal processes in Britain by relying on experts.

Trans-jurisdictional marriages and the threat to Western legal systems It is increasingly recognized that members of some diasporic minority or transnational communities in Western European countries continue to marry transjurisdictionally and often in the countries of origin of those communities.2 As Glick Schiller (2005: 32) has pointed out, such trans-jurisdictional practices occur within a wider habitus of ‘transnational social fields’: Whether or not trans-migrants have legal rights in more than one country through dual citizenship or nationality, they may claim social or cultural

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citizenship in more than one country, although the success of their claims is mediated by their legal status. They may also follow customs, norms and values that regulate marriage, interpersonal relations, inheritance, diet, dress, childrearing, modification of the body, etc. that differ from the prevailing legal or cultural norms in one or more of the states to which they are connected. And they may follow these alternative ways of being within a transnational social field that exists beyond the territorial borders and regulation of any one government. And yet, it is well known that governments will try to control such kinds of activities. Specifically, it is evident that political and legal systems in Western countries are changing so as to control the extent to which marriages take place across state and continental frontiers. This concern is increasingly reflected in a series of similar restrictive norms and practices applied across European states to ensure that members of such minorities rely less and less on established preferences for marriage with their kin groups elsewhere.3 Among such schemes is the enactment of a series of controls in recent years which premise the right to family formation and/or reunification upon prospective spousal entrants passing (European) language and culture ‘integration tests’. Other measures include raising the eligible age for marriage for immigrant spouses and their sponsors as compared with the legal age for marriage within the legal systems concerned and the increasing policing of marriages on the pretext of ensuring that such marital unions have been entered into by ‘free consent’ and are not a result of familial pressure or ‘forced’ to any extent (Wray 2009, McGauran 2007, Human Rights Watch 2008).4 The replication of such regimes is reflective of a ‘mimicry’ otherwise described by comparative lawyers in different ways.5 Underlying such practices is the knowledge that trans-jurisdictional marriages add to the minority populations that are seen more and more as a liability to the cultural integrity of European states. Such concerns are then strengthened by a reversion to, or the reinforcement or redeployment of, a notion of legality premised on methodological nationalism. The nation’s cultural integrity must be protected from the culturally and religiously ‘other’ non-Europeans. Multiculturalism, in so far as it has been pursued as a policy response to the consequences of postwar immigration, is now seen as having led to a divergence of norm patterns within European legal orders and as a threat to the cultural order of Europe (Grillo 2005). As Grillo (2007) suggests, there is widely considered to be an ‘excess of alterity’. It is relevant also to consider the extent to which the reaction to Europe’s cultural ‘others’ is the result of a long-standing process established by Christianity. Read in these terms, the xenophobic premises of new laws appear to be the latest manifestation of a Christian cultural order which has a longestablished history of deflecting or converting cultural otherness because the latter is seen as rivalling the former’s own claims to dominance and universality. This religious standpoint of Europe’s dominant cultural and legal systems, as modified through processes of secularization, nationalism and individualism, may therefore

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have some explanatory value for theorizing the widespread nature of the kinds of legal restrictions and conflicts we witness today,6 which manifest themselves far beyond the narrow field of immigration law (see eg Grillo et al. 2009). The barriers to transnational family reunification and family formation that legal systems have been erecting affect less and less those who are brought into the EU/EEA legal order and thus who are considered as ‘legitimate’ migrants with a wide range of family reunification rights. EU law has long recognized a wider range of family members who have the right to accompany EU nationals and there are very limited restrictions on spouses joining them in the ‘host’ EU country. Here too we must be careful to underline the fact that not all EU citizens are treated in the same way. This difference of treatment goes beyond the staggered approach to free movement rights extended to the citizens of the newer European countries who joined in 2004 and 2007, which of course remains a cause of some concern to those who would prefer that such distinctions should not be made among different groups of EU citizens (Toner 2006). Rather, it is evident that holding European citizenship does not guarantee the right of family reunification, especially if one is, crudely speaking, of non-European descent and has chosen to marry someone outside Europe. However, it is not altogether surprising that legal battles to secure family reunification rights for members of minority communities often involve a reliance on the more favourable rules of EU free movement law. This is certainly the case in the UK, where lawyers’ groups have learnt well to exploit the advantages offered by EU free movement law. The list of cases decided by the European Court of Justice (ECJ) that involve one family member who happens to hold an EU citizenship is fairly striking, as is the number of claims made domestically in reliance on the more favourable EU rules.7 Even here, we continue to see problems and there is a tension between the ECJ’s decisions, mostly favouring rights of family reunification, and the discretion available to the states’ domestic authorities to interpret EU norms. This tension can lead to a mismatch between the larger putative aims of integration in the EU and the evidently invidious, and not easy to monitor, agendas at play locally. Given that the concern of this chapter is to evaluate how the validity of marriages conducted under a non-Western legal framework is judged within a European legal order, it may also be relevant to reflect on why there are repeated official attempts to extinguish such marriages, either by mere allegation or by more sophisticated reasoning regarding their lawfulness. We can, on the one hand, adopt the hypothesis that the Christian background of European legal orders is at play here. This may be shown clearly by the manner in which the EU Directive on the right of family reunification for legally resident third country nationals obliges European Member States to refuse entry to a wife in a polygamous marriage where one wife is already living with the sponsor in a Member State.8 Although the UK is not a party to that directive, it has maintained the same position for some years and applied it chiefly to South Asian spouses (Shah 2003).9 On the other hand, we can also hypothesize, as Berman (1983: 39–41) argued a quarter of a century ago, that European legal systems are undergoing a

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crisis whereby law is seen less as a matter of promoting justice and viewed more in terms of expediency and with a cynicism tantamount to an attitude of generalized ‘lawlessness’ (see also Tamanaha 2006). The private international law rules which are called in aid to determine the validity of foreign marriages are either clouded in mist or allow a great deal of interpretive leeway to officials and judges, while no effort appears to be made in the aforementioned directive (or anywhere else) to set out clear rules by which those marriages can gain recognition in European legal systems. This is a serious case of official silence and neglect, which results in those spouses who seek reunification experiencing the kinds of ‘lawlessness’ referred to by Berman. It is a matter of concern that the writing on various EU directives relating to family-based migration shows no awareness of the potential problems concerning the recognition of foreign marriages but concentrates on the more trendy, mainstream European concerns such as the recognition of unmarried cohabiting partners, whether heterosexual or homosexual. Criticism by Murphy (2005: 2) regarding the lack of recognition among academics teaching family law of the transnational reality of many families in the UK indicates that these problems are part of a bigger reality. The expert, once involved in such cases for long enough, realizes the systematic way in which non-Western forms of marriage are brushed aside and will, sooner or later, find that he has entered a highly contested field conditioned by such structural factors.

The regulatory structure for spouse immigrants This chapter takes as its focus some immigration cases that have been decided ‘domestically’ by British officials. While such decisions are made in the name of the British state authorities, they are often first made at visa missions (or by private sub-contracted agencies) abroad whence a spouse seeks entry to the UK/Europe. The geographical location where the visa decision is made will be relevant in influencing what happens factually both prior to and after that decision. Meanwhile, legal representatives tend to be chosen by the ‘sponsor’ spouse located in the UK, who also interacts with those advisers more closely, and the quality of such interaction can potentially influence the outcome of a case.10 As noted, the cases discussed here have been selected on the basis that the contested issue in each is the validity of the ‘overseas’ marriage. This selection avoids a wider, although no less significant, discussion of other requirements for entry as a spouse, of which there are many (some of which we will meet in passing, and see Clayton 2008 for details). Both EU law and the ‘domestic’ immigration rules also allow for partners in durable relationships to be admitted. While the focus here is on those who claim admission on the basis of marriage, it is not unusual to see requests for expert opinions on the potential fate of South Asian individuals who are in nonmarital heterosexual or homosexual relationships and who say they are at risk from others in their home country because of such relationships. Such cases mainly surface as claims for asylum, or for humanitarian or discretionary leave to remain in the UK.

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An applicant for a spouse visa must be married to or be a ‘civil partner’ of a person present and settled in the United Kingdom, who is on the same occasion being admitted for settlement, or has a right of abode in the UK. Additional requirements are that the parties have met; that each intends to live permanently with the other as his or her spouse or civil partner and the marriage or civil partnership is subsisting; that there will be adequate accommodation for the parties and any dependants in accommodation which they own or occupy exclusively without recourse to public funds; and that the parties will be able to maintain themselves and any dependants adequately without recourse to public funds.11 As Sachdeva (1993) explains, these rules have been developed and applied particularly since the 1970s and mainly in response to South Asian family-based immigration. A grant of ‘indefinite leave to remain’ (the UK’s equivalent of ‘permanent residence’) is made after a probationary period of two years from initial entry, and this gap may cause some difficulties because of the imbalance of power between spouses with control in the hands of the British resident spouse or his/her family. A ‘domestic violence concession’ has been issued by the UK Border Agency and it applies when there is evidence of such violence, which exempts the affected spouse from completing the two years in the marriage. However, it is not always readily accepted that the concession should be applied and expert intervention may be required to draw out the specifically South Asian cultural elements conditioning the circumstances of abuse or violence and to describe any limits a person in those circumstances would face in seeking help from state agencies. There has been some judicial recognition of such problems caused by the supposedly cultureblind framing and implementation of the concession. In one case, which eventually went up to the Court of Appeal, the immigration judge noted that the conditions imposed by the concession undermined the purpose of the domestic violence policy and discriminated against Asian women who could not communicate effectively in English and whose cultural context constrained them from acting independently.12 When a married woman enters the South Asian family of her in-laws, she may be the ‘outsider’ and can be in a vulnerable position and subject to abuse, especially when her natal kin live some considerable distance away in a South Asian country. Expert evidence may well be necessary to elucidate the family dynamics which have led her to rely on the domestic violence concession. Except for the requirement to have met, provisions similar to those applying for spouse visas are set out for unmarried or same-sex partners whose relationship has lasted for two years or more.13 Furthermore, similar provisions exist for the family members of the largely economic and student migrants admitted under the so-called ‘points based system’.14 Specific rules also exist for persons reuniting with those recognized as refugees, and these rules differ from the standard rules of reunification to the extent that the marriage or civil partnership must not have taken place after the person granted asylum left the country of his former habitual residence in order to seek asylum. If, however, the marriage or partnership

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postdates the exit from the country of origin, it is open to the applicant to rely on the ordinary rules for family reunification. However, the disadvantage in resorting to the ordinary rules for family reunification is that the applicant cannot avail of the rules specific to refugees which exempt her from meeting the ‘no recourse to public funds’ which are applied to other spouses.15 For persons seeking admission to the UK on the basis of marriage or partnership with a European Economic Area (EEA) citizen, the applicable EU legislation is now Directive 2004/38.16 As with the legislation it replaces, that Directive is silent on the issue of the grounds for determining the legal validity of marriage, decisions on which are left to the national Member State authorities. Another issue which has emerged in the UK is whether a non-EEA spouse or partner must already be lawfully resident in another Member State prior to seeking admission, or whether the spouse may be anywhere else in the world when applying for a spouse visa. The UK’s implementing measure, the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003), takes the position that the spouse or partner must already be lawfully resident in another Member State before seeking admission, a stance also adopted by several other Member States. Conversely, when a non-EEA national spouse or partner seeks entry from outside the EEA, UK policy is that they must qualify under the abovementioned domestic immigration rules, which impose additional criteria, including an intention to cohabit and the need to demonstrate non-reliance on public funds. This interpretation has not been favoured by the European Court of Justice in the Metock case, although evidence from legal practitioners suggests that the UK Border Agency has responded by delaying decisions on such cases. Rule changes introduced in the UK in November 2008 raised the eligible age for the spouse seeking entry as well as for the resident spouse who ‘sponsors’ the entry from 18 years to 21 years.17 The declared policy reason behind this change assumes a direct correlation between younger age and likelihood of ‘forced marriages’, although whether the new rules would achieve the aim sought was contested by academic research commissioned by the Home Office but later overridden by it, as were a number of negative responses to the government’s consultation on raising the age limit for those applying for a spouse visa (Hester et al. 2008, Chantler and Gangoli 2009). That kind of action has led to the government’s approach to ‘consultation’ also being criticized, given that the government appears bent on pursuing a predetermined agenda (Wray 2009: 605–8). In an initial judicial review challenge, the Court of Appeal found that the rule change was unlawful.18 Among the arguments raised against the rules was that the new rules violated Articles 8 (respect for private and family life) and 14 (nondiscrimination) of the European Convention on Human Rights (ECHR). More generally, however, arguments based on the ECHR do not succeed, underlining the marginal relevance of the ECHR in restraining states’ ability to control spouse entry and residence, constituting one of the failures of the European human rights protection system.19 More specifically, in the present context, decisions determining the validity of a marriage seem to be proofed against human rights

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norms, the interpretation adopted by the Immigration and Asylum Tribunal being that the actual existence of family life in the form of cohabitation must be demonstrated.20 Applicants relying on Articles 8 and 14 of the ECHR have similarly not met with success in cases involving the non-recognition by the UK immigration authorities and judges of adoptions taking place in India under Hindu law (Shah 2009).

When the ‘expert’ intervenes The selection of cases made here has a multi-level relevance. It helps us to focus on the core problem of how and to what extent marriages contracted abroad by recourse to a South Asian legal system are recognized by the UK legal order. It also reveals evidence of how the immigration control system is designed to, or in practice has the effect of, keeping certain forms of marriage, and those married persons, out of Europe. Certain official practices, operating at a rather low profile, and largely out of the purview of the general legal community, and not necessarily reflected in widely reported legal decisions, act in invidious ways upon the individuals concerned. Although this chapter is restricted to a consideration of South Asian cases emerging within the immigration control system, the selection may also have more general relevance for studying how the British legal order acknowledges the validity of non-European marriages and the laws under which they are solemnized. At this more general level, the cases demonstrate how a form of eurocentrism implicitly operates by keeping other rule systems and ‘distinct legal institutions’ at a distance through the application of European assumptions about legitimate familial relationships.21 However, it must be noted that different parts of the British legal system often do not speak with one voice on the legal validity of overseas marriages. In an account of a Gujarati Hindu case, Menski (2007, and see the chapter by Menski in this volume) shows that while immigration authorities might take one stand on the validity of a previous divorce and, hence, of a new marriage, the family courts might take another view. It can work the other way too, for example, when the immigration authorities have recognized a marriage prior to entry, but, when a social security or pension claim is made, the issue of marriage is reopened for examination.22 This is apparently quite legitimate according to the English Court of Appeal, which decided a Bangladeshi case where a nikah had been recognized in previous immigration proceedings, but, when the widow made a claim for a pension, its validity was doubted on the somewhat spurious ground that her ‘marriage deed’ postdated the nikah.23 Although that case went through four adjudicative levels, no expert evidence regarding the validity of the marriage was obtained as lawyers chose to pursue points of administrative law instead. This illustrates how lawyers often take charge of a case in a way that is at variance with the interests of the individual involved. Sometimes the intervention of an expert can help to refocus the case in the right direction as long as that expert can adequately tackle the legal representatives. Still, it is sometimes difficult to judge which

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account of the legal position regarding a particular issue is authoritative, when different official agencies maintain divergent views, often for different underlying policy reasons. This again illustrates how contemporary official law seems, for reasons of expediency, to be entirely subordinated to underlying policy goals at the expense of legal security or certainty for individuals. In the two cases discussed here in detail, I became involved as an ‘expert witness’ over the last two years in the first one and, in the second one, my involvement went on intermittently for somewhat over four years. In both, I was initially called upon by the legal representatives, who were being instructed by one of the spouses, to provide a written reasoned report regarding the validity of the marriage and divorce respectively according to Muslim law and under the laws of the countries concerned. My position as an expert meant that I was able to have access to various documents and emails relevant to the case that carried a range of information – an account of the personal story of the couple and witness statements explaining the circumstances under which they got married or divorced, as well as the official documents setting out the (very thin) reasons upon which the visa officer based the refusal of entry, and what happened in the aftermath of an appeal hearing. It should be noted, given the different background circumstances of each case, that not all of this information was obtained by me in these cases, illustrating the vagaries of information flow. An expert is obliged to act bearing in mind that his primary duty is to the court hearing the matter and not to the party instructing him.24 The Home Office does not generally instruct an expert, although it frequently relies upon its own Country of Origin Information (COI) reports, drawn from publications written for official bodies and NGOs, to back up its case.25 This makes it probable that the expert in such cases is viewed as ‘batting for one side’ in the legal challenge which can lead to fierce attacks on an expert’s report or hostile cross-examination.26 In one such case involving an Ahmadi woman from Pakistan who had sought asylum in Britain, the soundness of my previously written report was the only issue at stake at the hearing, which meant that the lawyers on both sides tried to squeeze a particular account of the Ahmadis’ situation in Pakistan out of me. It often happens, however, that the Home Office will not defend its position at an appeal hearing, or it may shift the grounds of refusal before or during the hearing, thus setting up a ‘moving target’ for the appellant. It is not always possible for the expert to know the outcome of the cases since the instructing legal representatives will generally settle for a report but will not necessarily communicate back the results of the legal challenge, again limiting the information flow to the expert.27 The evidence presented here is nevertheless not without value for identifying the kinds of visa refusals which come up, how applicants are treated and what experts do in the legal process. The resulting legal decisions may also not be reported in the officially available sources, so what happens in this field often occurs ‘below the radar’ of those researchers focusing only on those sources. Neither of the case studies discussed here has seen the light of day in the form of reported decisions. The reporting of cases is managed by judges at various

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levels in the judicial system and those decided by the Asylum and Immigration Tribunal (AIT) go through a non-transparent process of selection. Reported cases are selected from those at ‘reconsideration’ stage, while first instance immigration decisions, as with the cases discussed here, are never reported. We cannot therefore know how representative a reported case is. It may well be chosen for the impact it can have in signalling particular lines of refusal, or for its impact on certain types of claims made at a particular period. Meanwhile, those decisions which might favour intending migrants may not turn out to be favourable to litigants in general practice so that the same issue may have to be frequently litigated. In its recent mailing to members, the Immigration Law Practitioners’ Association (ILPA) expressed a similar observation: ILPA has long protested that all too often members are forced to litigate the same point again and again, because the UK Border Agency does not apply the precedents established by our successes in the courts, or by the Agency’s settlement of cases, to subsequent cases.28 This could be a situation of bad management on the part of the UK Border Agency or, perhaps more likely, a way of simply refusing a visa first, and then leaving individuals to find ways to challenge the refusal, if they can.29 This then leaves much to the fate of the parties – what sort of ‘connections’ and support they have within society, and what kind of legal advice they can secure. As we see below, the UK Border Agency often maintains a refusal doggedly up to the point of appeal even when ways could be found to settle a case, saving everybody’s time and money. Both cases discussed here concern South Asian Muslims. As the other cases discussed in this and other chapters demonstrate, however, this does not mean that only Muslim marriages are somehow ‘problematic’ for the British legal system. It remains a fact though that many cases concerning Muslims and the interpretation of Muslim laws from various parts of the world continue to emerge prominently in European legal systems.30 While this focus and academic attention may not be welcomed by some Muslims, and even resented by some non-Muslims, it remains legitimate to speak about and discuss the kinds of cases we are confronted with as participants in legal systems and as observers concerned about what official legal systems are doing. We ought to bear in mind, however, that research concerning some ethnic minority communities takes place in an increasingly difficult atmosphere as the people in question feel that they are under a microscope, resent intrusion into their lives, are suspicious of the uses to which the information gathered will be put and are not always happy about the portrayal of their religion. An unregistered nikah The first case involved a nikah contracted in Delhi, India and would immediately strike anyone familiar with South Asian law as odd. It concerns a refusal to

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recognize an unregistered nikah in a country with which the British authorities should be more than familiar, while the form of marriage solemnization was hardly unusual. A, a Bangladeshi woman, was working in the UK, having entered under the so-called ‘Highly Skilled Migrant Programme’ as a psychiatrist. She was very well paid in her job, and presumably also paid a lot of tax to the UK Government. On a trip to India, she met B, a businessman from Kashmir. The two liked each other, and they decided to marry. She returned to India for the marriage which took place in a mosque in Delhi in the presence of relatives, including A’s parents who had come from Bangladesh for the occasion. The couple were provided with a ‘nikah certificate’ by the mosque where the marriage took place, a kind of standard-form nikah which appeared to be taken (torn) from a book of many such standard nikah certificates. When B applied for a spouse visa to join A in Britain, he was refused. The ECO alleged that the nikah certificate was torn on one side and therefore he entertained some doubts about its authenticity. He refused B’s application on the basis that the marriage was not valid. The couple saw each other again when A took a trip to India once more to be with B. The legal representatives sought out by A contacted me to write a report on the validity of the marriage. When I was called, the legal representative was attending the first appeal hearing of the case and told me over the telephone that the Home Office Presenting Officer (HOPO) had, just prior to the hearing, raised the issue of why the marriage had not been registered. I was therefore requested to write a report on the need (or otherwise) for official registration of a Muslim nikah in India. Since I could not prepare a report immediately that afternoon, the appeal had to be adjourned while I wrote the report. It appears that the immigration judge was not prepared to rule on the issue, even though it would not have taken much effort or research to find out whether a nikah must be registered in India to be valid, although the published guidance issued by the UK Border Agency does not explicitly address this issue. Presumably, if the Indian law had changed to require Muslim marriages to be registered with an official authority, it would have been well publicized and known to the British diplomatic and visa authorities in India. It may be that the judge considered that his hands were tied since he could not reach his own conclusions as to the validity of the nikah without evidence proffered and evaluated by both sides to the case, a feature of an adversarial system. Neither the legal representatives instructing me, nor the barrister they had engaged for the appeal hearing, were sure about the legal position regarding the nikah. The matter had actually already begun to become slightly more complex at the first hearing. The HOPO was arguing that marriages must be registered according to a new ‘marriage law’ in India. Her source of information was the latest Country of Origin Information (COI) report issued by the UK Border Agency, which cited the US State Department (USSD) Report of 2008 as follows: On March 17, the All India Muslim Personal Law Board released a new Shariat nikahnama (marriage law), applicable to both Shias and Sunnis, that

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makes registration of marriages compulsory and expands the rights to women. For example, the new marriage law prohibits divorce via text message, e-mail, or telephone, and the wife can file for divorce if her husband forces her to have sex. I was informed by the legal representatives that this alleged position was actually a misquote from the original USSD report of 2008 which in fact states: On March 17, the All India Muslim ‘Women’ Personal Law Board released a new Shariat nikahnama (marriage law), applicable to both Shias and Sunnis, that makes registration of marriages compulsory and expands the rights to women. For example, the new marriage law prohibits divorce via text message, e-mail, or telephone, and the wife can file for divorce if her husband forces her to have sex. The only difference between the two quotations is the word ‘Women’, which qualifies the type of personal law board being referred to. Thus we had a misquotation of the position regarding the nikah in Indian Muslim law by the HOPO, citing a UK Border Agency report which, in turn, cited an official report issued by the United States Government! In my report, I first stated that Muslim marriages remain valid in India if celebrated in any accepted form under the general Muslim personal law. This legal position derives from an early period in South Asian history but is ratified by a piece of British colonial legislation in India – the Muslim Personal Law (Shariat) Application Act 1937 (Pearl and Menski 1998: 41). The form taken by the marriage ceremony in question was not unusual and complied with the practice of Sunni Muslims of the Hanafi school, which I assumed both parties to be. The ‘nikah certificate’ issued by the mosque reflected all the basic issues of concern to Muslims for a valid marriage. The fact that the certificate looked torn at its edge was easily explained by the possibility that it was taken from a book containing such standard certificates. Owing to the twist to the case given by the HOPO’s citation of the USSD report, some more clarification was required, however. I argued that regardless of which body actually issued the ‘Shariat nikahnama’ we had to be sure about what the value of such a nikahnama was under Muslim law as understood in India. First, the translation of the nikahnama as a ‘marriage law’ was incorrect. A nikahnama is merely evidence in writing of a marriage contract. Neither of the Personal Law Boards mentioned have any official status, although they do act as consultative bodies that represent the interests of Muslims, particularly on matters of personal law, before the Indian state authorities. The issuing of a standard nikahnama is not a unique attempt for such Muslim non-state organizations31 nor was it likely to attain the assent of the majority of Muslims in India since it is thought of as going against some essentials of a Muslim marriage. The Muslim bodies favouring the adoption of such nikahnamas as standard contracts seek to introduce mechanisms for the protection of women, but that does not

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make these nikahnamas binding by any means; instead, they often have the result of putting many conservative Muslims off because of their seemingly liberal ideals. The mentioned ‘Shariat nikahnama’ did not alter the legal position that an unregistered nikah continues to remain valid in India, and this situation is not likely to change anytime in the near future.32 At the rehearing of the case a few weeks later, it proved fairly easy for the sponsor and the legal representatives to make their point regarding the validity of the marriage. As part of the evidence, A and B had a declaration from the imam who had ‘officiated’ at the wedding and from a High Court advocate in India stating that the marriage certificate was valid in India.33 The immigration judge was, I was later told, critical of the ECO and the HOPO’s treatment of the case and advised that the matter be reported to the ombudsman. It was clearly one of those cases where the indefensible was initially being defended by the Home Office, which had, however, not bothered to send any representative to the rehearing to defend its position. Still, the case must have proved fairly expensive for A and B who were not legally aided and had to wait for longer than a year to be reunited in Britain. At the end of the hearing the immigration judge gave his verbal assurance indicating that the appeal was successful, and this was confirmed in the written version of the decision sent about two weeks later. Remarriage after divorce The second case initially concerned the validity of a divorce in Bangladesh but later became an immigration issue when the woman in question, C, remarried and tried to sponsor her second husband, D, to come to the UK. In fact, the problem of the validity of a second marriage after a divorce comes up fairly frequently because visa officers tend to doubt whether the earlier divorce was valid and therefore whether the second marriage is valid. However, I came to be involved in C’s case when she was seeking clarification about whether her divorce in Bangladesh was valid for a family court case in England. The issue came to the family court in the following way. C was herself born and raised in Bangladesh and married a British resident Bangladeshi man. The couple split up after two years of marriage and she (presumably having obtained indefinite leave to remain in Britain after that marriage) returned to Bangladesh. She began divorce proceedings in a family court in Sylhet and managed to obtain the divorce. On what grounds that divorce was granted is not clear, although it seems evident that the Sylhet family court was satisfied that there were sufficient grounds for the divorce to be granted. Upon returning to Britain, she sought advice from an ‘Asian women’s project’ about the possibility of her legally remarrying and she was referred to a solicitor who advised her that she would need to start divorce proceedings again in an English court. They warned, wrongly, that the Bangladeshi divorce she had obtained would not be recognized in England. She therefore started divorce proceedings through another set of solicitors, but her ex-husband objected to those proceedings because, he claimed (rightly), that the couple were already divorced.

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The English family court instructed the solicitors to obtain an expert report on the validity of the Bangladeshi divorce. I became involved at this stage and was asked to provide that report. It was fairly easy to see, on the basis of the evidence and the Bangladeshi court documents, that a divorce had already been granted by the Sylhet family court. The English family court therefore dismissed the divorce petition on the basis of my opinion that a valid divorce had already been obtained in Bangladesh.34 However, when C later married D in Bangladesh and D applied for a spouse visa to come to Britain, he was refused. The visa officer rejected his application on the basis that there was no final divorce from an English court, presumably ignoring the evidence of the Bangladeshi divorce. I was informed of D’s visa refusal by an email from C, who asked that I help in the couple’s immigration case since I was privy to the earlier proceedings and knew about C’s divorced status. I replied that I could not write a report in the short time between C’s email and the impending immigration proceedings, but sent her the report which I had prepared for the English family court proceedings. Although it does sometimes happen that a desperate individual contacts me directly, the normal practice and expectation is that the legal representatives do so. There could be all kinds of reasons ranging from financial costs to distrust causing an individual not to contact lawyers and channel inquiries through them. It also not infrequently happens that resource-stretched lawyers will put the onus on an individual to contact an expert directly. In this case, I did not mind providing a copy of the first report since it was evident that the visa refusal was not well grounded. It so happened that the immigration judge did accept, on the basis of my report, that a valid divorce had already been obtained in Bangladesh and the couple were successful in their appeal against the refusal of a visa to D. When I inquired from C some six months later about D’s visa she informed me that they were still waiting for it to be issued. One of the issues this case throws up is how individuals who seek to ensure that their legal position is secure can be made to run from pillar to post often as a result of a faulty understanding on the part of their legal advisers about the relevant overseas legal system and a lack of knowledge of how private international law rules can be used to facilitate recognition of foreign marriages and divorces. It may also be that lawyers adopt the ‘safer option’ and advise on recourse to English legal fora so that there is less uncertainty afterwards. It is not beyond the bounds of possibility, however, that some lawyers will act in their own interests, rather than their client’s, by trying to keep hold of a case. In this case, the attempt to start divorce proceedings in the English family court was frustrated when C’s ex-husband rightly contested the English divorce proceedings on the ground that they were already divorced. How many times should one have to divorce after all? In fact, in this case, the matter seems more straightforward than in other cases where a divorce has been obtained by less formal proceedings abroad which are then denied recognition by reliance on English private international law rules which predicate the validity of a divorce upon it being obtained by ‘judicial or other proceedings’. The case of H discussed by Menski (see chapter by Menski in

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this volume) is an illustration of the complicated twists and turns a case may then take, resulting in much personal distress and a loss of trust in official law. In some cases that take place in family law fora, it is not unusual to see one or the other spouse taking cynical advantage of the different perspectives on divorce taken by legal systems. Meanwhile, it is clear that, over time, British visa officers have learnt to question earlier divorces and consequently the validity of new marriages – causing much expense and distress – even when arrangements have been made by the parties to ensure a smooth outcome, as in C’s case. In the end, it is through expert intervention, rather than merely straightforward advice from practising lawyers, that cases such as C and D’s can sometimes be resolved satisfactorily.

Conclusion Rather than concluding definitively by distilling what we learn from the foregoing discussion, it may be appropriate to open up the field with a few final words. There is no real conclusion anyway since life goes on, even though a nice end to our stories might be the final reunification of the spouses in their chosen country of residence after the issuance of a visa. One problem identified in this account is how individuals try to do the right thing or ‘play safe’ by seeking legal advice but are still penalized or misled by private or public legal agencies. The role of the expert becomes particularly important here as a kind of mediator, ostensibly providing informational input to the official legal system in Britain, while showing an awareness of the circumstances surrounding the litigant’s case and the sea of normativities at play in the case. The formal expectation of the official legal system that an expert position himself as an impartial source of information is not all that easily achieved in practice. He still risks his evidence being dismissed, his expertise being called into question or even being abused – all of which I have experienced. The fact that one’s own sense of justice is offended often generates an added stimulus to be involved in official legal proceedings. In the present context, that can occur frequently when one sees what Berman refers to as the lawlessness or instrumentality behind official legal practices and claims in a climate that increasingly reeks of a wider backlash against alterity. Trans-jurisdictional life may well be on the increase in the world and it is not likely to be unidirectional, that is, only heading to the West, an assumption which has often lurked in migration debates and scholarship. For example, a BBC Radio 4 series on ‘The New Global Indians’ broadcast in March 2010 documented and discussed the rise in recent years of a ‘return migration’ to India of individuals who had emigrated to the United States and Britain. The kinds of marriages among South Asians which have been discussed in this chapter are thus part of a wider global phenomenon, producing legal and other effects in more than one location and jurisdiction, and which are likely to become of increasing importance in legal practice. This chapter therefore scratches the surface and largely focuses on action at the British end, although it is evident that legal effects are also felt across

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South Asia as a result of the trans-jurisdictional nature of social fields. Failed transjurisdictional marriages and the resultant acrimony between spouses can now frequently lead to claims of harassment and the possible arrest of, and criminal charges against, a spouse or members of his family in India, and such cases should be on the research agenda. The cases we have seen at the British end thus take place within a wider background of interplay among different jurisdictional orders as well as among legal fields within a state (for example, family law and immigration law in Britain). Further, one could just as well have discussed intra-familial disputes or, for that matter, the field of divorce. One can imagine, therefore, that the role of experts in the kinds of cases discussed is potentially expanding, given what appears to be an explosion in transnational and, therefore, trans-jurisdictional activity and living. Meanwhile, quite how one qualifies as a ‘legal expert’ is not very clear and the field remains relatively open. A ‘legal expert’ could be an advocate from Ahmedabad, an English barrister turned alim who works in one of Britain’s Muslim Arbitration Tribunals, or an academic scholar who researches issues concerning ethnic minorities and the law. One of the important by-products of working as an ‘expert’ while being within an academic environment is the instructive potential of the experience some of which this chapter attempts to document. Naturally, it adds a new dimension to the kinds of ‘fieldwork’ one can do and also teaches one something about how the official system operates from a particular privileged perspective. Teaching students how to act as experts could be another potential outcome of engagement in this field, given that there are obvious informational deficiencies and injustices within the present set-up.

Notes 1 See Ballard (2009a), discussing trans-jurisdictional migrant networks within the global context of North–South relations. 2 For an overview of the trends, see Beck-Gernsheim (2007). Given the wide dispersal of South Asian communities globally, ‘country of origin’ retains only a limited purchase as a useful concept. For evidence of more complex networks leading to trans-jurisdictional marriages among Sikhs, see Mand (2002). 3 For an account of discriminatory immigration controls applied primarily to South Asian spouses, mainly husbands, see Sachdeva (1993). For immigration restrictions on spouses and other family members through various other methods, including questioning the veracity of family relationships, finding problems with documentary evidence and casting doubt on the credibility of applicants, see Juss (1997). Both writers demonstrate forms of ‘othering’ at the appellate and/or judicial review stages as well as during initial decisionmaking at visa posts abroad. For more recent evidence, see Clayton (2008: 295–316). 4 These contemporary restrictions in several European countries are increasingly beginning to resemble immigration controls of the late 19th and early 20th centuries applied in what is now South Africa and Australia, where language tests were also being used to reject non-European immigrants. 5 See Antokolskaia (2006: 16–23) for uses of the related terms ‘harmonization’, ‘convergence’, ‘transplantation’ and ‘borrowing’. The term ‘mimicry’ simply adds to the conceptual arsenal with potential for further development.

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6 It is possible to argue that secularization is itself an outcome of a process set up by Christianity because of its ‘dynamic of universalisation’: see Balagangadhara (1994) and de Roover and Balagangadhara (2008). Generally, on modern states assuming powers over areas of the law which were previously the domain of the Church, see Berman (1983: 1–46) and for details on family law see Antokolskaia (2006). See further Ballard (1996). 7 One of the ground-breaking British cases in the ECJ concerned a Sikh couple: Case C–370/90 R v IAT and Surinder Singh, ex parte Home Secretary [1992] ECR I–4265. See Clayton (2008: 183–94) for more detail on the relevant cases. 8 Directive 2003/86/EC, OJ L251/12, 3.10.2003, art 4(4) and preamble, para 10. 9 For an excellent study of the impact on Malians of the restrictions on polygamy in France, see Sargent and Cordell (2003). 10 There is a lack of research on the power equation between lawyers and the clients they advise in immigration contexts but, for a study of asylum applicants, see MacIntyre (2009). 11 This description reflects the provision in para 281 of the Immigration Rules, which sets out the conditions for leave to enter and presupposes that a person is issued with a valid visa having fulfilled those conditions. These conditions are mirrored elsewhere in the Immigration Rules mutatis mutandis for other situations including, importantly, extension of leave to remain. An English language requirement was introduced from 29 November 2010. 12 The issue was not dealt with directly by the Court of Appeal in that case, although it held that the concession was to be read flexibly by officials who should not insist on official criteria which required evidence of specified court or police action having been taken: see Ishtiaq v Secretary of State for the Home Department [2007] EWCA Civ 386. This leaves applications based on the concession open to the discretion of officials and expert intervention may still be required. Prior to April 2003 this waiting period was one year and its extension to two years arguably also ignores evidence that South Asian women faced specific problems because of it: see Choudry (1996). 13 Immigration Rules paras 295A et seq. 14 ibid paras 319AA et seq. 15 ibid paras 352 et seq. 16 Partners are recognized either as ‘registered partner’ (art 2(2)(b)) or as a ‘partner with whom the Union citizen has a durable relationship’ (art 3(2)(b)). 17 Earlier, in 2002, the eligible age for sponsorship was raised from 16 to 18 and the same was done for entrants in 2004, resulting in immigration law stipulating a higher age than the general English law for marriage: see Clayton (2008: 310). The rise in the age to 21 in 2008 therefore only made the gap wider. The current provision appears at para 277 of the Immigration Rules (for spouses) and para 295AA (for an unmarried or same sex partner). 18 Quila v Secretary of State for the Home Department [2010] EWCA Civ 1482. The Home Office has signaled its intention to appeal the case to the Supreme Court. The principle that Article 8 of the ECHR does not oblige a state party to respect the choice of residence of the spouses has been cited frequently since the European Court of Human Rights’ ruling in the case of Abdulaziz, Cabales and Balkandali v UK (1985) 7 EHRR 471, upon which the Administrative Court in Quila also relied. 19 See the special issue of the European Journal of Migration and Law, vol 11(3) (2009), especially the articles by de Hart and Farahat, on the shortcomings of the European Court of Human Rights’ jurisprudence in the field of family migration. 20 J (Pakistan) [2003] UKIAT 00167, discussed by Clayton (2008: 124). 21 I have adapted the phrase ‘distinct legal institutions’ from Hoekema (2009), who uses the phrase ‘distinct cultural institution’.

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22 Conversely, it may often make sense for individuals not to declare a marriage when claiming social security or housing benefits, while Sargent and Cordell (2003) show that when polygamy is ‘outlawed’ it too goes ‘underground’ as those disadvantaged no longer admit to being married. 23 See Shamsun Nahar [2002] EWCA Civ 859, and my comment in Shah (2005: 132–4). The tactic of rejection based on the gap between the date of marriage and the date of the relevant document is not unusual. In early 2010, I had to write a report in the case of a Maharashtra Christian marriage where the marriage certificate postdated the Church marriage by some 18 years, the certificate having been obtained with a view to ‘proving’ the marriage before the visa officer. The attempt to show formal documents backfired, however, again leading to expensive court proceedings and consequent separation of the family members. 24 The obligations of an expert in immigration cases were formerly set out in the Asylum and Immigration Tribunal’s Practice Directions, para 8A, but are now in the Practice Directions of 2010 of the Immigration and Asylum Chambers of the First-Tier Tribunal and Upper Tribunal, para 10, available at http://www.tribunals.gov.uk/Tribunals/ Documents/Rules/IAC_UT_FtT_PracticeDirection.pdf (last accessed 26 February 2010). The equivalent for proceedings in the civil courts is in Part 35 of the Civil Procedure Rules, available at http://www.justice.gov.uk/civil/procrules_fin/contents/ parts/part35.htm#IDA0RRZ (last accessed 31 March 2010). 25 For a recent case in which the Home Office instructed an expert, see KA and Others (domestic violence – risk on return) Pakistan CG [2010] UKUT 216 (IAC). 26 For accounts of anthropologists as experts in the legal process, see Ballard (2007) and Good (2007). Both writers discuss the problem of experts being seen and treated as partial advocates, as does the recent report by Tsangarides (2010). The Civil Procedure Rules, at 35.7–35.8, cater for a ‘single joint expert’ to be agreed by the parties or appointed by the court, thereby reducing the prospect of being seen as partial. 27 This is confirmed by an expert interviewed for the study by Tsangarides (2010: 72). 28 ILPA mailing, October 2009, in response to the proposed government restriction of legal aid to ‘residents’ following the European Legal Aid Directive 2002/8/ESC of 27 January 2003. 29 One can find all kinds of stray comments made by judges and even some officials at different levels critical of the practices employed within the UK Border Agency. In a determination promulgated on 25 November 2008 concerning an appeal against a refusal of a post-study work visa, the immigration judge said: ‘That these documents [concerning evidence of funds] were submitted at the time she appealed the decision of the Secretary of State and clearly understood by the case worker dealing with the case indicated to me an extraordinarily petty and stupid decision on the part of the respondent to continue the appeal … This was a case of an appellant who had submitted documents two days short of a required cut off date and common sense should have prevailed on the part of the case worker to enable the appellant to provide updated documents (which she did in any event) and for her application to have been accepted without the waste of time and resources of forwarding the appeal to the Immigration Tribunal to decide such a basic matter’. More prominently, on 13 May 2006, while giving evidence to the House of Commons Home Affairs Committee, then Secretary of State for Home Affairs, Dr John Reid, stated to some media attention that: ‘… in the wake of the problems of mass migration that we have been facing our system is not fit for purpose. It is inadequate in terms of its scope; it is inadequate in terms of its information technology, leadership, management, systems and processes …’. See http://www.publications.parliament. uk/pa/cm200506/cmselect/cmhaff/775/775iii.pdf (last accessed 5 January 2011) at Ev 155. 30 See Rohe (2007) and, for cases emerging in Britain, see Pearl and Menski (1998).

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31 There have been such examples in Britain also. 32 It is interesting to note that recent state-specific legislation in India, ostensibly designed to encourage the registration of marriages, specifies that non-registration does not invalidate a marriage. See, for instance, Maharashtra Regulation of Marriage Bureaus and Registration of Marriages Act 1998, section 10 and the Gujarat Registration of Marriages Act 2006, section 13. This indicates that the various Indian legislatures remain conscious of the potential havoc that compulsory registration would cause. Instead, they appear to be legislating to facilitate the production of evidence of marriage, but not to take charge of solemnization itself. Although this might appear to run counter to European legal assumptions and practices, some 18 European jurisdictions, including the three British ones, accept the civil results of a marriage solemnized according to relevant Church rites: see Antokolskaia (2006: 301–304). 33 My evidence differed from the Indian advocate’s in that I did not say that the certificate itself was valid since there is no requirement for such certificates in Indian law. Rather, I had said that the marriage was itself valid. In the event, the immigration judge gave more prominence in his written determination to my report. 34 In fact, most of my report focused on eliminating possible problems of recognition of a divorce obtained in Bangladesh in light of English private international law rules, none of which appeared to be an obstacle in C’s case.

Chapter 3

French law courts and South Asian litigants 1 Véronique Bouillier

How can a court, and a European court at that, run by very educated people, experienced in matters of justice, with a Bachelor degree in Law, carry out the law this way, so opposed to our sense of law, our sense of justice? Pramoendya Ananta Toer, ‘This Earth of Mankind’, 1980 (1990 English translation by Max Lane)

French universalism is most evident in the legal system. Following the assertion of the equality of all before the law as expressed in Article 6 of the Declaration of the Rights of Man and of the Citizen 1789, the Constitutional Council inscribed the equality principle in the French Constitution in the following words: ‘It ensures the equality of all citizens before the law, with no distinction as to origin, race, or religion’ (Article 2). This French model, which assimilates – but can also often be intolerant towards – the cultural expression of diversity has recently been the issue in many debates surrounding secularism and Muslim demands. The official legal attitude is clearly expressed in Fortier’s study according to which ‘Religion or faith shall not confer any immunity, be used for justifying any behaviour nor intervene to mitigate punishment. Judicial neutrality must be applied […]. The judiciary shall not discriminate against any form of belief since the law applies to all, without any distinction of origin, race or religion’ (Fortier 2000: 46 and 53). However, the French judicial authorities have always been confronted with cultural diversity and since the colonial period at least have been obliged to consider people from different backgrounds and different legal systems. Colonial judges, even when implementing the French judicial system as part of their ‘civilizing mission’, often had to compromise with the existing legal norms and reality in order to preserve social harmony and to maintain their dominance. However, the French judicial system and law courts – whose mechanisms and procedures appear esoteric enough to the French layman – are poorly equipped to interact with modern multiculturalism. How do they fulfil their role? In the words of Garapon and Papadopoulos: ‘For French legal culture, the issue is to establish whether the accused has committed the crime […] the aim of the procedure is to reveal the naked truth to the audience’ (Garapon and

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Papadopoulos 2003: 87).2 The purpose of the legal procedure in the French inquisitorial system is to discover the facts, to find out what truly happened and to judge the accused person accordingly. As a President of a Court of Assize – exasperated by the frequent changes in the suspect’s testimony – once said: ‘We are here, Monsieur, to discover the Truth’. The judges are fully aware that in order to discover the truth they need to consider the behaviour of the defendant in the context of his social and cultural background. However, to understand is not to excuse, as one prosecutor said: ‘The use of a foreign custom does not make the culpable intent disappear. [… The accused person] referred in vain to the ancestral tradition since, according to the French public order, the motive does not juridically affect the existence of an offense and especially its intention, nor its qualification’ (quoted in Fortier 1987: 44). Thus French courts do not officially consider what is known as a ‘cultural defence’ in the US (see the Introduction to this volume). The logical consequence of this is that anthropologists are hardly ever amongst the experts called to court to provide expert testimonies and reports. Unlike in the United States and the United Kingdom, anthropologists in France are not listed as official experts. This chapter will focus on the part played in the French judicial system by two kinds of expert: (a) court interpreters/translators; and (b) psycho-social experts or social workers. These experts act as cultural mediators and try to bridge the gap between the principle of the universal applicability of the same law for all and the necessity of understanding the diverse social and cultural backgrounds from which litigants come. In other words, the enormous responsibility of achieving equality and equity may befall these experts. This chapter considers the interaction between defendants of South Asian origin and French courts. While immigration from Pondicherry to France goes back a long way, starting with the colonial period and reaching a peak after the transfer of power from France to India, other immigration movements, whether from Pakistan, Bangladesh, India, Sri Lanka and most recently Nepal, have followed the political vicissitudes of their countries and constitute a relatively recent development for France.3 French courts are hence confronted with people from cultures and countries that courts are mostly ignorant of and this ignorance can frequently lead to prejudice and misunderstanding. The use of the word ‘culture’ poses an interesting problem. Despite the anthropological debates that the issue of multiculturalism has sparked and the scholarly works it has given birth to, there is a tendency in the legal context towards essentializing and reifying the notion of ‘culture’ (Good 2008: 551–54). As we shall see later, ‘culture’ is often used in courts as a kind of magic word that serves as the ultimate explanation for any ‘strange’ behaviour (see Holden in this volume). In this context, ‘culture’ is often loosely understood as the ‘tradition of the other’. As one social worker told me: ‘[w]e behave as if only people of a different origin have a culture’. In the words of Shah, ‘there is a prevailing assumption that they [the Western presuppositions] are culture-free, their supremacy is taken for granted’ (Shah 2009: 127) (see Ballard in this volume). Added to this widespread

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ethnocentrism is the French traditional universalistic outlook, which implies that the simple fact of taking into account a different cultural background is discrimination or, even worse, stigmatization. By relying on observations made in different law courts (civil and criminal), interviews with judges, lawyers, interpreters and social workers, the close scrutiny of the files provided by some exceptionally understanding lawyers and the examination of the few specific judgments available in specialised databases, I will illustrate the complexity of the interaction between French law courts and litigants from a South Asian background – thereby highlighting the misunderstandings that often arise in this interaction. One of the main difficulties for English-speaking litigants and that I myself have in attempting to write in English about French justice is of course the problem of translation between both judiciary systems. Translating the legal vocabulary often implies finding an inadequate equivalent term (see a useful summary of this issue in Weston 1991), inventing similar institutions which are in fact different, and always destroying the special flavour about the particular judiciary’s terminology. The first section of this chapter deals with the position of the French legal system on matters concerning foreign law. The second section will deal with cultural mediation in court. The third section will delve into examples of misunderstandings that occur between French law courts and South Asian litigants and an increasingly widespread feeling of injustice amongst the South Asian population.

Law and foreign citizens Notwithstanding the principle of universalism of French law on French territory, in certain circumstances French judges have to apply foreign laws. We may then have ‘the coexistence of different legal systems in France’, to borrow the title of an article by Rude-Antoine and devoted to family law (in P. Kahn ed. 2001). RudeAntoine’s and Moneger’s articles in the same volume clearly summarize the situation concerning private international law: ‘Private international law is the keystone where different juridical orders coexist’. According to Article 3.3 of the civil code, ‘the laws on status and capacity apply to the French people, even when they live in foreign countries’. Reciprocally the Court of Cassation in a 13 March 1932 decision infers a rule according to which any foreigner, whatever his residency, is submitted regarding his personal status with respect to the law of the country of which he is a citizen’ (Rude-Antoine 2001: 150). Since 1932, the date of the first decision stating the obligation to apply foreign law to foreign people in cases related to personal status, many cases have ended at the Court of Cassation. ‘For a long time and until very recently, if none of the parties asked for the application of foreign law, the judge could decide whether the case was a purely internal case’ and therefore decide exclusively according to French law (Moneger 2001: 13). However, two decisions, one in 1988 and one in 1999, specify that the French judge must first determine if foreign law is applicable to the case, and then examine the content of the applicable foreign law. ‘Here we have a number of different

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types of jurisprudence at the Court of Cassation. From now on judges must personally enquire about the content of foreign laws’ (Moneger 2001: 17). However, there is a huge discrepancy between norm and fact, which makes way for many appeals. Either foreign law is completely ignored, or it is dismissed on purpose: in many cases, foreign law is viewed as not sufficiently protecting the person involved, or even as being contrary to French public order, especially regarding women’s rights. However, most often lawyers or judges frankly state that it is too complicated, too demanding and too difficult to procure foreign legal documents and that all efforts to obtain legal documents from South Asian embassies are in vain! In family matters, much to the surprise of the litigants, the paramount legal provision sometimes applied is that even if marriage between foreigners is celebrated abroad, the spouses’ first, joint residency in France determines the matrimonial regime, which means applying the joint estate régime, communauté légale, also known as communauté réduite aux acquets: all property acquired after marriage belongs to the couple and in the event of divorce must be divided equally.4 For instance, this legal provision was applied without much contestation but involved very complicated calculations in the case of a very rich couple married in India without a marriage contract, their first joint place of residence being in Paris. They owned many businesses; the division of these companies and the estimation of the value of the wife’s contribution were the subject of many arguments (Janak D. c/ Jaskirat J.-S., Appeal Court of Paris, 1 March 2006, Jurisclasseur). This debate about matrimonial property is at the heart of a long legal battle which exemplifies the misunderstandings surrounding foreign legal institutions. The case started in 1990 and it was finally closed in 2008. It was referred to the Court of Cassation on two occasions (in 1998 and 2005) and three times to the Court of Appeal. M Abdoul Bachir H and Mrs Mariam R contracted a nikkah marriage according to the Hanefite rite with the Cazi of Karikal (India) in 1969 – in other words a Muslim Indian couple followed the usual procedure and got married according to Hanefite (or Hanafi) law, the Hanefite school being the oldest among the four established Sunni schools of law and predominant among the Muslims on the Indian sub-continent. They settled in France and apparently, according to what follows, France was their first place of residence. Twenty years later they decided to divorce, and with the judgment dated 9 November 1990, the Bourg-en-Bresse law court granted them a divorce with the division of marital assets. Henceforth the problems started: in 1993 a first judgment regarding the separation, confirmed on 11 January 1996 at the Court of Appeal, decided that according to French law, joint estate was the applicable régime because the first matrimonial domicile was established in France. The marriage contract signed in India in 1969 was declared to be a mere attestation of the free will of both spouses to be married and as such no property régime could be inferred from it. Mr H, thus, obliged by French law to share his property with his wife, contrary to the usual provisions of the traditional Muslim marriage, appealed to the Court

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of Cassation. On 7 April 1998 the Court of Cassation, ruling on the legal form, not on the matter itself, refuted the arguments put forward by the Court of Appeal: ‘The marriage stipulation mentions the consent of the spouses but also the payment by the husband of a sum called “maher” and the celebration of a marriage called nikkah. Without enquiring whether the marriage stipulation does not also suppose the acceptance of a special matrimonial regime, the Appeal Court decision lacks of legal ground’. Although the Court of Cassation decides on points of law and procedure, here it virtually questioned the cultural background of the case by overturning the decision of the Court of Appeal owing to its disregard for the legal implications of a foreign marriage and the exclusive application of French law. The Court of Appeal met again on 2 December 2002 and took a surprisingly drastic decision. It stated: [t]he fact that the Marriage Act includes a marriage agreement, that this agreement is reduced to only one clause called ‘maher’ and that according to the certificat de coutume (custom certificate) presented to the Court, the maher is the selling price that the woman puts on her person in marrying, therefore the clause goes against the French public order which shall not tolerate the sale of human beings. We have no details about this certificate and about who provided it, but we have a case of flagrant misinterpretation of a foreign law. The wife, who wanted a greater share of the couple’s property, now found herself in an illegal marriage according to French law, as the court stated that was the sale of a human being. It was now the wife’s turn to appeal to the Court of Cassation, which gave its verdict on 22 November 2005 and accepted the appeal for the following reasons: ‘As the maher act establishes the consent to marriage and the payment of a dowry, this is not against the international public order. The appeal […] judgment is nullified in all aspects’. The Court of Cassation again referred the case to the Court of Appeal. Finally, on 16 October 2008, the case was definitively (or so it seems) settled with a very lengthy statement explaining what a nikkah marriage is and its legal consequences concerning the common property of a couple: The spouses who in India proceeded with the celebration of their marriage, called nikkah according to the hanefite rite, accompanied their marriage act with a clause called maher according to which the husband attested to having given to his wife 3,000 rupees as maher […] The explanation given in the certificate of custom as to the meaning of this clause […] corresponds simply to the fixing of a dowry and is not contrary to French international public order. Their marriage was celebrated according to the hanefite rite which supposes adoption by the spouses of a specific matrimonial regime […] As both spouses, being Muslim, have expressly chosen to follow the hanefite rite, the marriage

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is regulated by Muslim law. There is no reason then to refer to the argument based on their place of residency. Since the matrimonial regime stipulates the separation of property according to Islam, we have reason to infer that couples who have willingly married according to Muslim law, follow the separate property regime.5 The Court of Appeal ended this statement with the following sentence, which appears as something of an excuse: ‘The complexity of this exceptional legal situation explains why the wife’s rights may have been misunderstood’. Hence, six different legal procedures over a period of 20 years were needed to solve a case which involved a marriage that took place in India according to Muslim law, a law which should have been familiar to the judges considering the large number of French Muslim residents. Given that much misunderstanding and confusion in this particular legal case arose from the misinterpretation of the ‘certificate of custom’, the French legal system is faced with the problem of finding relevant and reliable sources of information, and this is where the role of the cultural translator/mediator proves important.

Interpreters and social workers: the cultural mediators The first contact of any South Asian litigant – who does not speak French – with the judiciary is through an interpreter. It may even start on first contact with the French territory, at a police station or detention centres at airports, where foreigners travelling illegally are detained before being brought to a court of law. The absence of an interpreter or the presence of an interpreter specialized in the wrong language nullifies the procedure and leads to the release of the immigrant. We came across a complex example of such a situation in the case of an asylum seeker, born in Dacca but claiming Pakistani citizenship as a member of the Behari community. Since his application for asylum had been refused, he was arrested and kept in police custody without any proper translation of the police officer’s questions. ‘His hearing in the absence of an interpreter was rather brief, the judicial police officer not seeming to have any idea about the particularly complex situation of Mr X’ (Versaille Court of Appeal (15 July 1999) No of RG 1999-692P, Légifrance). The Versailles Court of Appeal accepted the appeal and ordered the release of the prisoner because of the absence of an interpreter during questioning by the police. In another case, an Indian citizen arrested at the airport was left to walk away free of any charge by the judge because – quite surprisingly given the 48-hour period of custody – he had only been in contact with a Chinese interpreter. An interpreter is requested whenever anyone unfamiliar with the French language has to interact with judicial institutions in France. It can be in any court of law or in any place related to judicial procedures, such as police stations, prisons, civil courts as well as criminal courts; they assist police officers, lawyers, social

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workers, judges and prosecutors. And of course the role they play can vary greatly according to the context in which they operate. As we shall see, the effective role of the interpreter exceeds what the judiciary is ready to acknowledge. For instance, notwithstanding its crucial role, in most published decisions the translator remains anonymous and his or her presence is barely acknowledged, except when it is the source of the problem. The language used by the litigant is often not mentioned and the potential bias of any translation is never accounted for. Since interpreters are members of a specialized group, their eventual personal differences or capacities are seldom acknowledged. Who are these interpreters? In French courts, interpreters fall within the group of experts whose legal denomination is Interpreter/Translator (or IT). They are supposedly professionals, recruited according to their qualifications and field of competency. They are required to pass a certification process in order to be registered on the official list of Interpreters/Translators for the Courts of Appeal or the Cour de Cassation. When they have been selected and recruited by an ad hoc commission, they are certified interpreters (in French, traducteurs assermentés), and are publicly listed as auxiliaries of justice. Since 2005, interpreters are submitted to obligations intended to control and regulate their activity: they must follow regular training courses, they must request their relisting every five years and provide a list of the cases where they have intervened. However, as their number is totally insufficient, courts and police stations have their own list of interpreters available around the clock. At the Bobigny law court, well known for litigation involving parties from multicultural backgrounds, groups of interpreters gather and interact daily while waiting to hear from their clients. The post of duty officer, with no prior appointment with him needed, was also created because of the continuous request for interpreters. As we shall see, the effective role of the interpreter exceeds what the judiciary is ready to acknowledge.6 In most cases, interpreters are people of South Asian origin translating from and into their mother tongue. Their capability is somewhat variable and not seriously monitored. As pointed out in many studies, their task is very difficult and depends on their fluency in two languages, which is seldom the case. As the interpreter-translator Gonet remarks: Every translator knows perfectly well that one only does excellent work if the source language is foreign and the target language one’s mother-tongue. The IT [Interpreter-Translator] expert has exceptional capacities since it is considered normal for him to practise his skill both ways, most of the time with no preparation and in emergency conditions […] It is obvious that what is required of the IT exceeds any reasonable [demand] (Gonet 2009: 37). Moreover, interpreters have to be familiar with the linguistic subtleties of the law and need to have some knowledge of legal procedures and of the French legal vocabulary. Sometimes their knowledge of the French legal vocabulary and procedures is inaccurate. Translations provided by interpreters may be inadequate

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and give rise to many misunderstandings or worse. A lawyer once told me about a case where the word ‘sursis’ (deferred sentence) had not been translated, the interpreter merely announcing a prison sentence of one year. If we look at the meaning of the word interprète in the French dictionary,7 we see the following definitions: (a) ‘somebody who explains or clarifies the meaning of a text, a commentator or exegete’; (b) ‘a person who gives orally in one language the equivalency of what has been said in another’. The judiciary interpreter is supposed to act according to the second meaning of the term, yet in fact he plays both roles. The judicial fiction is that the interpreter gives only a verbatim translation; he/she disappears behind his/her client, and his/her sole duty is to give an exact rendering of the discourse. However, linguistic studies of speech performance have shown how the style of the discourse matters and how the use of hedges, fillers and hesitations is meaningful.8 Quite often interpreters tend to delete the nuances by ignoring any fillers, pauses and hesitations in speech. Instead, they tend to simplify and go straight to the general gist to translate what the speaker is trying to say. This is actually their duty, according to Gonet: ‘The remarks made by the accused are most of the time vague, they fluctuate, often contain lies and are almost always clumsy and emotional […] The length of the [correctionelle] court appearance does not leave room for any subtlety or nuance. [The interpreter] therefore has to be quick, precise, concise and clear’ (Gonet 2009: 38). Such a performance is rather difficult in the immediacy of a court procedure: the interpreter may try to mask the hesitancy in the defendant’s answers, which may have dire consequences, and at the same time, he/she may also add his/her own hesitancy during the translation process. The court has no way of knowing who is hesitating – the interpreter or the litigant – and why. To illustrate the part played by the interpreter in court proceedings, I will now briefly describe the interpreter’s role during the trial of a Sri Lankan Tamil for attempted murder. This involved an appeal at a Court of Assize (Seine SaintDenis, 19–20 January 2010). The interpreter had already assisted the defendant at the previous stage in the procedure and during the inquiry made by the investigating judge (in French, Juge d’instruction). The lawyer was also the same as in the previous stage. The lawyer, interpreter and defendant had met several times and the lawyer had visited his client in prison. Their relations appeared to be friendly and they shook hands, even though the defendant sat in the accused box – guarded by three policemen and separated from the main area of the courtroom by two lateral glass panels and a wooden bench. His lawyer and his interpreter sat in front of him on the right side of the room, the prosecutor faced them on the opposite side and the three judges – the president and the two assessors – sat in the centre, surrounded by the semi-circle of jurors. The layout of the courtroom is rather impressive and this is done intentionally (see Garapon 2001). As is a well known fact, the apparatus of the French courts and especially of the Court of Assize plays an important role in imparting the ideals of French justice. As soon as the bench solemnly entered the room, everybody stood up and the trial began with the first dialogue – or trialogue – between the presiding judge, the

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defendant and the interpreter. The judge asked the defendant his name, his father’s name and his occupation. In spite of the fact that the defendant understood the simple questions that he had already heard many times before, the interpreter kept translating. The first intervention where the interpreter did more than merely translate occurred when the question was asked about the defendant’s occupation. The defendant had been in prison for the last three years – hence some hesitation conveyed by the interpreter: ‘He says he was in jail.’ The judge responded tensely: ‘Right, but what was his occupation before that?’ We then learned that he was a cook. During this exchange, the interpreter stood near the defendant: he faced the defendant when he talked to him and turned to face the judge when he translated the defendant’s answer. The interpreter was forever moving while he was on duty – he walked along an ellipse. His posture was also expressive. The interpreter’s hand gestures accompanied his words when he encountered difficulties in translating what was being said. In the course of the proceedings, one very soon noticed certain discrepancies in the length of the translation provided by the interpreter: a stream of Tamil was reduced to two words and, at the other extreme, a precise question asked by the judge, such as ‘Do you acknowledge that you were at the metro station at one o’clock, yes or no?’ elicited a long and very excited reply from the defendant along with gestures describing certain places which seemed to suggest that the interpreter had added some of his own comments in translating the question for the defendant. The interpreter seemed somewhat embarrassed and said: ‘He says it was not him.’ This utterly irritated the president and he responded with – ‘I said yes or no! Mister interpreter please translate!’ The defendant’s lawyer took this opportunity to intervene: ‘He does not understand! They don’t understand each other! The interpreter is an Indian Tamil and my client is from Sri Lanka, their language is not exactly the same.’ During the break, the lawyer turned to me in order to check on the accuracy of the translation. We had previously exchanged some words on the reasons for my attending the court hearing. Hence, I told him that I spoke some Hindi but that I was out of my depth as far as Tamil was concerned! This case illustrates how the interpreter can find himself at the receiving end of the annoyance of a bench confronted with a reluctant defendant: here, apparently, the accused Sri Lankan kept changing his narrative, gave replies that did not answer the questions and was very inaccurate. As he told me later, the interpreter felt frustrated because he was made responsible for the inadequacies of the process, while the prosecutor insisted on the fact that ‘because of the translation everything is slower and confused’. I could not help thinking that the presence of the interpreter made the exchange devoid of any feeling. What is striking in this case is also the fact that, as the trial progressed, the interpreter took on a more and more active part until finally the judge no longer addressed his questions to the defendant but instead turned to the interpreter with vague formulations such as ‘Ask him if he has any remarks?’ or ‘Could you ask him for his comments?’ The latter question – after a voluble exchange with the

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defendant – was answered by the interpreter with ‘He has none!’ In this case, it was difficult for the accused to have any comments, since only direct questions were translated for him, not the witness reports or the prosecutor and lawyer’s speeches. Sometimes, at the other extreme, it may happen that a judge reprimands an interfering interpreter, as a judge once cautioned the interpreter: ‘Madame, please translate and don’t make any comments!’ It may also happen that the interpreter is specifically asked to give a personal comment during the proceedings such as being asked ‘Do you think he is telling the truth?’ Or as a Bengali interpreter was once asked: ‘What do you think of his accent? Is he really from Bangladesh [and not from Indian Bengal]?’ In such cases, the interpreter’s reaction depends on his own personal deontological attitude. Some interpreters side with the judges – they consider themselves as representatives of the law and do their best ‘to help justice triumph’, as one interpreter told me with some grandiloquence. This departure from neutrality is qualified as ‘débordement par le haut’ (excess of zeal) in the Mission Law and Justice Report (Pelisse et al. 2009: 125–31) when the interpreter thinks he has to collaborate with the judge by giving information necessary to help him obtain the truth. On the other hand, in some cases the interpreter may side with the litigant as may be the case with asylum seekers or illegal immigrants; or at the very least the interpreter may remain silent while information is being freely given. We have, for instance, the case of a Pakistani seeking asylum on the grounds of being persecuted for his homosexuality (as his counsel recommended him to plead) and who quietly explained to the interpreter that the delay would give him time to look for a wife. Interpreters can be sympathetic to a situation that they can relate to – they may suggest a ‘good’ answer to the defendant or explain to him the legal procedure in order to avoid immediate expulsion. They can also sometimes spontaneously help the defendant as one skilled interpreter did: fully aware that the prosecutor’s question about the defendant’s network of friends implied that the latter was cut off from French society and was not well integrated, the interpreter insisted with the answer he was translating: ‘Yes, I have Sri Lankan friends, but I also know some French people, I have French friends.’ (see Vatuk and Holden in this volume). Providing an explanation about French legal procedures is part of the interpreter’s job and it evidently goes beyond the ‘simple’ task of translating. Interpreters have to ensure what the aforementioned report refers to, strangely enough in ‘Franglais’, ‘du consulting culturel’ (cultural consultancy, in Pelisse et al. 2009: 118, 124). Lawyers and social investigators frankly admit that they rely on interpreters to obtain information about the political and sociological background of the litigants. Their expertise is required in explaining the political situation in Sri Lanka as well as the marriage pattern or dowry system in India. However, they are sometimes not the best informants: an interpreter from Pondicherry is not necessarily very well informed about new developments in the Sri Lankan situation. Most often, given the diversity of South Asian traditions, the diverse

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backgrounds of the interpreters and the very superficial knowledge most French judicial actors possess about South Asian practices and traditions, interpreters can only give very general and vague explanations which actually most often reinforce common stereotypes. Interpreters usually provide information during the preliminary meetings, not during the trial, except on request. I remember an interpreter remaining silent before a distressed judge in one case when the judge asked: ‘Mr X was talking at first about his sister, now he says his cousin; he said that his father died during the tsunami, now he says that his father is alive! How many fathers does he have? Are sister and cousin the same in Sri Lankan language?’9 In this case, the judge then asked the interpreter to ‘question him [the defendant] about his relatives according to the French meaning’. Using the references she was familiar with, a family affairs judge once asked a young Tamil woman if the man who sheltered her was a ‘cousin in the African sense’ (un cousin à la façon africaine). Bobigny law courts are in fact highly familiar with African kinship because of the many African immigrants living in that area: here the judge implies that the word cousin may refer to somebody who is only remotely related to the subject. The interpreter also goes beyond his role as translator when he has to explain the litigant’s body language and demeanour to a judge. For example, an exasperated judge asked an interpreter about a South Asian litigant’s gestures: ‘Why do you translate that he agrees with what I am saying when he says no with his head?’ This simple act of moving the head is a source of many problems in France, especially with the police. The questions from a judge may also be met with an embarrassed giggle: a young Nepalese girl was asked if she was married and then, when she said she wasn’t, if she had children and how many. When she smiled, the judge considered her smile to be improper and suspicious. The interpreter had to explain that such a question was beyond belief for the Nepalese girl because, for her, ‘if you are not married, you don’t have children!’ and that she smiled because it was so unbelievable to hear a representative of the authorities publicly asking such a shameful question. As the interpreter told me: ‘One cannot ask such a question! For the judge it is normal, whereas for the girl it is not normal and I, I understand both.’

The psychological and social experts Psychological and social experts play an important role in French judicial procedures since French justice is eager not only to judge a fact, to examine a wrong action and decide on the necessary penalty, but also to find out the truth about a particular act, as well as to understand the litigant’s behaviour and motivation. There is therefore a necessary recourse to investigators who are in charge of producing reports on the litigant’s psychological profile and his or her social and cultural background. All these investigators are considered as official experts. They give their reports in written form but are also sometimes summoned to court to give oral testimony.

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It is at this stage of the proceedings that there is the greatest number of considerations regarding the cultural background of litigants. Of course, when they investigate people of South Asian origin, they have to rely on interpreters and to collaborate with them in building an understanding of the litigant’s personal and cultural background. In criminal courts, in cases involving serious crimes, there are three categories of investigation where some information about the accused’s background is gathered beforehand. First, there is an investigation about the character (in French, enquête de personnalité), where the investigator collects data about the biography of the litigant (usually the accused, but sometimes also the victim) and visits him (often in prison) once or twice and also visits his or her closest friends and acquaintances. ‘I work on the basis of words. Everything I say is on the basis of oral testimony. I cannot do anything else’ the investigator replies to a question put to him by a prosecutor inquiring about his work (Cour d’Assise de Seine Saint-Denis, 19 January 2010). The investigator’s poor salary (around €100 when the investigator is not specialised – they are often retired members of civil society or active in social associations) does not allow for very in-depth research and they rely on the verbal assertions of the interviewees and on the impressions and commentaries given by the interpreter. After conducting this research, the expert/investigator provides a written report organised according to different headings: civil status, family background, school and professional background, health, perceived personal problems and life projects. This report is given to the judge and the parties prior to the trial and the investigator may be requested to attend the trial to explain his general impressions and conclusions about the person orally. Other investigators in court cases include psychologists and psychiatrists, with psychologists judging the litigant’s mental capacities, reasoning and coherence and psychiatrists testifying to the possibility of mental illness and assessing whether the litigant or accused was fully responsible for his or her actions. Both depend heavily on the interpreter’s performance and on their own capacity to understand people from a different background. A psychiatrist’s report is often explicit and includes statements such as: ‘Contact is established through an interpreter who remarks that the accused is fully capable of expressing themselves and of analysing situations in the Tamil language’ (Court of Assize, Seine Saint-Denis, 23 February 2010). The psychiatrist adds that: ‘According to the interpreter, his speech is coherent and he seems to have a proper grasp on reality’. It may happen that the psychologist, in trying to understand the personality and traits of a foreign defendant, relies on psychological tests such as Rorschach and TAT (Thematic Apperception Test).10 The psychologist in this case – without casting any doubt on the validity of using such tests on people from radically different socio-cultural backgrounds – claimed that the defendant presented no particular pathology but that the tests were not particularly effective since the defendant only answered half of them! One can imagine the imprisoned Sri Lankan asked to comment on strange images depicting Western personages or, even worse, formless ink stains, and the distress such an apparently childish and incomprehensible exercise must

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have caused him. As he told the interpreter: ‘I am in prison, accused of murder, I will be judged. What do they want with all these stupid things?’ In divorce cases in civil courts, especially in cases where children are involved, the judge may call for expertise from a psycho-sociologist. These experts generally belong to state-related associations and their duty is to inquire into the family situation and to judge the extent of the material and affective wellbeing of the children. Very few social workers or psychologists have had any anthropological or ‘culture-sensitive’ training except for those few who, driven by personal interest, trained in ethnopsychiatry. Those with such training are therefore more sensitive to the cultural context of a situation; for example, they appreciate the traditional behaviour of South Asian women who do not speak out in front of their husbands and who are very dependent on the community’s opinion and the demands of their in-laws. They may even understand a harsh punishment inflicted by a South Asian father on his reluctant daughter and not immediately remove the child from her family. Many South Asian families complain about what they perceive as the intrusive behaviour of French social workers in family life. They think that the French school and social services encourage children to misbehave – a common remark I hear when asking about the difficulties in day-to-day life. Comments such as ‘Here you are not even allowed to slap a kid across the face’ are also widespread. The sad story of an Indian Tamil family is emblematic of this issue. A father who did not allow his daughter to go out like her friends, beat his daughter into obedience. She complained the next day to the school social worker who informed the police. Both parents were arrested, judged and sentenced to prison with the father sentenced to one year’s imprisonment. The daughter was put into a community home and her baby brother was sent to a host family since his mother did not want to keep him in prison. This Indian Tamil family was totally destroyed and torn apart as a result of the judge’s decision. Nobody in the family could understand how the law and the judges can interfere in what the father thought was his right or even his duty in ensuring the proper education of his children. Even when the investigator tries his best to understand the peculiarities of a situation and the traditions of those under investigation, striking misunderstandings can arise. A character investigator working on a complicated case of attempted murder involving two Sri Lankans tried to understand the political situation of the island and of its refugees. He questioned a French-speaking friend of the accused and this self-proclaimed expert on Sri Lanka explained that the Tamils had lived in Sri Lanka from time immemorial, that everything was all right until the massive arrival of the Singhalese after Independence and that these Singhalese took over many of the jobs and became very powerful. It was this ‘truth’ about the Sri Lankan situation which was conveyed to the court when the presiding judge asked the investigator about the social background of the accused (Court of Assize, Seine Saint-Denis, 19 January 2010).

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Sometimes, ignorance is coupled with prejudice and the investigator assumes that foreign ‘culture’ is responsible for the problems. The alien culture is then viewed as a homogenous whole with no attention paid to its diverse religions, traditions and cultures. This is, for instance, often the case for foreign marriages. Let us take the case of a request for divorce made by a woman, originally from Pondicherry but who had French citizenship. She married an Indian citizen in Pondicherry. Both are Christian, from the same merchant caste. They went back to France where he applied for a French residency permit (carte de séjour). They had a baby but, very soon, their relationship deteriorated. Confronted with accusations from both sides, the judge ordered a psycho-social investigation. According to the written report delivered to the judge: ‘We married in India, following the customs of the country, without having met before’ (a fact that is contradicted in a second report which says that they met in India and married the following year). According to the wife’s statement: ‘He [the husband] married to achieve a better life in France, but for all that he did not abandon the traditions of his country where the girl has to give a dowry when she marries, which the husband can use as he wishes. Thus from the very beginning, he had kept asking what he thought she should give … He reproached her for her lack of respect, and he was upset at not being shown the appropriate consideration a man should expect in his home’. But the same report also gives a totally opposite version, whereby he was asked to give money since his family was known to be rich. The report also mentions that ‘the husband asked her to give back all the gifts he had made, which for them corresponds to repudiation’. As we know, they are Christian, so there is no ‘repudiation’ possible but this notion of repudiation arises from the prejudice on the part of the social worker. The conclusion to the report is rather revealing: ‘it seems that both live with the weight of their country and family’s traditions, without envisaging or having the possibility of escaping them. Each put forward material motives as the only reasons for the failure of their union, so as not to criticise the customs which are too oppressive to assume’. As exemplified in this case, family relationships are the most common source of misunderstandings. Social investigators tend to impose French norms on foreign practices, the most sensitive issue being marriage procedures.

A common misunderstanding: the ‘arranged marriage’ As we have just seen, in family problems the first question from social investigators concerns the circumstances of the marriage. The term ‘arranged marriage’ is used like a magic formula that explains everything that goes wrong, but it is often used without any consideration for the different ways that an ‘arranged marriage’ can be understood. For example, does such a marriage mean that the marriage is arranged within the family or by the family, by which family, if a go-between is involved, if the spouses-to-be have met and known each other before the wedding?

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These and other such questions need to be answered in order to understand what the term ‘arranged marriage’ implies. In the report previously quoted, the investigator defined an ‘arranged marriage’ as a marriage in which the two people involved have not met each other before the wedding. However, the couple had met before the wedding: even if the marriage was ‘arranged’, they had met and corresponded for one year (since she had returned to France). At another divorce procedure I attended, as the couple argued, through their lawyers, about their respective mishaps, the judge closed the hearing with these words: ‘You had an arranged marriage. Are you aware that it is also the arranged marriage that makes the situation as complex as that?’ However, the French judicial system’s prejudice against ‘arranged marriages’ can take a more drastic turn when the public prosecutor requires ‘la nullité du marriage pour défaut d’intention matrimoniale’ (marriage annulment due to lack of matrimonial intention). This happened in the case of a couple, both born in India, although she had French citizenship (through adoption) and lived in France. Contact was established between them through some friends living in India; and they exchanged letters. He came to France and they married in Lorient in 2002. However, in 2004 the couple filed a divorce procedure. She wanted to nullify the marriage, claiming that he had wanted to marry her only to obtain the legal documents to stay in France (Court of Appeal, Rennes, 20 June 2008, Jurisclasseur). A similar case went to the Rennes Appellate Court in December 2008. The appellant was the public prosecutor of the Nantes High Court (Tribunal de Grande Instance) who made an appeal about a decision taken by the Nantes High Court in September 2007. It concerned Mr X, a French citizen born in France in 1971 but originally from Pondicherry, and Ms Y, an Indian citizen born in 1976 close to Pondicherry. They had married in Pondicherry in 2003 and wanted to have their marriage registered at the consulate. That is when trouble started for them: ‘When asked for the transcription of a foreign marriage act on French consular registers, the French Consul at Pondicherry considered that there were serious indications to suppose that this marriage had to be annulled in conformity with Article 146 of the Civil Code, regarding a marriage absolutely devoid of any matrimonial intention and having as its sole purpose to allow the foreign spouse to migrate to France’. In other words, the French authorities asked for the marriage to be declared null and void. It is worthwhile quoting the arguments of the public prosecutor: • • •

The marriage was ‘arranged’ by the husband’s parents who resorted to an intermediary called B, in order to offer their son on the marriagemarket of Frenchmen, which had been created in Pondicherry. The husband, 80 per cent disabled and living in France, was looking for a wife to take care of him. The wife herself admitted to having recourse to a BROKER (sic) in order to find a husband in France.

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• •

•

The wife met her husband only on the day of the marriage. The spouses had no matrimonial intention but the simple desire to enable the wife to migrate to France, to put herself at the service of her husband, to become his domestic helper in return for settling in France and enjoying the prospect of acquiring French citizenship. The husband’s sister confirms the suspicion, stating that the marriage was organised by the parents who found a young girl ready to sacrifice herself in marrying her brother. Because of her brother’s disability, the young girl’s parents paid for the jewels and covered the marriage expenses, when normally it should be the other way round.

However, the final decision rejects the claims made by the public prosecutor with the following arguments: • • •

They are both of Indian origin. They have clearly manifested their common desire to be united through marriage, even if they are of different castes, the wife being perfectly aware of her husband’s infirmity. The fact that an intermediary was called upon to facilitate this marriage does not necessarily mean the absence of any matrimonial intention.

This suspicion around arranged marriages is, of course, not limited to South Asian cases.11 However, on the basis of the cases I have come across, it seems that judges might be becoming more aware of cultural background, more open to the diversity of social practices and more sceptical of public prosecutors’ arguments concerning the invalidity of arranged marriages. Another frequent case of cultural misunderstanding regarding matrimonial affairs often occurs when the husband considers the French judicial system overprotective of women’s rights. I have encountered quite a few cases involving a husband who lives in France and speaks French but goes back to his country of origin to marry there in order to find a more ‘traditional’, that is, submissive, wife. He keeps her more or less cut off from society, does not let her learn French and is the intermediary in all necessary administrative procedures. He may be violent but she does not know what to do until intervention eventually comes from outside – neighbours complain to the police or children talk about domestic abuse at school. The social services enter onto the scene, she receives a visit from a social worker accompanied by an interpreter, and she learns how to lodge a complaint with the police, and she hears that she can call upon the help of a lawyer paid by the state, and that she can file for a divorce, keep her children, obtain an allowance from her former husband, and she even discovers that she can claim financial help from state welfare. In the words of the indignant husband, the French state helped his wife to leave him and was the cause of the breakup of their marriage – the interference of French judiciary in his private life was defined as unbearable.

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Conclusion This survey based on hearings, observation, interviews with professional experts and the review of databases gives a first idea of the many difficulties that law professionals on the one hand and South Asian litigants on the other hand have to face, and of the complex feelings the situation generates. The French legal tradition of universalism and egalitarian treatment for all litigants is challenged by the evident reality of linguistic and cultural differences. First, the bare necessity to interact through an interpreter considerably influences the procedure. In addition, the litigants, having a different legal culture, may expect different procedures, be suspicious or even refuse French procedures. And, more generally, litigants and law professionals do not necessarily share the same common knowledge. However, today in law courts the legal actors are well aware of the many obstacles to a proper understanding of the behaviour and motivations of the people they have to judge. When answering my questions, they openly expressed their discomfort. However, the quest for information and understanding of the litigants’ position is checked by the usual problems: time and money. The time schedule for the trial does not allow for long digressions, especially during divorce procedures where the hearing before the judge is so short that litigants feel quite frustrated and unable to establish their ‘truth’. Any exchange about their cultural backgrounds therefore takes place with the lawyers or the experts outside the courtroom. Unfortunately, financial considerations may hinder investigations: an officially appointed lawyer or expert who is paid a few hundred euros cannot afford to spend a great deal of time studying the various anthropological data likely to throw light on his client’s position. Most often, judges or lawyers are obliged to rely on information provided by interpreters who are considered to be ‘natural’ or de facto experts since they are supposed to share the cultural background of the litigant, which is seldom the case for interpreters born and raised in France. The Internet provides another source of information, particularly regarding the political situation, yet the lack of contextual understanding does not help the judiciary to get a clear picture of the situation. These difficulties are common to all cases involving foreign litigants, but South Asian populations do indeed present a new challenge to French jurisdiction insofar as they are relatively new to France and offer an unfamiliar lifestyle and pattern of behaviour. Their case exemplifies the discrepancy between judicial ideals and realities and the often underestimated necessity for cultural mediators.

Notes 1 With many thanks to Daniela Berti for involving me in the ANRS/CNRS Project on ‘Justice and Governance in India’, to Livia Holden for her leading role in the diaspora project, her thorough reading and interesting suggestions and to Fatima Mustafa and Bernadette Sellers for improving my English and legal gallicismes. 2 For a wider analysis of the construction of the truth in the legal process, see Lynch and Bogen 1996, especially Chapter 4.

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3 Indian immigration is mostly made up of French-speakers from Pondicherry (from 20,000 to 40,000 people), both Muslim and Hindu Gujaratis, some of them from Madagascar, La Réunion or Mauritius, and since the 1980s Sikhs (10,000 people in the Paris north and east suburbs). Sri Lankan immigration started in the 1980s and now makes up a large community of some 80,000 people; mainly Tamil refugees, who settled in northern Paris and now run shops in the area known now as Little India (La Chapelle quarter) and reside in the northern suburbs. The Pakistanis, mostly from the Punjab area, number around 70,000; many own or work in restaurants. The Bangladeshis are the most recent immigrants along with the Nepalese (9,000). For a survey of the Indian diaspora in Paris and Ile-de-France, see the various articles edited in Servan-Schreiber and Vuddamalay (2007) and the recent study by Moliner (2009), who gives a much lower estimation of their number, based on the official INSEE statistics which, of course, do not take into account illegal immigrants. 4 See a very detailed case-study based on the Turkish population in France (Alsace), their matrimonial issues and the conflict between laws, in Messner et al. (1999). 5 Arrêt du 16 octobre 2008, Cour d’Appel de Lyon, RG No 06/07748, (Jurisclasseur). 6 Cf. the report written for the Mission de recherche Droit et Justice (Pelisse et al., ‘Des chiffres, des maux et des lettres’ Octobre 2009), especially the section by Keltoume Larchet ‘Des non-experts? Les experts interprètes traducteurs: l’expert interprète: un acteur invisible?’. 7 The use of the dictionary is quite common in US courts to specify the meaning or the implications of words (Charnock 2005). 8 See the linguistic and statistical analysis of Hale on Spanish interpreters in Australian local court hearings (Hale 2002). 9 The Tamil kinship terminology makes a distinction according to seniority and in the terms of address does not distinguish father from uncle: father’s eldest brother is called eldest father and the father’s younger brother, younger father. There is no general term for brother, but two different ones for elder and younger, which includes parallel cousins. 10 ‘The TAT is a projective measure intended to evaluate a person’s pattern of thought, attitudes, observational capacity, and emotional responses to ambiguous test materials. In the case of the TAT, the ambiguous materials consist of a set of cards that portray human figures in a variety of settings and situations’, Encyclopedia of Mental Disorders available at http://www.minddisorders.com. 11 See for instance the well argued decision by the Limoges Appellate Court (14 February 2007, No 06/00718) dismissing the prosecutor in a similar demand to annul a marriage between a French-Moroccan couple: ‘The consul general explained that one of his agents had received the couple on 26 May 2004 and had noticed that the would-be spouses did not know each other. The Limoges prosecutor consequently summoned the spouses on 22 December 2004 to hear the procedure to annul their marriage which had been celebrated on 27 July 2004. The tribunal de grande instance dismissed the case (10 March 2006) considering that the prosecutor did not prove the absence of matrimonial intention since it was recognized that the marriage had been celebrated according to the Moroccan traditions in front of family and friends, with a traditional feast given by the wife’s parents as shown in the photographs, as well as the gift of a 10,000 dirham dowry from the husband to the wife […] The court finally observed that the “arranged marriage” celebrated without the spouses really knowing each other was to be considered in its cultural context and did not exclude matrimonial intention’. See http://www.dequeldroit.fr/jprude/jprud.php.

Part II

Conflicts

Chapter 4

Being on and being in Exposure and influence of academic experts in contemporary Denmark Stig Toft Madsen

It is said about Immanuel Kant that his routines were so predictable that townspeople could set their clocks by his daily stroll. Kant evidently lived a disciplined, cloistered and risk-averse life. By contrast, most academics today repeatedly venture out from their studies to perform on different public arenas to varying effect. The most common sites of performance are their own departments and universities. Very few academics manage to make a career without interaction with students and colleagues on home turf. While at the Department of Sociology in Lund University, I was told that Johan Asplund – known for his studies of human sociality – did manage to keep social interaction with students and colleagues to an absolute minimum. Compared with such unique personalities, the average academic is as extrovert and gregarious as Asplund holds humans to be. Off the home turf, academics may give guest lectures or participate in workshops and seminars dedicated to a particular subject matter. Large-scale conferences offer venues for social interaction around a wide variety of topics. Academics of my age and provenance, including social scientists and scholars of South Asia, probably attend between two and ten extra-mural seminars or conferences in a year. The academic arena, however, is only one among several arenas at which academics may perform by virtue of their academic competence. In the first part of this chapter I discuss three distinct settings outside universities where academic qualifications, as well as competence, are put at stake. These three arenas are: • • •

media appearances the courts hearings and consultations in ministerial and parliamentary settings.

While the chapter examines the role of the academic in each of these arenas, it also makes an attempt to compare them. Thus, the first part of the chapter is an exploratory venture into the ‘sociology of soul-selling’ (Gouldner 1970: 383) as it applies to academics ‘being useful’ (Nincic and Lepgold 2000). Because I am not familiar with the existing Danish literature dealing with such a topic, much of the material I will present in the first part of the chapter has been drawn from my own experience. Since my experience of the different arenas in which experts participate is uneven, my treatment will vary in length and detail.

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In the second part of this chapter I will discuss the influence or reach of academic expertise by looking at a few recent conflicts in Denmark where academics could be expected to make themselves useful. I surmise that Danish academics (particularly social scientists and area specialists) have not been very prominent as expert witnesses in court cases relating to issues such as Islamic terrorism and gang warfare on which I choose to focus. However – not unexpectedly – a number of academics have been prominent in the public debate around such issues. Their input has been a part of the debates which have taken place outside the courts in the printed and electronic media. This part of the chapter discusses the constellation of opinions and policies that have emerged in trying to come to grips with terrorism and concludes that a strong focus on prevention and the very limited number of terror cases that have been heard in Danish courts have offered little scope for academic expert witnessing. While challenges to the Danish legal system have multiplied, the manner in which courts and the legal profession deal with these challenges has not radically changed.

On being on: exposure Demand-driven performances Performances on the three non-academic arenas mentioned previously tend to be ‘demand-driven’, that is, the academic has to fit into a framework not created by his or her university or think tank. Such sites are far removed from the archetypal extra-mural academic performance, the guest lecture, where academics are encouraged to perform solely within their own field of competence on a topic of their own choice. Such ‘supply-driven’ performances are rare outside academia, where the academic is instead summoned or called upon to interact with people educated in other disciplines. The turnover time in such arenas is typically faster than that in the core academic performances. While an academic may produce a few books and 20 or 100 articles in a life-time, non-academic performances, such as media appearances, may arise and mature in a matter of minutes. The market for academic performances is ideally a perfect market where the meritorious scholar is rewarded. The market for academic goods on other arenas may well dispense with such grand illusions. Because they are structured across different social fields and mediated by gatekeepers who have a set agenda and are short on time, such markets are often less transparent. On such arenas, the academic who routinely delivers on demand will be considered a better bargain than the equally meritorious academic who cannot be trusted to deliver. The academic expert making media appearances For the past 12 years, I have made a large number of ‘media appearances’ on TV, radio and in newspapers in Denmark, as well as a few in Sweden, as an expert on South Asia. Academically my main area of specialization is India, but the media

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remains focused on Afghanistan and Pakistan, as well as Kashmir, rather than on India despite India’s recent economic rise. Thus, in this demand-driven market, an old India-hand is turned into a new Pakistan-hand. Not being a solid Pakistanhand, I have been forced to rely partly on my ability to infer from India to Pakistan, or from South Asia in general to Pakistan. While an area studies academic may view Pakistan ‘laterally’ from India or from Afghanistan, experts with a disciplinary background in International Relations may handle Pakistan from ‘above’ and from afar. Both may fit the bill in so far as their respective take on Pakistan may enlarge or modify existing Danish views. Expert interviews on Danish TV and radio are often ‘one-on-one’ interviews, that is, the expert is placed across from the journalist conducting the interview. The interview may be prefaced by an introduction to the topic read out by the host and supplemented by an interview with a journalist reporting from abroad. In theory the journalist reporting from abroad bears witness to the events taking place, while the expert provides the background information. In reality the person reporting from abroad may not have access to more detailed information than what has already reached the studio through other channels of communication such as the BBC world news service. As an expert is often summoned to the studio because a particular event has taken place, the discussion tends to centre on that event and its possible future ramifications rather than on its antecedents. Being forced to pronounce on possible future scenarios may well be anathema to an academic. When prodded about questions such as ‘how serious is this?’ and ‘do we have to worry about this?’ the academic is pushed into taking either an alarmist or a non-alarmist position. If the expert responds with the answer that the situation is ‘not so serious’ the audience may wonder why they should bother listening at all. If the expert declares that ‘the situation is serious’ he or she may be crying wolf in the wilderness. Being on live television or radio is risky in so far as questions may be asked to which the expert has no answer. Moreover, many academics tend to entangle themselves in a series of tiresome ‘ifs and buts’ in order to show their mastery of the field and in order to avoid committing themselves to a particular viewpoint. Acknowledging these risks, the interest of the host lies in making full use of the expert who is therefore treated with respect as the person who may throw light on matters confounding even the anchor. The expert is a guest whose knowledge the anchor wants to tap into in order to lay out the news for the viewers or listeners. The host therefore tries to elicit relevant and sharp comments from the expert. The intention is not to make a fool of the expert by exposing his or her limitations. Running backstage comments from the producer to the host, such as ‘STOP HIM NOW!’ are not relayed to the expert. Tips and feedback may be exchanged after the show is over in a brief and frank form of evaluation, but the expert making guest appearances in the media is not formally evaluated as happens in the academic context. The real test is whether a new invitation is extended on a future occasion. According to Stig Hjarvard, Danish newspapers and other media have moved into a phase in which they are forced to brand themselves sharply in order to keep

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market shares in a market continuously threatened by free newspapers and cuts in public spending. Therefore they occasionally fashion outlandish and provocative stories to catch the attention of the public. For example, the newspaper Politiken started a fund to employ Iraqis whose application for asylum had been rejected. Being employed on a high salary would stall their refoulement. Politiken thus became a political actor repoliticizing the newspaper (Hjarvard 2006). In my experience, participants in ‘one-on-one’ interviews are under no such pressure to produce startling ideas likely to change the course of events. On the contrary, the media landscape is rather flat. The approach of the two main television stations to news and views related to South Asia differs only marginally. Even newspapers approach commentators in similar ways, posing questions that do not differ drastically. What makes a difference is the knowledge that the journalist already possesses and the time available for the interview. If an expert loses, or gives up, his or her status as a neutral analyst with no axe to grind or an area specialist with a useful store of knowledge to draw upon, he or she may better fit into a ‘one-on-two’ interview where a person with a clear stake in an issue is interviewed in opposition to another person who also has a stake in the issue. Here the advocate of a position is routinely challenged regarding the veracity and soundness of his or her known position both by the host and by the opponent. Such confrontations tend to produce a loser and a winner, or a draw. An expert whose shell of neutrality is ‘broken’ will have difficulty regaining the status of a neutral expert, but may be left free to play an advocacy role. There are many variations on these basic schemes. Several radio programmes in Denmark last an hour or more. In such programmes several guests may be in the studio, either one after the other or simultaneously. Even here, the tenor of the programme may be exploratory rather than confrontational. Thus, the host may take turns asking the members of the panel different questions, thereby circumnavigating, but not entirely dodging, expressions of disagreement between panellists. The many questions fielded by the host place high demands on the store of knowledge of each expert. Such rounds of questioning may appear like an exam where the knowledge gap between the host – who may be an experienced journalist – and the experts closes. The interaction, thereby, may be reminiscent of a seminar or a symposium. Other radio programmes offer a narrower time slot for the expert interview. The early morning programme on Danish Radio called P1Morgen [Morning on Programme One] typically allows between four and eight minutes for each topic. Because the programme is broadcast from 6 am onwards, the expert is generally phoned a day or two in advance to discuss the questions relevant to the upcoming discussion and to sound out from the expert what his or her answers are likely to be. As the programme is mostly broadcast live with the expert either taking the interview on the phone or as a guest in the studio, there is no guarantee that the expert will actually say what he or she first intended to say, but the interview still turns out more ‘scripted’ than the longer free-ranging interviews already described. When it comes to the news at the top of the hour, the walls really close in.

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Time-wise the window of exposure may go down to 30 seconds or less. If broadcast live, the expert will be expected to stick to an agreed line of argument. If the interview is pre-recorded, the editors will cut and paste the expert’s interview and supplement it with interlinking comments from the journalist responsible for the spot in order to craft a story with a good flow. In this model, the voice of the expert merges with that of the journalist. Before proceeding to the court setting, a few words about the physicality of the mass media arena may be in order. The telephone interview is highly flexible as regards the locale. It may literally be engaged in from anywhere: home, office, a car, in the open air, or even from a small village in South Asia. The TV studio appearance is less unencumbered. It generally involves the following series of transactions: getting the call and making an agreement; more or less hurriedly preparing for the interview; turning up at the appointed hour; make-up; being wired with a microphone; meeting the host; awaiting one’s turn; giving the interview while taking care to control one’s comportment and being careful not to overturn the glass of water standing on the table; ending the interview; disentangling from the microphone and any earplug; suitably retreating to a position outside the camera’s view; removing the make-up; leaving the establishment in a pre-paid taxi; and, finally, waiting for the adrenalin to subside. Although tightly structured and largely predictable, the situation epitomizes excitement, adventure and risk. At the same time, the setting is conducive to concentration: ensconced in a cave-like studio, the world is temporarily shut out. Mobile phones are turned off. In the radio studio an almost holy phase of ‘radio silence’ may be declared by the host in the minutes before going on air. Not surprisingly, appearing in the mass media bestows prestige on the academic who makes repeated appearances. For an academic like me, who has partly failed on the academic labour market, being a media expert has temporarily dispelled some of my accumulated cynicism about things academic. To paraphrase Bilawal Bhutto: ‘Media appearance is the best revenge.’ Despite such (vain)glory, media appearances in Denmark and Sweden generally constitute free gifts offered by experts who earn their money elsewhere. To most Danes, who naïvely presume that knowledge and expertise are financially rewarded, this comes as a big surprise, but the fact is that experts are generally not paid for giving interviews in printed or electronic media. To make oneself available is considered the obligation of a good citizen. Equally, it is a way to promote oneself or the organization one may represent. Because Danish TV and radio have to produce more for less money, the media often chooses to rely increasingly on external experts rather than tasking their own already strained journalists with slow investigative journalism. This opens the window of opportunity more widely for the academic willing to operate ex situ. The expert witness in court My experience as an expert witness in court is limited to two appearances. One in the early 1980s was an honour-related case of attempted murder. The other in

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2009 was a case of planned terrorism. Although my experience is scant, it may be fairly representative. Compared with the physical setting of a seminar or a TV studio, the court setting is complex in the sense that it includes a large number of widely different actors who may be placed in the foreground in different phases of the often very long proceedings. In a courtroom interests are at odds, as they are in Parliament. At the same time, the court setting is strongly hierarchical, more so than is the case in Parliament where MPs are seated almost as equals. At the apex the judges – who may wear capes but not necessarily make-up – preside over the proceedings in a highly visible manner that is, however, invisible to the outside world. The world of academia offers situations of high personal import such as exams and the public defence of a dissertation. Contemporary TV channels also feature shows where judges, often assisted by the viewers, evaluate and pass ‘sentences’ on participants performing in various contests. But unlike media hosts and academics, the judges in court pass a sentence in the legal sense. Between them, the judges, the prosecutor, the defence lawyers, the witnesses and the jury decide the fate of the accused, while the police monitor the unruly elements likely to be present. The expert witness is a small fry in this scheme of things. In academia, a case is typically flaunted to make a point of a wider theoretical nature or to illuminate all aspects of a problematic equally. In court, the case at hand is not an apt illustration from which inferences may be drawn. In court, the case and culpability is what counts. The gravitas in a criminal court is rivalled only by the gravitas of the hospital or the church. Apart from hierarchy, the court situation also exhibits the adversarial logic inherent in Western law. The apportioning of guilt is arrived at by building up a case in support of one’s clients, while systematically undermining the position of the opposing party. When the social scientist or the area specialist is called upon by either the defence lawyer or by the prosecution to act as an expert witness, he or she enters a world which is more confrontational than the one-on-one expert interview in the media and more grounded in reality than academic encounters. The merging of the voice of the journalist and the expert that may take place in the media does not easily recur in court where the expert witness is not allowed to define the situation. Rather, in order to promote or safeguard the interests of the state or of their clients, defence counsel and prosecutors may well test the expert. For example, an expert may be asked promptly to pronounce their expert opinion on a piece of evidence without having been confronted with the exhibit beforehand. In Danish courts, expert witnesses may be called by both defence lawyers and by state prosecutors. In both the cases in which I have appeared it was the defence side which called upon me. In the first case, as far as I can recollect, the defence side aimed to support their clients by drawing upon my deposition to the effect that in South Asia honour crimes are not always strictly prosecuted. A person of South Asian descent living in Denmark would, therefore, not necessarily realize the extent of culpability arising from murderously defending his or her honour. In the event, the punishment meted out to the youngest family member behind

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the attempted honour-killing at hand was milder than expected. My testimony as an expert witness might have contributed to this. During the 1980s, immigrants were given a long leash as compared with the situation after 2001 when a rightist government was elected in the wake of the 9/11 attacks. Looking mildly at culturally sanctioned practices, such as honour-killings, was part of the habitus of good intentions cultivated by most anthropologists (and by many others) that paved the way to the much harsher post-9/11 world. My appearance in the more recent appeal case was also at the behest of a defence lawyer. One of the issues raised during my testimony was the quality or veracity of material submitted in the case by a more experienced American expert witness and the background material submitted by PET, the Danish secret police. Thus, in tune with the fundamentally adversarial logic underlying court procedures, a window of opportunity was opened for one expert witness to cast aspersions on another expert’s opinions. This may be compared to the first case in which one apparent goal of the defence lawyer was to cast aspersions on South Asian legal systems. In this manner, the legal world sets up a hard contest, rather than an academic contestation retaining a larger element of play. Courts are meant to produce winners and losers by apportioning guilt. The expert is fitted into this scheme. In court, the expert witness is seated in the witness box facing the judges in the same manner as other witnesses and the accused. The judges for their part represent the ultimate authority in the case. There are no backstage producers editing the show for a wider audience as it goes along. Proceedings are ‘unscreened’. The academic may discount the possible presence of criminals in academic settings and in the TV studios, but not in a courtroom. Instead, experts appearing in court cases are brought into closer physical contact with the accused and possibly with their victims, all of whom converge in the courtroom. Although a case may go to appeal, there is a finality to court cases, which is qualitatively different from that in less adversarial contexts. In his book The Expert Witness, Stanley Brodsky presents a series of rulesof-thumb relevant to expert witnesses in US courts. In the United States one may expect to encounter ‘some whirlwind of an attorney’ who ‘will huff and puff with a hundred mile an hour wind and try to blow your testimony down’ (Brodsky 1999: 61). Such persons may not appear in Danish courts, but the co-evolution of Western law is so marked that Brodsky’s experience is relevant for Denmark, too. Everywhere, the counsel who calls on the expert witness will want an expert who performs authoritatively. But the more chutzpah the expert can muster the less certain the counsel can be that the expert will say what he wants him to say. Moreover, if the expert becomes too dominating, the other side will devise ways to cut him down to size. The academic being useful in ministries and in Parliament Speaking truth to power often comes naturally to people whose area of study is power. The world of power and the study of power connect. In the discipline of

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International Relations scholars ‘are concerned with simultaneously understanding the world and instructing statesmen’ (Jervis 2008: 571). Even so, scholars and ‘practitioners’ alike often perceive a ‘gap’ that needs to be ‘bridged’. In the USA, the gap may have been widening in recent years (Nye 2008). In Denmark, by contrast, it has been closing as the government has laboured to rein in the universities. Since 2001, universities and think tanks have been put under a cloud of suspicion from which they could only emerge by proving their relevance. The outdated system of collegial democracy within the universities has been abolished. The university managing boards (working under the ministerial whip) are now quicker to register the wishes of the private sector and of the public powers-that-be. The triple helix is a model, which figuratively urges the state, the private sector and universities to create new links (Delman and Madsen 2007: 3–5). In effect, figuratively speaking, universities and think tanks are now open to encodings and mutations at all the turns and twists of the triple helix. Academic hiccups notwithstanding, the public in many ways welcomed the arrival of new public management techniques. Crisis and challenges at home and abroad helped close many gaps between academia, the state and the market. The economic boom that lasted until 2008 made all old barriers and constraints seem irrelevant. Gender-wise women have spread their wings to dominate not only in kindergartens and schools but in many university departments as well, bridging many gaps left gaping by the old men who used to rule the roosts. Within the Ministry of Foreign Affairs, the official mind no longer considers the making of foreign policy its monopoly. Foreign policy is made by many official and unofficial actors. The ministry now sees its role as a node which integrates a complex whole. Increasingly, the ministry calls on experts to sit on policy-making panels. The Director of the Strategy and Policy Planning Unit encourages doctoral students to participate in Diplomatic Summer Schools and to study the inner workings of the ministry.1 Among the Scandinavian countries, Norway has been a pioneer and has sought to oil the ‘transmission belt’ between academia and diplomacy by setting up a venue called ‘Refleks’ to identify and study Norwegian interests in a globalized world (see Utenriksdepartementet). New initiatives apart, some ministries continue to call on academic expertise from research institutions charged with servicing particular ministries. Such servicing – ministerbetjening – may sometimes be toothless because the institute concerned aims to please officialdom (Auken 2010: 50). Universities may also accept on an ad hoc basis particular pieces of research that feed into the process of lawmaking or into administrative reform. Apart from that, individual experts may be invited on an irregular basis to participate in ministerial conclaves or in parliamentary committee work. Meetings called by a ministry tend to gather together stakeholders from both academic and non-academic contexts, including NGOs. Such meetings may be small, in which case they may be productive. In larger forums, however, the parties would seem naturally to engage in a mildly recriminatory tit-for-tat. The ministries complain about the lack of relevant and timely research within their fields of

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operation, while the academics and other stakeholders tend to complain about the insufficient funds available for their particular activities. When a ministry flags a new area of priority, stakeholders shamelessly start to manoeuvre themselves into positions from where they may tap into expected funds. This tendency seems to level the playing field by exposing everyone to their dependence on public funds. The contrast between media appearances and court appearances, which involve few pecuniary rewards, is striking: the absence of monetary considerations in media and in court appearances is one less distraction. Although the government that came to power in 2001 vowed to limit the use of experts in political and administrative processes, the Danish Parliament (Folketinget ) still has several committees. Some of these invite experts for ad hoc consultations. One such parliamentary committee is the Foreign Affairs Committee, which may conduct informal meetings with experts at which MPs from different parties in and out of government are present. In my limited experience, proceedings in such committees are brisk and to the point. The MPs are likely to know each other well while the invited respondents may have been brought together for the occasion. The experts may choose to face the MPs by presenting a jointly prepared intervention, but because the guests – whether academics or not – are called upon in their individual capacities, they may not agree on the issue at hand. Issues of international relevance may also be taken up in larger semi-public hearings. Such hearings may take place in the now defunct Upper House meeting hall of Parliament (Landstingssalen). Since such meetings are explicitly geared to provide an input into the policy-making process, academic participants probably feel freer to air their convictions than they do in many other contexts. Often, however, this is hardly worth the effort because especially invited foreign guests tend to steal the thunder. When divas such as Vandana Shiva and Sunita Narain discuss environment and development in the Third World, or when top-notch American or British academics enthrall their audience, what more is left for a Danish academic to say except ‘yes’? Unlike the Danish mass media, the courts and the closed parliamentary committee where Danish is the preferred language, the language of command in many large hearings in Parliament is most likely to be English. Summary So far I have sketched three contexts in which experts perform by engaging in ‘a relatively time-limited presentation of self’ (Brodsky 1999: 52). The contexts differ in their internal logic and modus operandi. Being on a media show or appearing in courts or parliamentary meetings is not a natural extension of routine academic work. Extra-mural performances are not easily routinized but remain specialized improvisations of a temporary nature. The markets for such extra-mural services may also be less transparent than the academic market where, as we all know, only academic merit counts. They are also less remunerative. The pay-off may be counted in Bourdieu’s soft currency of distinction rather than in hard cash

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(Bourdieu 1984). That does not mean that these markets are unimportant and unattractive. In recent years, universities in Denmark have started pushing faculty members to become publicly visible in order to showcase the usefulness and relevance of the universities. Whether media appearance or making oneself useful to decision-makers in turn furthers an academic career is a moot point. When it comes to evaluating applications for academic positions, monographs and peerreviewed articles is still what counts the most. One Danish participant-observer Clemens Kappel (Orientering 2010) has argued that making media appearances is a positive waste of time from a career point of view. Thus, the three settings do not necessarily synchronize although they may appear to do so.

On being in: influence In the second part of this chapter, I will take a closer look at the influence exerted by academics through their extra-mural appearances. What does ‘being on’ entail in the way of ‘being in’? Where does the influence of public academics exert itself? In particular, what is the import of expert witnessing? In attempting to answer these questions, I will concentrate on two kinds of crimes that the country has experienced recently, namely gang warfare and terror. Terrorism in modern Denmark may be traced back to the 1960s. Its incidence has declined, but the fear of terror has increased as terrorism has gradually taken on the shape of Islamic terrorism. In the USA and in the UK, the states’ response to the threat of terror has itself posed a major threat to the rule of law (Bingham 2010: 133–59). In Denmark, too, it sometimes appears as if freedom walks out the back door when terror knocks on the front door. Organized crime is also not a new thing to Denmark, but in recent years gang warfare has become a fixture of urban life to a degree hardly imaginable a few decades ago. I will argue that the manner in which academics have articulated their views on these two important topics to a large extent conform to what one would expect in an open society with a liberal press. Academic expert witnessing has played a marginal role in court cases relating to gang warfare. Very few experts have been used. As regards terror cases experts have been heard, but the cases are few and terrorism has been construed more as a problem of prevention and legislation. While debates concerning law may have moved centre-stage, such debates occur mainly outside the courts. As elsewhere, the question of plural law has gained new relevance. In Denmark the discussion about the phasing out of legal monism to give way to the pluralization of law based on cultural constituents has taken place to a large extent with reference to the role of shari’a in civil cases. According to Rubya Mehdi, varieties of Islamic law are already practised in Denmark informally, just as they are in Paris (Warburg 2006: 109). Hence, it is argued, it only behoves the state to take note of this development and integrate shari’a formally into Danish law and procedure by widening the scope for state-sanctioned mediation provided, of course, that shari’a does not violate human rights (Termansen 2005). This point of view has recently been fielded in greater detail in a book edited by Jørgen S Nielsen,

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Hanne Petersen and Lisbet Christoffersen entitled Shari’a as discourse: Legal traditions and the encounter with Europe. The book received wide coverage in the media, and Naser Khader from the Conservative Party, among others, argued that allowing a wider role for shari’a would accelerate the slide towards the creation of parallel societies (Deadline 2010). The most forceful reaction to the idea that legal pluralism and multiculturalism strengthens the state and democracy has come from Jens-Martin Eriksen and Frederik Stjernfelt. Their book Adskillelsens Politik (The Politics of Separation), which starts with a portrayal of actually existing multiculturalism in Malaysia, contains a detailed critical reading of the rise of culturalism and multiculturalism in the discipline of anthropology from Claude Lévi-Strauss onwards. The book proceeds via the Muhammad cartoon controversy to end with a chronological listing of threats to freedom of expression and freedom of religion resulting from the politics of separatism (Eriksen and Stjernfelt 2008). Such debates on legal pluralism also underlie debates on gang warfare and terrorism. Notable anthropologists and expert witnessing Universities do not hector their faculty members to appear as expert witnesses in court. However, some social scientists, including anthropologists, have repeatedly served in court cases. The most well-known anthropologist in Scandinavia to do so is Unni Wikan from Norway. She has been an expert witness in key cases involving immigrants and, moreover, she has written extensively about the lifeworlds within which male and female immigrants to Norway and Sweden live and die (Wikan 2008). In her earlier books from 1995 and 2002, Wikan challenged prevailing notions of cultural determinism that construed crime among immigrants as expressions of their culture and held that immigrants could not be held accountable for doing what their culture had socialized them to do. This view, she argued, sacrificed human rights and equality in the eyes of the law in a misguided attempt on behalf of the Norwegian majority to avoid being accused of racism. In line with her husband, the anthropologist Fredrik Barth (who famously saw ethnicity as actively negotiated), she advocated a close reading of the divergent pressures that motivate male and female migrants in new surroundings. Wikan has described her experience of expert witnessing and cultural mediation in the Anooshe case in which an Afghan man shot and killed his wife on the steps of a Norwegian courthouse in these terms: In the Anooshe case I was called as an expert witness, on the initiative of the accused’s defence lawyer. All of my sympathy was with the victim, all my sympathy! But when you are sitting in a courtroom and see and hear the ‘native’, the accused, then I have to understand, I have to listen. By listening intensively you try to put yourself in the place of the other person. This is not possible without a certain amount of empathy – and you have this whether you want it or not. It’s what the anthropological method is based upon – ‘to take the native’s point of view’. Fieldwork in the courtroom is so interesting

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because it makes me try to understand people who I would never have originally chosen to understand. (Culcom 2006) The quotation bears out how a contemporary anthropologist may find herself being betwixt and between ‘the witness and the police’ (Angel-Ajani 2008: 79). On the one hand, anthropologists may see themselves as engaged observers and ‘public witnesses’ fashioning their ethnographies as weapons of the weak. On the other hand, to gain credibility ethnographers also have to investigate human activities, drawing evidence from small cues in the environment and exposing contradictions by persistent questioning as if they were police officers. Although comparable to Norway academically, no anthropologist in Denmark has played the role of an expert witness reflexively witnessing the act of being an expert witness in a manner akin to Unni Wikan. Among Danish anthropologists immigrants are frequent subjects of research in the health sector, but immigrants are less frequently studied in legal contexts. Perhaps, the Danish anthropologist Anne Knudsen is the closest equivalent to Unni Wikan. Anne Knudsen is the chief editor of the weekly newspaper Weekendavisen. In her prolific writings she has inter alia deployed her anthropological insight on Corsican vendettas to the Copenhagen gang wars (see below). In Sweden, the anthropologists Jonathan Friedman and Kajsa Ekholm Friedman caused considerable consternation by arguing that the Swedish academic and political elites have deliberately closed their eyes to the danger to the welfare state brought about by immigrants unlikely to pay enough taxes to sustain the high level of social solidarity in that country. The West, Jonathan Friedman argued in 2002, would descend into an economic crisis reminiscent of the last 100 years of the Roman Empire. Being a world system theorist such comparisons loom large in Friedman’s writings (Lillelund 2003). Friedman’s argument captures the clash between societies with a high degree of social solidarity or cohesion, a high degree of trust (including trust of politicians), and a high rate of taxation and other entropy-resistant communities with a high ability to resist incorporation, including legal incorporation, into larger societies. Although well known for their views, it appears that neither Kajsa Ekholm Friedman nor Jonathan Friedman have acted as expert witnesses in Swedish courts. Academics and molecular wars One of the few persons who has been called as an expert witness in gang war cases was former high ranking police officer Jørgen Iselin. The near absence of academic expert witnesses is noteworthy because gang warfare is a major new development in Denmark. In the following I will briefly review the emergence of the phenomena. After that I will revisit one particular case to illustrate how and when academics perform publicly in relation to gangsterism. Contemporary gang wars typically occur between biker gangs of mainly Danish descent and immigrant groups controlling various mohallas of the city.2 In a recent

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book three journalists attached to the midday paper Ekstra Bladet have detailed the dynamics and recent history of gang war with a focus on Copenhagen. The book opens with the murder of a 19 year old man on 14 September 2008 and ends with a drive by shooting aimed at a group of youngsters on 11 February 2010. In the intervening period there were around 110 shootings of which at least 90 may be classified as attempted murder. As most shootings were impulsive rather than well planned, and because many of the gangsters wear bulletproof vests, only seven people were killed. Around 55 were wounded. Several of the wounded had no relationship to any gang. In 2009, the police ‘watched over’ 140 members of Hell’s Angels and 132 of the AK81, which is the supporter group of Hell’s Angels. In addition, the police watched over at least three distinct immigrant gangs in Copenhagen: 26 persons from Blågårds Plads, about 30 persons from Mjølnerparken and about 16 persons from Tingbjerg (Fischer et al. 2010: 238). In 2009, the police made 17,977 searches, while some 121 persons were arrested for gang-related activities. Considering the very high number of shootings, the number of convictions has been low. One tally shows that the police have failed to make progress in twothirds of the most serious cases (Kristeligt Dagblad, 26 April 2010). Witnesses have been hard to find. Rioting has broken out both inside and outside the courts in connection with court proceedings. Despite the searches and various attempts to undermine the illegal market for weapons, the gangs have been well armed. Guns have been smuggled in small quantities from the Balkans and Eastern Europe and traded in closed circuits. One shop called City Guns located less than 100 meters from the city court managed for years to sell weapons despite the police having placed a microphone in the shop. The owner simply asked his costumers to point out which gun they wanted from a catalogue (Fischer et al. 2010: 145). Weapons for sale to the underworld were also procured by robbing an army cantonment for weapons meant for the Danish soldiers in Afghanistan (ibid: 143). The police unit dealing with organized crime initially had about 80 men and was assisted by the Security and Intelligence Service (PET) (ibid: 97). As the gang warfare escalated new legislation was introduced which doubled the punishment for threatening witnesses and for illegal possession of arms and also made it easier for the police to tap phones etc (ibid: 112). The tightening of the laws was broadly supported by political parties. The citizenry in the affected areas took to the streets protesting against the collapse of security in residential areas. Finally, the tax department officials were brought onto the streets to help the police confiscate expensive cars, gold chains and other items bearing witness to a level of consumption incommensurate with stated sources of income. What is noteworthy in the account provided by Fischer, Frederiksen and Jensen is the near absence of academic input and involvement. Social scientists virtually do not figure in their account. To be sure, a few Danish and American academics did analyse the gang wars in terms of economic interest and notions of honour in the media. Students at Roskilde University remain among the few who took up the topic in their projects. Is it possible that a more fine-grained approach may

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reveal the role of expert advice and analysis? The following case-study details one early but path-breaking criminal case to illustrate which experts enter into the debate and how. Expert voices and the Copenhagen gangland: an illustrative case For three decades, the main retail market for hashish in Copenhagen had been run by a mélange of pushers from Pusher Street in Christiania, a hippie squatter colony close to the centre of the capital, when the government declared its intent to regularize the area. In a series of police raids in 2004, old and young pushers, mainly ethnic Danes, were rounded up and detained for months. In a separate move, several members of the tightly knit motorcycle gangs of Hell’s Angels and Bandidos were awarded long prison sentences for masterminding the trade. The demand for hashish, however, remained high. The daily turnover at Pusher Street alone was estimated at one million Danish Kroner. For some time, pushers of immigrant origin had demanded access to Christiania’s hashish market, but they were turned away by a cartel of established pushers who ruled that only pushers residing in Christiania were allowed to sell hashish. Having a girlfriend at Christiania, it was ruled, was not enough. The increased police pressure on Christiania’s pushers unlocked a window of opportunity for the immigrant pushers, who opened a string of hash clubs outside Christiania. In an apparent bid to establish their new dominance, a dozen masked immigrants entered Pusher Street on 21 April 2005 and indiscriminately opened fire, killing one person (Fischer et al. 2010: 170). This was not the first murder in Christiania, but it was unusual because its intent was to spread terror rather than to eliminate a particular rival. Moreover, apart from light weapons, the group deployed a machine gun. The gang escaped in two cars, one of which was later traced to a person living in Nørrebro, an area in the northern quarter of the city. Nørrebro and the neighbouring Nordvestkvarteret (the North-western Quarter) used to be working class areas, but have undergone a process of renovation and gentrification. Flats here have become popular investment objects for Danes drawn to a swinging urban life-style. But it is also an area with public housing schemes catering to a large number of people who can ill-afford to buy a flat. Some of these are Danes; many are immigrants and Muslims. People sometimes proudly refer to Nørrebro as ‘Nørrebronx’ to signify its cosmopolitan verve. But this is also an area where the writ of the state has repeatedly been contested, and where the state finds it difficult to attain a principled response.3 On 28 May 2005 a violent confrontation occurred in this area revealing its complex patterns of conflict and accommodation. The person shot and killed was Ammar Hasan, a 24 year old Palestinian immigrant. His elder brother, Tumana Hasan, was wounded. Tumana had a long criminal record. He had been detained in connection with the murder in Christiania, and was released from jail the day before he was wounded. For some time, Tumana and his brothers had allegedly

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run a profitable hash club, called the Gold Mine, very close to a fashionable music joint named Rust (Jensen 2005). It was the doorman, or bouncer, of Rust who opened fire on the two brothers when they and their friends attacked him. Ammar died on the open street amidst scenes of anger and outrage. Rust is a progressive music joint named after the German Mathias Rust who landed a light plane on Red Square in Moscow in 1987. Rust prides itself on having an easy-going multi-racial atmosphere: it has no ‘skin code’. The doorman had served Rust efficiently for a number of years prior to the clash. Doormen in Denmark are not supposed to be armed, but many are. According to newspaper reports, it was the Hasan brothers who had given the doorman the weapon he used against them. Like his victims, the doorman is a Palestinian. Unlike his victims, he had a clean criminal record, but he apparently developed a friendship with the Hasan brothers and went shopping with them in Dubai in 2004. Subsequently, their relationship had deteriorated. According to one reading of these events published in the leading daily paper Politiken on 17 June and repeated in Fischer, Frederiksen and Jensen (2010: 165), the clash occurred because the owners of the Gold Mine wanted Rust to remove a surveillance camera they had mounted to cover its entry-area. Traffic to and from the hash club was within the range of that camera. On the afternoon of the murder the camera was surreptitiously removed, presumably by people connected with the hash club. The doorman was called on duty because an alarm had sounded. Thus, when the doorman turned up, his loyalty was tested. His employer had put up the camera. His Palestinian ex-friends wanted to remove it. In another version of the story, the clash occurred because the doorman had provided information to the police about the shoot-out at Christiania. After the shoot-out, the doorman was taken into police custody and accused of manslaughter and attempted manslaughter. The wounded Tumana Hasan was taken to the country’s main hospital, where he was under custody. Two days later, a group of youngsters invaded the hospital ward and forced his unarmed guards to let him go. Enter the shari’a Owing to a combination of bureaucratic red tape, lack of political will and internal disagreement, Danish Muslims were without a major graveyard of their own in 2005. Therefore, Danish Muslims have often been buried in their country of origin. Ammar was buried on the West Bank, where his family has a major presence. Having fled Denmark after his rescue from the hospital, Tumana was able to attend his brother’s funeral. Before the funeral in Palestine, a ceremony took place at a mosque in the north-western part of Copenhagen. The imam, the late Abu Laban, also hailed from Palestine. His speech at Friday prayers was a call for peace aimed at calming the clamours for revenge which apparently reverberated in the area. At this juncture, Abu Laban proposed that blood money be paid. The shari’a, he suggested,

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prescribed the payment of 200 camels as compensation. Taking the price of a camel to be 1000 Danish Kroner, a sum of 200,000 Danish Kroner would be a fair compensation to forestall revenge, he opined. Later he said that the family of the doorman might leave Copenhagen as an alternative step to keep the peace. The media reported that the doorman’s relatives in Denmark and Sweden were, in fact, ready to negotiate a settlement, but the relatives also stated that they felt as if they were back in the Palestinian refugee camps in Lebanon, where they had once lived. Abu Laban’s proposal sharply divided Danish public opinion. On the one hand, there were those who argued that to minimize the risk of further violence, the legal system should be open to mediation, provided such mediation would not prevent the law from taking its course. The dean of the law faculty at the University of Copenhagen, Vagn Greve, and the chief editor of Politiken, the late Tøger Seidenfaden, both acknowledged the wisdom of the imam’s timely and well-intended intervention. In their eyes, the situation called for flexibility (Termansen 2005). Other newspapers featured editorials that condemned the payment of blood money as an infringement of the state’s legal prerogative. Anne Knudsen – the anthropologist who had written her doctoral dissertation on Corsican vendettas – argued that family and tribal feuds privatize violence and undermine the rule of law. Moreover, she pointed out, the payment of blood money often fails to break the cycles of revenge. It was not simply that Abu Laban had miscalculated the price of a camel in Denmark, which would cost 35,000 Danish Kroner rather than the 1000 Danish Kroner apiece he had roughly calculated (Bjørnvig 2005). At stake was whether criminal law should remain monistic, or give in to the twin pressures of the shari’a and tribal mores. In the words of Margit Warburg: ‘Abu Laban clearly based his suggestion on traditional Muslim legal precepts where quisas, or retribution, may be compensated with diya, or blood-money, even though in interviews he attempted to rephrase this’ (Warburg 2006: 111, my translation). The debate was played out in full public view. Rikke Hvilshøj, the minister for immigration, confronted Abu Laban on prime-time television. Speaking in English, Abu Laban argued in favour of blood-money. The minister said ‘no’ to the introduction of this ancient custom.4 On 8 June, Rikke Hvilshøj’s private car was set on fire in the middle of the night at her residence outside Copenhagen. The car was parked in a garage and the fire spread to the residence itself, although the minister and her family escaped unhurt. Danish politicians frequently receive hate mail and death threats, but this was the most serious attack on a prominent politician. In an email, a hitherto unknown group assumed responsibility for the attack on the minister. The email justified the attack on the minister as a protest against Danish refugee policy. It specifically mentioned the harsh deportation policies enforced by the state. The email was traced to an internet café on Nørrebro, and soon one person was arrested. Subsequently, charges against this person were dropped and instead the owners of the internet café were suspected of having falsely implicated the person in order to avert the gaze of the police.

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Limping back to normal Rust re-opened with a vow to work for ‘safe streets’, but it also posted a notice stating that late-night revellers may be asked to produce a valid ID to gain entry. The government tightened the law with a view to deterring the entry of young immigrants into the world of crime. Its harsh measures almost amounted to collective punishment. Cases were opened against the persons accused of the Christiania shooting spree and against the group who freed Tumana Hasan from the hospital. Tumana himself was traced by a television station to Jordan. In an interview, he promised to return to Denmark after the Ramadan. The doorman who shot Ammar Hasan was freed on 20 October in a secret hearing during which the public prosecutor agreed not to frame charges of manslaughter against him. A video sequence of the incident had convinced the public prosecutor (but not necessarily others) that the doorman spoke the truth when he said that his life was in danger and that he had acted in self-defence. He was awarded a prison sentence of five months for illegal possession of arms and released forthwith. As the news about this decision spread, the lawyer defending Tumana Hasan accused the police and the judge of letting go of the doorman so that he might later bear witness against Tumana. The decision to free a person, who had shot and killed another person, without a full trial was virtually unprecedented and deeply problematical, he said. The decision was debated in parliament, the Ombudsman produced a report on the issue, and penal law jurists from the University of Copenhagen expressed their opinions in the media (Bernth 2006). Tumana Hasan did return to Denmark and was sentenced for his involvement in the Christiania shooting and for attacking the doorman (Fischer et al. 2010: 171). How do we interpret the societal and political impact of the violence in the Copenhagen ganglands? On the one hand the material shows that the old pillars of liberal democracy remain in place: the police, the courts, the MPs, the press, the academics and other public intellectuals all respond to the challenge as one would expect. On its part, the public demonstrates and remonstrates but it does not take the law into its own hands. People cross their fingers and tie the cycle helmets more securely in the hope that the bullets will peel off. What then is new apart from the unprecedented levels of violence? One new element was that Abu Laban was able to articulate an Islamic point of view concerning the situation. The Islamic voice became part of the media landscape. It is noteworthy that over the same period Danish criminals who are not Muslims have also made repeated appearances in the media. The Hell’s Angels even have a designated media spokesperson. Thus, new voices – the voices of gangsters and Islamists – have emerged without displacing old voices. As for the academic experts, they continue to participate in debates on principles of justice in public forums but they hardly speak from the witness box. In cases of gang warfare, social scientists have not yet acquired the kind of ethnographic knowledge or theoretical weight that could make them attractive as expert witnesses. The gangs make repeated use of the

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same set of lawyers to defend them, but the lawyers do not call upon a set of academic experts to appear in the case. Terrorism and the ad hoc experts Apart from gang warfare, Denmark has been engaged in two other major trysts with destiny: the wars in Iraq and Afghanistan and the clash on home turf with terror. The war in Afghanistan has cost the lives of more Danish soldiers than any of the other expeditionary forces relative to the size of the country. The economic costs of running this war/development operation have forced the military to cut expenditure in the homeland. Together with the Muhammad cartoons, the active Danish foreign policy in Iraq and Afghanistan is one reason that the threat of terrorism has increased. Denmark has been the target of terrorism since the late 1960s. Initially, terrorism was mostly secular and leftist and often associated with the Palestinians and their cause (Blüdnikow 2009, Knudsen 2007). Since the early 1990s, however, the threat of terror has been Islamist. There is a widely shared impression that Denmark was slow to react to this evolving phenomena in the 1990s. As France has accused the UK of ignoring the creation of Londonistan, others have accused Denmark of serving as a safe haven for known extremists (Bonnichsen 2008: 63). Several of the initial trials of suspected terrorists in Denmark ended without convictions. In a major case in 1996 against three Egyptians, new terror laws were put in force for the first time. More than 100 witnesses were called, some of whom openly lied in court. The court proceedings turned into a farce when defence lawyers, the accused and their supporters in the court-room combined to ridicule the attempts of the prosecution to prove the case. All three accused were found not guilty as the prosecution failed to prove that their many links to major figures abroad, including to the ‘blind sheikh’ Omar Abdel Rahman, their strange travels to Afghanistan, their maps with likely targets and their purchases of explosive material constituted proof of terrorist planning (Skjoldager 2009: 48–59). A chemist expert witness informed the court that the material brought by the accused could be used as explosives (Skjoldager 2009: 54), but otherwise Skjoldager’s account of the proceeding gives the impression that the Danish judicial system, including the judges, were too innocent about Islamic radicalism to fathom and contextualize the activities of the accused. One could argue that had academic expertise been deployed in earnest in the early 1990s, such massive ignorance would have been dispelled at an earlier date. The prosecution experienced similar defeats in the Glostrup case (Glostrup sagen) where four men stood accused of being in league with two others already convicted in Bosnia. In this case, which was decided in 2007, the lay judges in the appellate court (Landsretten) found the four accused guilty, but in an unprecedented move the juridical judges overruled their decision and found only one person guilty. In a review of the case in the same court initiated in 2008, but with new judges and new lay judges, the roles were reversed: the judicial judges argued for conviction, but this time the lay judges found the remaining accused innocent

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(Skjoldager 2009: 206–36). In the course of this case, the prosecutors wanted to field expert witnesses to provide general information about the radicalization process and also wanted a character witness (a school teacher) to appear in court proceedings to give testimony about the personality of one of the accused. The defence argued that such a line of argument would indicate that the religion of Islam as such was on trial. This, it was argued, would influence the lay judges to judge the accused on the basis of their religion (Schmidt 2007). The court overruled this objection and a researcher, a policeman from PET and the teacher were called to give evidence. Considerations of context and cultural background, it seems, have over the years become more of an asset to the prosecution, reversing the earlier situation when foregrounding culture and context would often stand to benefit the accused. Despite the systemic failures of the prosecution to secure convictions in cases which in Skjoldager’s account reek of culpability, the learning curve of the judicial system started to rise drastically after 11 September 2001. By then the secret police had started revising their operating methods. In terms of academic input, the then chief of PET, Hans Jørgen Bonnichsen, started collaborating with the early-bird terrorism expert Lars Erslev Andersen even before 2001 (Bonnichsen 2008: 24, 52, Bonnichsen 2006: 191). Step by step, various academic models of Islam, radicalization and terrorism became incorporated into the thinking of the Danish police. Key persons in the universities, including prominent Middle Eastern specialist Jørgen Bæk Simonsen, also contributed their insights from the region. Thus, Bonnichsen was instrumental in bridging the gap between the police and a number of academics in a manner that few would have considered possible. Both Jørgen Bæk Simonsen and Lars Erslev Andersen have also appeared as expert witnesses in cases relating to Islamic radicalism. In addition, the two are probably the most well known analysts of Middle Eastern affairs and terror-related issues respectively in the Danish media. After his retirement in 2006, Bonnichsen himself became a prominent security analyst on Danish TV. He maintains that he did not turn commentator as a result of a spin operation by the police, but did so of his own volition (Bonnichsen 2008: 169). Possibly, he might even have turned public against some of his old colleagues who did not agree with his policy of what may be called enlightened terror-control. On the other hand, it is clear that the police have fostered other media-savvy policemen in uniform in a bid to strengthen their media image. Bonnichsen has written two books on the subject. His book Frygt og fornuft i terrorens tidsalder (Fear and Reason in the Age of Terror) is a low-key but insistent liberal defence of human rights and personal liberty, which he claims are becoming undermined in Denmark and worldwide in the aftermath of the wave of irrational fear of Muslims that the 9/11 attacks unleashed. Bonnichsen has been accused of being ‘naïve’, although he sees himself as a law-abiding police officer whose task it was to prevent terror even when that meant that he had to forge links with imams in order to secure their cooperation as he actually did during the Muhammad cartoon crisis (Bonnichsen 2008: 217). One may discern here a professionalization or ‘academization’ of the police, paralleling the ‘academization’ of the army both

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at home and in its overseas operations. PET now has its own Centre for Terror Analysis (Bonnichsen 2008: 176), while in Afghanistan the army does development work under the heading of Civil-Military Cooperation (CIMIC). Previously, intellectuals were widely scorned both in the police and in the army. The new transmission belts connecting the police and academia have encouraged Bonnichsen to quote not only Huntington but also Fukuyama and even Bourdieu. These emerging enlightened alliances show how parties to conflicts may engage in institutional learning as conflicts unfold. Within PET such new visions and missions have been accompanied by increased manpower. The strength of the secret police increased from 300 in 2001 to around 750 in 2008 (Bonnichsen 2008: 176). In the army, the new era has meant budgetary cuts, but in terms of employment even anthropologists have found windows of opportunity opening. The ex-PET chief’s unlikely role as a liberal conscience-keeper of the nation has not gone unchallenged. Naïve, non-alarmist halal-hippies blindly bent on appeasement have been challenged by a number of alarmists, including journalists, spin-doctors and priests, as well as politicians from parties ranging from the Social Democrats to the rightist Danish People’s Party. Many more vociferous commentators fill the blogging space on the Internet (Jensen 2009). Their calls for tougher policies sometimes bear fruit, but because no act of terror has occurred in recent times their influence is limited. The police, including PET, in fact enjoy considerable respect and gratitude among the public. People are probably willing to accept a poor rate of conviction in cases of attempted terror provided timely arrests actually prevent acts of terror. Thus, the police record in terror cases is more solid than their record in handling gang warfare. It is also more successful than the record of the Danish military in Iraq and Afghanistan. This is probably one reason why the judicial system has not been drastically altered after the emergence of terrorism. New terror laws have given more power to the state, but court proceedings have not changed much. In many of the cases, a handful of experienced defence lawyers provide legal cover for the accused. The degree to which such lawyers have monopolized major terror cases has made a minister of justice argue that they should refrain from taking on additional cases because their excessive caseload has led to delays in court work (Møller and Havskov 2006). With expert lawyers ruling the roost, expert witnesses have stayed within their hitherto assigned roles.

Conclusion When the British colonized India, they engaged Muslims and Hindus to act as interpreters of Islamic and Hindu law in the courts. British judges were expected to drink deeply from the pool of knowledge concerning Hindu and Muslim law in order to pass verdicts in disputes involving marriage, divorce and inheritance. The fountainhead of this tradition was Orientalist scholarship which may be exemplified by NB Halhed, who in 1776 published A Code of Gentoo Laws. Subtitled The Ordination of the Pundits, this work rested on a collaboration between Halhed

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and 11 ‘professors’ of Sanskrit, who created a text ‘picked out sentence by sentence from various originals in the Shanscrit language’ to derive from that a ‘precise idea of the customs and manners of these people’ (Metcalf 1994: 11). On the façade of the district court building in Copenhagen a 13th-century dictum is carved: Med lov skal man land bygge, which may be translated as ‘A country shall be built through law’. The input into that process comes from legislation and public debate more than from scholars. Contemporary Danish courts do not easily afford space for a Halhed version 2.0. In independent India, the Supreme Court has reinvented itself several times. The reason for that is the obvious miscarriage and delay of justice that occurs in courts in India. In Denmark, the legal system has not yet failed to a similar extent. Hence, the demand for reinvention has been less pronounced and the scope for expert witnessing to affect such reinvention similarly modest.

Notes 1 René Dinesen at a seminar on ‘Academia and Foreign Policy Making: Bridging the Gap’ at the Danish Institute for International Studies, 26 April 2010. 2 On the Pakistani sense of belonging to various quarters in Copenhagen, see Steensgaard 2010. 3 In May 1993, the police fired 113 shots at crowds protesting the result of an EU election. This incident led to the constitution of several fact-finding commissions. It may also have led the police to devise smarter methods of policing, as in the case of terror prevention. 4 Surprisingly the payment of blood-money was not finally removed from Danish law until 1866 (Bjørnvig 2005).

Chapter 5

Witness statements and credibility assessments in the British asylum courts 1 Anthony Good

In British asylum appeals strict rules of evidence do not apply, because asylum applicants cannot generally be expected to produce corroboration of their ill-treatment to the standard required in other courts. One important consequence of this is that decisions as to the credibility of the applicant’s story become crucial. Immigration judges must first decide ‘do I find this person and their story wholly or partly credible?’ and only then can they go on to determine whether, on the basis of what has been deemed credible, that person falls within the scope of the 1951 Refugee Convention. The stories being judged in this way are initially presented to the court in at least two forms: as transcripts of the asylum interviews conducted by officials of the UK Border Agency, and as witness statements prepared with the help of the applicants’ lawyers. There may also be versions of the story provided in medicolegal reports or reports by ‘country experts’ such as myself. These multiple versions will be critically assessed, first in cross-examination and then by the immigration judge, for their consistency, plausibility and credibility. This chapter – based on ethnographic research in British asylum hearings and at meetings between lawyers and clients; interviews with lawyers, case-workers and judges; and archival research – looks at these contexts in which asylum applicants are required to narrate their stories of persecution, and at some of the constraints which may prevent those narratives from being effectively given or properly understood. It focuses on administrative and legal processes in the United Kingdom, but raises more general questions about the assessment of credibility by officials and judges. There have been numerous recent analyses of credibility in asylum contexts by both academic and practising lawyers: for example, Weston (1998), Jarvis (2000) and Sweeney (2009) for the UK; Coffey (2003) for Australia; Pfeiffer (1988), Ruppel (1991), Anker (1992), Kagan (2003), Pepper & Mateen (2006) and Anker et al. (2008) for the USA; and Byrne (2005, 2007), Thomas (2006) and Millbank (2009) for international contexts. Like most such writing, these studies focus almost entirely on written judicial decisions, especially in higher courts.2 The approach taken here, however, is ethnographic rather than jurisprudential; that is, although it cannot avoid discussing legal statutes, administrative rules, and judicial determinations, it views credibility assessment above all as praxis and process.

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The legal process of claiming asylum in the UK When someone applies for asylum in the UK, the initial decision whether or not to grant him or her refugee status is taken by the United Kingdom Border Agency (UKBA), a branch of the Home Office. Most applicants undergo an initial screening interview to establish their identity and collect basic personal information, but the decision on the claim is based largely on an asylum interview conducted by a UKBA case-worker. Here it is important to distinguish between so-called ‘legacy cases’ which have been in the system for some years, and the New Asylum Model (NAM), one key feature of which is that, in theory, the entire process from asylum interview to possible appeal before the tribunal is dealt with far more speedily and by the same case-worker throughout. There is yet a third process, the ‘detained fast track’, under which applicants are detained on arrival and decisions may be taken very quickly. UKBA refuses the great majority of asylum applications, as Table 5.1 shows. A Reasons for Refusal Letter (RFRL) is then sent to the appellant, explaining the decision. Most refusals entail rights of appeal at public hearings, heard by immigration judges (henceforth IJs) from the Asylum & Immigration Tribunal (AIT). It is also possible for applicants to seek judicial review of tribunal decisions by the High Court (or the Court of Session in Scotland), and each year a few cases reach the Court of Appeal or House of Lords (now the Supreme Court). Since 2004, pathways which appeals may follow through the courts are quite complex (see Figure 5.1).3

Table 5.1 UK asylum decisions 2006–2009 Outcomes of asylum claims

2006

2007

2008

2009

Initial asylum decisions

20,930

21,775

19,400

24,550

Granted asylum

2,170 (10.4%)

3,545 (16.3%)

3,725 (19.2%)

4,175 (17.2%)

Humanitarian protection

2,300 (11.0%)

2,200 (10.1%)

2,170 (11.2%)

2,575 (10.6%)

Refused

16,460 (78.6%)

16,030 (73.6%)

13,505 (69.6%)

17,805 (73.4%)

Withdrawn

1,780

1,230

2,740

3,330

Appeals determined by AIT

15,955

14,945

10,720

14,595

Appeals allowed

3,540 (22.2%)

3,385 (22.6%)

2,475 (23.1%)

4,155 (28.5%)

Appeals dismissed

11,595 (72.7%)

10,735 (71.8%)

7,585 (70.8%)

9,69 (66.4%)

Withdrawn

820 (5.1%)

825 (5.5%)

660 (6.2%)

750 (5.1%)

Sources: Control of Immigration: Quarterly Statistical Summary, October–December 2009 (http://www. homeoffice.gov.uk/rds/pdfs10/immiq409.pdf; last accessed 24 March 2010).

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Conflicts UK Border Agency (UKBA) appeal against refusal of asylum

Asylum & Immigration Tribunal (AIT)

appeal against remitted AIT decision

order for reconsideration

remitted

review of AIT decision

Administrative Court (High Court)

appeal from legal AIT panel

reference from Administrative Court

Court of Appeal appeal against decision

House of Lords

Appeal Process Under Asylum & Immigration (Treatment of Claimants, etc.) Act (2004)

Figure 5.1 The asylum appeals process. Figure adapted from Thomas (2005: 468).

At asylum appeals appellants are usually represented by barristers in England and solicitors in Scotland, while the Home Office representative is a Presenting Officer (HOPO), a civil servant who is generally not legally qualified. Hearings begin with the appellant’s examination-in-chief. This is normally very short; counsel merely asks his or her client to confirm that the contents of the asylum interview transcript and witness statement are true and that the client wishes to submit them as evidence. Any necessary amplifications or corrections are briefly explored. The appellant is then cross-examined by the HOPO. This is the longest part of the hearing, because HOPOs ask detailed questions about events in the transcript and statement, often deliberately returning to the same issues several times in the hope of receiving inconsistent replies, which they can then use to cast doubt on the appellant’s credibility. There is then an opportunity for counsel to re-examine the client should he or she so wish. Very occasionally, other witnesses may be called to corroborate parts of the story or give oral expert evidence. Finally, the representatives address the court with their closing submissions. HOPOs’ submissions generally involve attacks on the appellant’s credibility. They also cite ‘objective evidence’ about the situation in the appellant’s country of origin, which is said to support UKBA’s position. On the Home Office side, such evidence consists almost entirely of the country reports produced by its Country of Origin Information Service (COIS). Appellants’ representatives begin by answering the credibility points and then offer rival interpretations of the objective evidence. They too may cite COIS reports, but will usually also have submitted other documents

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such as news items, or reports by human rights bodies, doctors or country experts. The IJ must then produce a written determination announcing the decision, which must be justified on the basis of a credibility finding, findings of fact on the appellant’s story and an indication of the weight given to each piece of evidence. Over the past few years, roughly one-quarter of first appeals have been successful.4

The importance of credibility Because corroborative evidence is so often lacking, credibility assessments based on the internal coherence of the account and its external consistency with ‘objective evidence’ are used throughout the decision-making process to filter out supposedly ‘bogus’ claimants (Weston 1998: 88). The danger, however, is that such decisions may display prejudice or misunderstanding when the person whose credibility is being assessed comes from a cultural background very different from that of the assessor (Bingham 1985: 14; Kalin 1986; Ruppel 1991: 5). The importance of credibility was set out by UK’s Immigration and Asylum Tribunal (the forerunner of the AIT) in a 2005 decision written by its President: Findings of credibility are one of the primary functions of the Adjudicator, since they lead to the establishment of much of the factual matrix for the determination of the Appellant’s case. In some cases, but by no means all, the issue of credibility may be the fulcrum of the decision as to whether the Appellant’s claim succeeds or fails. (SW v SSHD) The importance of credibility is similarly stressed by the Immigration and Refugee Board of Canada, which notes that judges almost always have to ‘decide if they believe the claimant’s evidence and how much weight to give to that evidence. In determining this, they must assess the credibility of the claimant, other witnesses and documentary evidence’ (IRB 1998: Foreword). In its general survey of the issues involved in assessing whether evidence is ‘credible or trustworthy’, the board states that testimony must be evaluated in the light of: … conditions and laws in the claimant’s country of origin, as well as the experiences of similarly situated persons in that country. The Federal Court has cautioned, however, that ‘[t]here can be no consistency on findings of credibility’. Credibility cannot be prejudged, and is an issue to be determined … in each case based on the circumstances of the individual claimant and the evidence. (IRB 1998: para 1.2) The guidelines note that credibility findings must be properly founded on the evidence and reasonable inferences drawn therefrom (IRB 1998: para 1.6). They should consider the evidence altogether, not bit by bit, and even if particular

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pieces of evidence are found to lack credibility – in which case ‘clear reasons must be given’ – the claim must still be assessed on the basis of whatever evidence has been found credible (ibid: para 2.1). If there were equivalent guidance for British decision-makers it would be unlikely to differ greatly.5 The crucial questions, however, are whether, how or to what extent such principles are put into practice by the Home Office and judiciary. Because credibility findings ‘go to the heart of the identity’ of asylum applicants, one senior IJ has written: ‘to get it wrong is to add insult to injury … to inflict yet further damage upon a human being who has already undergone experiences incomprehensible to most of us’ (Jarvis 2000: 6).

Principles of credibility assessment As shown above, credibility assessment is the key initial step in the overall assessment process. What, then, is meant by credibility? According to the UNHCR Handbook, the basic requirement for an asylum seeker’s account to have credibility is that it should be ‘coherent and plausible’ and ‘not run counter to generally known facts’ (UNHCR 1992: §204). For their part, the Asylum Policy Instructions (APIs) – the manual used by UKBA case-workers – in setting out detailed procedures avowedly designed to minimize the role of subjectivity and ‘unfounded assumptions’ in case-workers’ decision-making, suggests that they should first assess the internal and external credibility of the applicant’s story and then decide whether to give them the benefit of any doubt (http://www.bia.homeoffice.gov. uk/sitecontent/documents/policyandlaw/asylumpolicyinstructions/apis/credibility.pdf?view=Binary; last accessed 11 March 2008). ‘Internal credibility’ means that the applicant’s evidence is ‘internally coherent and consistent with past written and verbal statements, and consistent with claims made by witnesses and/or dependants and with any documentary evidence submitted in support of the claim’ (ibid). In assessing this, case-workers are told to take account of the level of detail provided and the degree of consistency in the applicant’s account.6 Two explicit assumptions are made here, which will be examined further below: It is reasonable to assume … that an applicant relating an experience that occurred to them will be more expressive and include [more] sensory details such as what they saw, heard, felt or thought about an event, than someone who has not had this experience. […] It is reasonable to assume that an applicant who has experienced an event will be able to recount the central elements in a broadly consistent manner. An applicant’s inability to remain consistent throughout his written and oral accounts of past and current events may lead the decision maker not to believe the applicant’s claim. (ibid). ‘External credibility’ refers to whether the applicant’s account is ‘consistent with generally known facts and country of origin information’. If a case-worker

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discovers ‘objective country information that clearly contradicts the material claimed fact(s), this is likely to result in a negative credibility finding’ (ibid). On the other hand, if the available country of origin information does not directly corroborate an applicant’s story but does not contradict it either, the applicant may be given the ‘benefit of the doubt’ in accordance with paragraph 339L of the Immigration Rules.7 This can, however, only be granted in cases where ‘the general credibility of the applicant has been established’ (ibid), and in practice UKBA doubts the credibility of at least part of almost every applicant’s story. Indeed, in the opinion of many asylum lawyers, UKBA’s presumption is that all applications are ‘bogus’. Even this brief account illustrates that ideas of ‘objectivity’ are central to the legal analysis of credibility. It is important to note, however, that ‘objectivity’, like ‘fact’ and ‘truth’, is here defined according to legal convention. For scientists ‘objective’ and ‘subjective’ mean external and internal to the observer, respectively, whereas in legal usage ‘objective’ refers to the subjectivity of ‘the reasonable man’ (Kandel 1992: 3). Likewise, ‘truth’ and ‘fact’ are defined pragmatically, rather than metaphysically by lawyers: a ‘fact’ is a matter which has been proved to the required standard, whereas ‘truth’ is a statement made by a credible witness.

Telling their stories For most asylum applicants the principal evidence of the persecution they have experienced is provided by their personal stories of suffering. On numerous occasions during the course of their asylum appeal, they are required to tell those stories. In a purely structural sense these occasions are all alike: fairly rigidly structured dialogues involving, paradoxically, three participants: questioner, asylum applicant and interpreter. However, despite being structurally similar, these contexts are of course fundamentally different in terms of the purposes and motives of the questioners and the interviewing strategies followed. The first is generally the screening interview, held soon after arrival in order to establish the applicant’s identity, nationality and mode of travel. This does not explore the detailed substance of any claim, but applicants are asked in general terms why they have come to the UK; they may well be tired and frightened, but if they make even very slight errors – over dates, perhaps – these will be held against them later. The substantive asylum interview with a UKBA case-worker, a few weeks or months later, goes into the claim in far more detail, although the mode of questioning often restricts applicants’ abilities to explain their claim fully as they themselves see it. It is not the case, of course, that applicants know better than case-workers what information is relevant; in general, their knowledge of refugee law is slight. Even so, if given the opportunity to explain things fully in their own terms, they would almost certainly provide further details which would clarify the significance of particular events. However, as is true to some degree of every stage in the asylum process, their ability to do so is constrained by a number of factors (Rycroft 2005), including time pressures on the interviewer, the need to work

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through an interpreter and, underlying both of these, the limitations intrinsic to the artificially rigid question-and-answer format employed in legal processes (Atkinson and Drew 1979). In parallel with this interview process the appellant will prepare a witness statement with the help of his or her legal representative.8 Here the above constraints, although still present, are less intense, because the questions are more open-ended and the questioner, although equally probing, is more sympathetic. Ideally, taking a statement involves several sittings, because the experience is emotive and tiring; details have to be checked and the final product has to be read back to the appellant in his or her own language. This procedure may be truncated by the increasingly niggardly provision of legal aid, however, and nowadays may even be forestalled by the speed of the process; under NAM, and especially under the Detained Fast Track, there may barely be time to produce even a rudimentary witness statement. Many applicants also narrate their stories to doctors who prepare medico-legal reports; however, this creates yet another risk of minor discrepancies seemingly arising in the applicant’s account. The applicant’s representative may sometimes take a supplementary witness statement after the refusal letter has been received, in which the applicant rebuts any points based on errors or misunderstandings. Finally, there is the appeal hearing itself, when appellants are subjected to detailed cross-examination. Many legal representatives see taking the statement as a useful ‘dress rehearsal’ for the asylum interview, but that does not necessarily mean that they will actually submit the statement to the Home Office prior to that interview; they may see that as a hostage to fortune, giving UKBA case-workers extra opportunities to search for discrepancies. However much their opinions and strategies differed on such tactical matters, all the legal practitioners interviewed stressed the key importance of the witness statement in building a case: Absolutely one hundred per cent crucial, in the British system. You might have seen in court, it so much centres on credibility, and therefore, you know, asylum seekers often won’t be documented so it really is down to them giving an account of their experiences. Unfortunately, when you take a case where there hasn’t been a good statement, you’re already on the back foot.

SOLICITOR A :

The processes whereby asylum lawyers structure their clients’ statements to maximize their impact as evidence have received little attention up to now,9 but it seems reasonable to expect that such accounts will need to be converted from what Conley and O’Barr (1990) call ‘relational mode’ into ‘rule-oriented mode’. Their research, in small claims courts in the US where claimants generally present their own cases, shows that the ways in which lay persons present evidence in court lie along a continuum. At one extreme, litigants who display a ‘relational orientation’ tend to define rights and responsibilities in terms of

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‘a broad notion of social interdependence rather than … the application of rules’ (ibid: 61). For example, if the case involves a dispute with a neighbour, they will focus less on the particular event which led to them being in court and more on their generalized moral outrage that someone who has lived beside them for years, should violate the social norms of good-neighbourliness. This is unlikely to be a successful strategy, because it conforms to a logic very different from that of the law. Consequently the courts ‘often fail to understand their cases, regardless of their legal merits’ (ibid: 61). At the other extreme, those litigants who adopt a ‘rule-oriented’ approach ‘evaluate their problems in terms of neutral principles whose application transcends differences in personal and social status’ (ibid: ix). Because such a perspective resembles that of legal professionals themselves, there is a better chance that people who present their problems in this way will be fully understood. Consequently, in two cases of equal merit, it is the rule-oriented litigant who is more likely to be successful. Because they are usually unfamiliar with legal proceedings of any kind, let alone the particularities of law in the country where they are claiming asylum, it is very likely that asylum applicants will display a relational orientation in their responses during interviews and cross-examination. Not only that, in the great majority of cases they are unaware of the provisions of the Refugee Convention, and hence of the basis upon which their asylum claim will be decided: But on the other hand, they still don’t know what is relevant and what isn’t, and this is one of the major, major problems with, for instance, on-arrival asylum interviews or people who get a NAM interview within three or four days, when there’s barely time to even see a solicitor.

SOLICITOR B :

When asylum applicants’ cases are put on their behalf by their lawyers, their submissions will inevitably be converted into rule-oriented format. Perhaps because of this, many applicants are baffled by the whole process of taking the statement, and their lawyers must repeatedly remind them what it is for. This exchange came after six hours of interviewing spread over two sessions: He doesn’t understand the whole purpose of having a statement. We have to explain to the Home Office why you don’t want to go back to Somalia, so they need to understand what problems you had before and why you believe there would be problems on return. And the thing is, you didn’t come as soon as the civil war started, so they will want to know what prompted you to leave. So this statement explains your difficulties … They are going to think, is this man from Somalia, first of all; then, does he really belong to a minority clan; then, would he be at risk on return? So with all the details we have taken, they will understand what your life was like. And also why you didn’t leave before, because so many persons have left.

INTERPRETER : SOLICITOR C :

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It seems quite common for representatives to address this incomprehension using cinematic analogies: It’s like this, in simple terms. If it’s an uneducated client, I tell my client, ‘this is like creating a good movie’. You can have a real, genuine story, but you have to produce it, and direct it, and present it in a different way, so all those skills have to be employed without which, even the best story on the planet can’t attract people to watch that particular movie. So that’s why it’s very important to present it in a very simple, chronologicallyordered, understandable way.

SOLICITOR D :

With these provisos, the asylum interview, the witness statement and the appeal hearing itself, all provide opportunities for asylum applicants to tell their stories of persecution. For some applicants, however, a narration of the incidents most helpful to their claims has to be coaxed out of them by sympathetic, trusted questioners. Moreover, these stories often come out differently on different occasions, giving rise to the ‘discrepancies’ which Home Office staff are always seeking to identify.

Hiding their stories One ‘common sense’ UKBA assumption is that genuine applicants will mention all serious incidents of persecution at the earliest possible opportunity. No doubt some applicants do indeed want to tell their stories whenever possible – perhaps to draw attention to their political cause – but whether it is reasonable to expect all applicants to reveal intimate personal details, straight after arrival, to strangers in a strange country, is another matter. Yet if they do not immediately reveal their full story upon arrival, however, but only later reveal it to their doctor or lawyer, UKBA always attacks their credibility. The following Refusal Letter to a Sri Lankan Tamil woman is typical: … when the immigration officer asked you whether you had any other reasons or events that caused you to seek asylum, you did not add anything further. Even bearing in mind, your apprehension as expressed in your additional statement, he considered that your failure to mention anything about the alleged rape … undermined your credibility in raising it later. Yet that interview was conducted by a male immigration officer in the presence of a male, Tamil lawyer. This was bound to inhibit disclosure. Shame before men generally, and a fear that information may leak out to local members of their community, greatly inhibit the willingness of many Tamil women to disclose sexual assault. Many have not even told their own family what happened. IJs usually pay more attention than UKBA case-workers to the cultural reasons why women may not divulge sexual assaults on such occasions, but they too do not

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always accept this as a sufficient explanation. Yet it is well known that many rape victims in Western societies, too, fail to report rape attacks (Burgess and Holmstrom 1974), and because of the extra pressures they face, one might expect this to be at least as true for refugees, who might be reluctant to disclose certain information even at the cost of weakening their legal cases. It takes skill, empathy and time to build up the degree of trust needed for disclosure to take place: So how do you make them comfortable enough, in order to disclose the information? SOLICITOR B : Well, I think when they realize how well-disposed I am and that I am actually interested in the amount of detail that I am, you know, they regard that as a major compliment. It’s just like any human relationship … somebody’s really, really interested in you, that’s a very touching thing, you know, and … when they realize that that is actually going to benefit them, then they sort of open up like a flower, and start disclosing information voluntarily. AG :

Such reticence is displayed by men too. Doctors from the Medical Foundation for the Care of Victims of Torture have reported that male asylum applicants from Sri Lanka who have suffered sexual abuse during detention are even more likely to remain silent until a relationship of trust has been established than are female rape victims (Peel et al. 2000; Peel 2002) and this has led solicitors to uncover many more cases that would have been missed previously: I was doing Tamil cases for years and I just … I might have asked it in a female case, but in the male cases I just assumed, you know, that nobody male would get raped. And then that Medical Foundation booklet came out, and I was very, very sceptical. So then I thought, well I’d better start asking, and gradually learned the delicate art of eliciting that … and was absolutely astonished to find what percentage of them had been raped. And of course none of them had told me before, because I’d never asked it; and it’s an extremely sensitive matter which they weren’t going to volunteer, unless they were put on the spot about it.

SOLICITOR B :

This can be stressful for the lawyer too. In the following passage the solicitor relives his embarrassment as he explains how he goes about broaching the topic: The first thing is not to sort of plunge straight in … get them really talking first, and probably talking about torture … and then get the relative or friend out of the room, quite unceremoniously, you know … So even if it’s an implication, you know, that I’m going to ask that, at least it gives the person some privacy. And then you’ve got to say, ‘The … this … you know, has, has this happened to you, have you suffered any, erm, rape or sexual abuse. I mean, I know it’s a very, very awkward and sensitive

SOLICITOR B :

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matter, but it’s actually extremely important for your claim that you tell the truth about this, and if it’s any consolation to you, erm, you know, actually the great majority of my male Tamil clients have been raped. So if you have been, you know, it’s – if that makes you feel any better about it – and, and that’s the case. What is more, it often turns out that in initially suppressing this shameful element of their experience, the asylum applicant has been forced to omit or downplay other incidents too, which might otherwise have given their account greater credibility and thereby helped their case: If that is later disclosed, and perhaps supported by psychiatric evidence, then that’s a legitimate reason for reopening a case and … you know, that can actually sort of throw a whole new perspective on everything, because it may reveal why other things have not been disclosed. I mean quite often there may be torture that’s not been revealed, and then it turns out that the reason for that was, because it was all intermeshed with the rape, and the person didn’t feel that they could start talking about the torture, in case that led on to questions about the rape, so, you know, whole chunks have been left out.

SOLICITOR B :

Clearly, therefore, it would be quite wrong to base a negative credibility finding on initial silence alone; explanations for late disclosure should be taken very seriously. That does not of course mean that every applicant who finally claims to have been raped is telling the truth. IJs must decide on overall credibility, and there is no doubt that the existence of a medical or psychiatric report supporting a claim to have been raped may greatly strengthen the case in practice.

Remembering traumatic experiences 10 Another ‘common sense’ supposition in the Asylum Policy Instructions, as quoted earlier, is that traumatic experiences will be remembered with great clarity and vividness. It follows from this assumption that variations between different narrations of an event are seen as damaging to credibility, even if these narrations take place years apart. That, of course, is why UKBA case-workers are always seeking to identify apparent inconsistencies in applicants’ stories. On both counts, however, the evidence of oral historians, anthropologists and doctors points in the opposite direction. Elaine Scarry (1985: 4) notes that the physical pain of torture ‘does not simply resist language but actively destroys it, bringing about an immediate reversion to … the sounds and cries a human being makes before language is learned’ (ibid: 4), while Stuart Turner points out that torture also has the ‘ability to shatter relationships [and] destroy trust’ (1995: 58). Not surprisingly, many torture victims find it hard to discuss such experiences. Many cannot achieve this degree of

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‘agency in the face of disempowerment’ (Hastrup 2003: 314, citing Arendt 1958 and Jackson 2002), but even if they manage to do so with the aid of a sympathetic interlocutor, their accounts are often drab, ‘listless’ (Daniel 1996: 143) recitations from which ‘all the emotional edges have been eliminated’ (Scarry 1985: 32). The judge, expecting something with far more emotional bite, may find this unconvincing. It is also clear that stories come out differently on different occasions, even under the best of circumstances, and recent medical research involving Kosovan and Bosnian refugees illustrated that such differences are even more pronounced when trauma is involved (Herlihy et al. 2002; cf Cohen 2001, Herlihy 2005). When Turner summarized these findings to an audience of IJs, several openly admitted that they generally based their credibility judgments on the consistency of accounts with previous versions, but Turner confirmed that discrepancies in recounting past experiences are high under any circumstances, but higher for traumatic events. His research therefore indicates that such discrepancies have no necessary connection with overall credibility. Of course, some discrepancies and confusions may indeed indicate untruthfulness, but that decision has to be based on overall credibility, not purely on the discrepancies themselves. Such arguments will seem almost commonplace to scholars working on oral histories and life stories. For example, Linde argues that within wide limits life stories are judged by listeners in terms of coherence rather than factuality (1993: 220). The causal chain in such narratives must be perceived by the listener as ‘adequate’ (ibid: 221) in terms of the most ‘pervasive and invisible’ coherence system of all, namely, common sense – the set of beliefs and understandings which speakers and listeners from similar cultural backgrounds assume they both share (ibid: 222). In the case of asylum narratives, however, the cultural and experiential differences between teller and listener may mean that the scope for such common sense assumptions is greatly reduced. Seen in this light, it becomes clear why witness statements are so crucial. They allow legal representatives to structure their clients’ accounts according to the causal and common sense expectations of European legal cultures, although this causal adequacy may of course begin to unravel again once cross-examination starts. It is also widely accepted that the full meaning of a narrative emerges only during its performance and relates in part to ‘the interaction with … the audience and its expectations’ (Finnegan 1992: 93). This process is, however, greatly inhibited by the procedural rules applying in law courts, most notably the highly artificial (in relation to everyday speech contexts) question-and-answer format of cross-examination. Although this is intended to circumvent ‘practical problems posed by ordinary discourse’ (Atkinson and Drew 1979: 8), one effect is to diminish ‘the rhetorical force of the account’, making it less involving for the speaker, less dramatic and interesting for the listener and – potentially – less credible for the judge (Conley and O’Barr 1990: 40). The need to use interpreters has further dampening effects on the performative force of appellants’ own utterances.

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The key interviews It is not only the passage of time which leads asylum applicants to narrate their stories in different ways, but also the differing strategies employed by their various interlocutors. As Conley and O’Barr (1990: 171) put it: A story does not exist fully developed on its own, but only emerges through a collaboration between the teller and a particular audience … a research interviewer asking questions, a judge presiding in an informal court, a lawyer talking with a client. In this connection, several legal representatives explicitly contrasted their own techniques for eliciting information with those of UKBA case-workers in asylum interviews: How do you actually start to elicit the story, and discover what the issues are? SOLICITOR B : Well, I normally go back much further than the Home Office would, because it certainly was always a Home Office tradition that the first question they ask is, ‘So what made you come here?’ So you end up with the last question first, and it’s very, very confusing for clients, because then they think they’re not required to go back any further in an interview. But my technique is exactly the opposite, which is to delve right back into ancient history and say, okay, did you or your family suffer any persecution in the 1980s? And that opens it up, you know, that sort of question. AG :

For example, one UKBA asylum interview with a male Sri Lankan Tamil applicant begins as follows: CASE-WORKER : Please tell me about your problems in Sri Lanka. APPLICANT : You want me to … er … to, from the start or from

when I was

born? I’m interested in the problems that caused you to leave Sri Lanka. [pause for translation] When did these start? APPLICANT : November masam. INTERPRETER : November masam [month]. APPLICANT : I was arrested by the army. [interpreter checks] They told me that I was being arrested on suspicion … [ INTERPRETER : What suspicion?] APPLICANT : Suspicion that I was supporting the … [ INTERPRETER : What?] APPLICANT : The LTTE. CASE-WORKER : Did the army offer any evidence for suspecting you? APPLICANT : No. CASE-WORKER :

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CASE-WORKER : Who arrested you? APPLICANT : Sri Lankan army CASE-WORKER : Do you know the names or the rank of any of the army men? APPLICANT : No. CASE-WORKER : How many men arrested you? APPLICANT : Seven army personnel, but this was during a round-up. CASE-WORKER : Who else was arrested during this round-up? APPLICANT : Two others. CASE-WORKER : Who were the two others arrested? APPLICANT : Two men … men from my village … my friends. One person’s

name is R––– … and V–––. And the other? said. R–––– is one and V–––– is the other. Ah sorry, yeah; R–––– … [long pause] At what time of day were you arrested? APPLICANT : Eight in the morning. CASE-WORKER : INTERPRETER : I CASE-WORKER :

This clearly illustrates the focus on the end of the story rather than its beginning. Not only that, the case-worker then makes an immediate move away from the experience of the applicant himself and the possible reasons for his arrest, to pose a series of circumstantial questions about an event whose date, place and context are as yet wholly unestablished. Even though the applicant knows some of the answers, they shed (at this stage of the interview, at least) no obvious light on the nature of his claim. The impression, especially when listening to the tape, is that the case-worker is struggling to think of questions to ask. Contrast this with the beginning of a statement-taking interview conducted by a solicitor. She had met her client briefly the week before and knew only that she was an Ashraf Somali woman, who had been in Ethiopia since 1997 before coming to the UK in 2008 with her five children. Her client had now been to a UKBA screening interview, and was far less worried about her own situation than about UKBA’s insistence that her 15 year old daughter was over 18. After some discussion on how to address this problem, and after securing her agreement to my presence, the interview itself began as follows: Okay, I want to get into the details of your asylum case now. I’m taking its history, so effectively I’m asking about your life history. I’m sure you’ll begin to feel that you’re being asked so many questions, but it’s important. As we discussed last time, the crucial thing is to establish your credibility – making the Home Office believe your account. And we talked last time about how detail is important, and consistency is important. And if you get to any point where you’re not comfortable with another person in the room, just say so. APPLICANT : [laughingly, glancing at me]: No I don’t have anything to hide from anyone! SOLICITOR:

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Where are your family from? You mean now, or originally? Originally. We are from B––– town [Interpreter spells it]. I should say that some of my questions are very basic. Ask me anything; I am ready. Whereabouts is B–––? B––– lies in the south of Somalia. What sort of district is it? I don’t know if you call them districts? It’s a main town, it’s one of the main towns in Somalia. B––– is the headquarters of other districts and villages around it; it’s in B region. SOLICITOR : Okay, and how is the town made up? What clans? APPLICANT: Well, the main clan in control of the area is called R, that’s the dominant clan. However there are other minorities who reside in B–––, such as Ashraf. SOLICITOR : Okay, and the R are part of which clan? APPLICANT : They are part of D and M. SOLICITOR : And do you know about D and M; what their greater clan is? APPLICANT : Well, there’s no clan above D and M, other than ‘Somali’. Under them is R, but above D and M there is no clan above them. SOLICITOR : APPLICANT : SOLICITOR : APPLICANT : SOLICITOR : APPLICANT : SOLICITOR : APPLICANT : SOLICITOR : APPLICANT :

The solicitor starts off with questions about clans because such information is vitally important in Somali claims.11 There followed a series of questions about the applicant’s parents, siblings, husband and children, and about her education. They are omitted here because UKBA deals with such matters (albeit in far less detail) in the screening process rather than at the substantive asylum interview. Okay, when did your problems first start? Well, it was the late 1990s when the fighting started in Somalia, particularly in the south, and we had to flee to the countryside on a number of occasions to avoid the problems. SOLICITOR : Do you remember, what year did the civil war actually start? APPLICANT : I would say that the war started in Somalia at the end of 1990, but the problems reached B––– at the beginning of 1991. People from Mogadishu fled to B––– and the problems started around that time. SOLICITOR : What do you remember of the problems in those early days? APPLICANT : Well, there became, you know, a battleground for various political organisations for various major clans. Each of them wanted to control B–––, which is known for its prosperity. SOLICITOR : What is that prosperity based on? APPLICANT: Well, it’s a farming area, it’s a strategic place as far as geography is concerned. The Somali economy depends on livestock, and that’s where the bulk of the livestock comes from. As there was no central government all the major clans were fighting for control. The R who were the SOLICITOR : APPLICANT :

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dominant clan in the region were not as well-armed as other major clans, so couldn’t defend themselves. SOLICITOR: When you say ‘well-armed major clans’ which are you referring to? APPLICANT : D and H. INTERPRETER : She also mentioned sub-clans from H and D, and said that this caused B––– to be named ‘the town of death’, which led to the UN intervention in 1992. APPLICANT : In the old days B––– was known as ‘the town of heaven’! [She comments to the interpreter on the irony of this change.] There are of course wide individual differences in interviewing style, as between different UKBA case-workers on one hand and different solicitors on the other.12 However, many of the differences between these two interviews are undoubtedly systemic. Above all, UKBA interviews display almost no narrative give-and-take and show instead a preponderance of short, grammatically simplistic questions and answers. Indeed, applicants are often interrupted if they attempt to answer at even moderate length; or the case-worker will simply ignore the answer, repeat the original question and instruct the applicant to answer it. The disjointed feel is exacerbated by achingly long pauses while the case-worker writes out the questions and answers by hand. By contrast, statement-taking has far more of a conversational style and a feeling of information being shared. Although there must still be pauses to allow for interpretation, there is a flow whereby one question leads to another, often motivated by the previous answer rather than determined in advance, and the applicant is granted far greater scope to develop more nuanced, complicated and therefore also lengthy responses. Almost inevitably, however, matters will arise in both contexts where the narrative seems unclear and perhaps even contradictory in light of earlier answers. The responses are again quite different. For legal representatives, the aim in subsequent statement-taking interviews is to explore, and hopefully resolve, matters which seemed unclear at earlier meetings. For example, at a later stage of that first interview with the same Somali lady, the following discussion had taken place: What can you tell me about your clan traditions? We are known for our knowledge. We teach Islam to other Somalis; we were respected for that before the war started. People would ask Ashraf to say prayers; they believe that god will accept them because of their relationship with the prophet. They will come to us and say: ‘You Sharif, come to us and thank god on our behalf’. SOLICITOR : Are there any particular ceremonies, or traditions, or practices associated with Ashraf? APPLICANT : [applicant debates with interpreter] We have two ceremonies as far as I am aware. One is Mowlid which is the commemoration of the prophet’s birth. The Ashraf come togather with other Somalis and read SOLICITOR : APPLICANT :

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the Koran throughout the night. There’s another one called Takal Mowlimad which is to commemorate the Ashraf elder, religious elder, who died, and that’s held in one particular village called Takal Mowlimad; the ceremony is named after the village itself. At their second interview, several weeks later, the solicitor returned to this topic: Okay, er, while I was writing up what we talked about last time, particularly about the two Ashraf festivals, I’m not sure I understood what I wrote down properly. One’s called Takal Mowlimad, is that right? APPLICANT : No, I confused you: one is the name of the festival and the other is the name of the place. INTERPRETER: Takal … mowlimad … This is where mowli is held … no, sorry, sorry, sorry, she is telling me that there are two main festivals. One is Mowli which is organized by the Ashraf, and Takal is the venue, so it is Takal mowlimad. APPLICANT : And the other festival is called Siyaara, which is where our grandfathers Omar and Abdullah were buried. I made a mistake; don’t put Abdullah and Omar, put Omar and Abdullah. SOLICITOR : Why is that; is it because Omar is your clan? APPLICANT : No, I never heard anyone say Abdullah and Omar, always Omar and Abdullah. I don’t know why. Maybe Omar is older than Abdullah. SOLICITOR : Okay, so let me make sure I understand. Is it Mowli that commemorates Mohamed’s birth? And that’s when the Ashraf read the Koran all night? And where does this happen? APPLICANT : Throughout the country, but Takal is the main place because many Ashraf live there. SOLICITOR : Is it a village or a town? APPLICANT : A village. SOLICITOR : Is that anywhere near B–––? APPLICANT : Near B–––. SOLICITOR : Have you been to that festival yourself? APPLICANT : When I was a kid. SOLICITOR : And then the name of the festival commemorating Omar and Abdullah, what’s the name of that? APPLICANT : It’s called Siyaara. SOLICITOR : Does that mean ‘festival’? APPLICANT : Yes. It happens once a year when we visit Takal Mowlimad, the place. The village is considered as a homeland for the Ashraf, that’s why the festival is held. SOLICITOR : Okay, great. SOLICITOR :

The final statement then read as follows: 16. We have some distinctive ceremonies and festivals such as Mowlid, which commemorates Mohamed’s birth when the Ashraf read the Koran through

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the night. The Ashraf lead this festival but other Somalis also celebrate it. It takes place in the month called Mowlid in the Ashraf and Benadiri Islamic calendar. This takes place throughout the country although the main festivities are in Takalmowlimad which is a village close to [B]. Takalmowlimad is considered the homeland of the Ashraf which is why the festivals are held there. I remember going there when I was child. Then there is the Siyaar or festival of our Ashraf Elders, Omar and Abdullah, which also takes place in Takalmowlimad. This might all seem somewhat esoteric, but the importance of clan membership in relation to the asylum claim means that UKBA, and ultimately the IJ, will be seeking to test whether an applicant can display the expected level of knowledge regarding the customs of his or her claimed clan.13 It was therefore extremely important for the solicitor to clarify her client’s statements about such matters. The format of the UKBA interview, as already described, and the fact that it is almost invariably completed in one day, gives case-workers little scope for exploring such matters in this interactive way. It is therefore not surprising that, as discussed in the following section, credibility issues are frequently raised in the RFRL which were never put to the applicant during the interview. This is perhaps most noticeable where torture and sexual violence are concerned. Possibly out of embarrassment, case-workers commonly skate over such matters, and even if they are raised by appellants themselves – which may not happen, as we saw – they are often not followed up. For example, in a recent interview a young single Tamil woman described how she had been arrested by the army while being held in one of the post-war internment camps in northern Sri Lanka. She was asked what happened next, and in the course of her reply she stated that she had been beaten, and added ‘I was tortured and raped for four days’. The case-worker asked two follow-up questions: Q: Who was it that tortured and raped you? A: Army officers; Sinhala army officers. Q: Was there any other mistreatment apart from beating? A: They pulled me by my hair, that’s all. As will become clear in a moment, the case-worker was not persuaded that either the torture or the rape had actually happened, yet these doubts were never put to the applicant and she was given no opportunity to supply further details that might (or, of course, might not) have made these events seem more plausible to her interviewing officer. In fact, there was no further discussion whatever of the rape or torture in the remainder of the interview. These different approaches expose the more fundamental difference that solicitors start from the presumption that their client has been persecuted and will tell the truth if given the opportunity, whereas UKBA case-workers, at least by repute, usually presume the exact opposite. Yet ironically, the solicitors’ strategy seems

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a far more effective means of interrogating apparent discrepancies, and could therefore also potentially be more effective in identifying real lacunae where these exist.

Refusal letters The most extensive evidence of UKBA’s aproach to credibility is provided by the RFRLs which set out the Secretary of State’s reasons for refusing to grant asylum. Under the New Asylum Model these are ideally written within a few days of the asylum interview, by the same case-worker. Consequently one can assume that many of the doubts expressed in the RFRL were in the case-worker’s mind during the interview itself and could have been put to the applicant at the time to seek clarification. This sometimes happens, but more often does not. For example, the RFRL received by the Tamil woman in the preceding example, written by the same case-worker and sent just 11 days later, acknowledged that the chronology of her account matched the objective evidence. However, it argued that her claimed dealings with the LTTE and her description of not being detained until one month after being identified (albeit that she was held in the internment camp for that whole period) were not credible. It then asserted: As it is not accepted that you were not [sic] arrested as you claim, coupled with your damaged credibility, it is not accepted that you were detained as you claim. As such, it is not accepted that you were raped in detention as you claim. In the alternative, even if it were accepted that you were raped, it is not accepted that it was in the circumstances you claim, in detention. It is also common for case-workers to dismiss narratives as incredible for reasons that have nothing at all to do with doubts about their content. Quite the reverse; the case-workers’ acceptance of the truth of at least part of that narrative becomes the basis for a rejection of credibility. This paradoxical outcome is written into the legislation itself. For example, Mrs S, a Sri Lankan Tamil woman in her thirties, explained in her asylum and screening interviews that she entered the UK using a nonSri Lankan passport in another name, supplied and retained by the agent who accompanied her; she then went to UKBA and claimed asylum the next day. Her RFRL states: 26. It is noted from your immigration history that you entered the UK on a passport that did not belong to you, and passed through immigration control by deception. It is considered that this behaviour falls under Section 8(2)(b) and (3)(b) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. It is considered that your credibility has been damaged as a result of this. [bold type in original; citations of interview question numbers omitted]

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The cited paragraphs in the Act read: 8. Claimant’s credibility (1) In determining whether to believe a statement made by or on behalf of a person who makes an asylum claim or a human rights claim, a deciding authority shall take account, as damaging the claimant’s credibility, of any behaviour to which this section applies. (2) This section applies to any behaviour by the claimant that the deciding authority thinks— […] (b) is designed or likely to mislead […] (3) Without prejudice to the generality of subsection (2) the following kinds of behaviour shall be treated as designed or likely to … mislead— […] (b) the production of a document which is not a valid passport as if it were … The RFRL then considers Mrs S’s account of her detention during which she claimed to have been tortured. It quotes several passages from the then-current COIS Report, and concludes: 35. In light of the objective information, it is accepted that arbitrary arrests, detentions and ‘disappearances’ do occur in Sri Lanka, however, in light of your credibility being damaged and the findings above, it follows that this part of your claim is not accepted. As this illustrates, the RFRL consistently repeats, as a reason for doubting or rejecting particular parts of Mrs S’s account, the claim that her credibility has been damaged. Yet the reason given for this damaged credibility has nothing whatever to do with Mrs S’s account of her persecution, which is acknowledged to be consistent with the objective evidence. Instead, it rests entirely on the means whereby Mrs S entered the UK. On that sole basis, Mrs S’s account of what happened to her in Sri Lanka is rejected virtually in its entirety. There is of course no logical basis for such reasoning. The means employed by Mrs S to get to the UK (for which, be it noted, there is no feasible legal avenue for someone in her position), have nothing whatever to do with the plausibility of the prior events in Sri Lanka which she describes. Yet although this RFRL is a particularly crude example of the genre, it cannot be seen merely as the product of an over-zealous case-worker eager to refuse a claim, because the non-sequitur is actually written into the 2004 Act.14 According to the UNHCR Handbook (1992: para 196), persons fleeing persecution cannot be expected to bring supporting documentation with them, and cases where they can fully corroborate their account will be ‘the exception rather than the rule’. It continues: Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant

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and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application [my italics]. There seem to be few, if any, examples of UKBA case-workers discharging this particular duty – although it must be pointed out that reasons are given only when claims are refused and not when they are accepted, so it is possible that some successful claims benefit from evidence obtained in this way. On the other hand, it is very common for UKBA case-workers to doubt credibility on the basis of matters which would have been extremely easy to verify. For example, one case in which I acted as an expert concerned a Tamil from eastern Sri Lanka who worked in a government office inside Trincomalee Fort, who was prevailed upon to help an LTTE member gain access to the area on several occasions. His claim was rejected in part because, according to the RFRL: ‘There is no evidence to support your claim that the [government office] would be based in an army camp’. However, it took me only 30 seconds and one Google search to confirm the applicant’s account in that respect; there is even a map of the fort on UNHCR’s Refworld website, showing the government offices in question (http://www.unhcr.org/refworld/ country,,,,LKA,,4918095a2,0.html; last accessed 16 April 2010).15

Cultural (mis)translation 16 For asylum claims to be fairly evaluated, applicants’ narratives must be placed within their cultural, socio-economic and historical contexts (UNHCR 1992: para 42). Country of origin information and expert evidence help explain such contexts, and appeal hearings also offer opportunities for culturally-specific differences in behaviour, terminology or understanding to be explored, especially when UKBA has cast doubts on the narrative’s credibility. Yet in practice further misunderstandings often arise at the hearing itself, raising additional questions about credibility (see Kalin 1986). These often result from the process of interpretation. This is not necessarily a question of faulty interpretation, however; all interpreters, however skilful, face the problem that utterances in the asylum applicant’s language, with particular ranges of meaning, cannot be mapped precisely onto the language of the court. The constraints imposed by legal processes further limit the interpreter’s ability to facilitate communication (Morris 1995: 26). The legal expectation is that court interpreters will give verbatim translations of whatever is said by each speaker (Berk-Seligson 2002: 65). There is ‘a pervasive myth within the judiciary’ that verbatim translations are also accurate ones (Mikkelson 2009), but in fact strictly verbatim translations produce ‘distorted communication’ (Colin and Morris 1996: 17). Some misunderstandings in court involve simple factual matters which can easily be resolved if the court has the necessary information, but if not, HOPOs will seize on any apparent inconsistencies in order to call credibility into question. To illustrate how easily a damaging confusion may arise, consider the most common

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inconsistencies in asylum stories – those concerning dates. Any discrepancies among dates given at the interview, in the statement, to the doctor, in crossexamination, and so on, are certain to be seized upon by the HOPO as damaging to the credibility of the account as a whole. The plausibility of such arguments varies according to the nature and importance of the event, but problems may arise from cultural differences too (cf Kalin 1986). For example, courts rarely take into account – and few lawyers are well enough informed to ask them to do so – the fact that many countries do not follow the Gregorian calendar. Discrepancies over dates may therefore arise from inaccurate mental conversions of dates into a calendar with which appellants are unfamiliar.17 Cultural and calendrical difficulties both seem to be at play in the following exchange from the appeal hearing of a Nepali man, which illustrates that problems may arise even with something so obvious as one’s date of birth:18 [W]hat is your birth date in the Nepali calendar? English throughout): Nepalese calendar? I cannot remember Nepalese calendar because I got used to using English calendar now. According to English calendar my date of birth is 26/9/74. ADJUDICATOR : What is your date of birth in Nepalese? APPELLANT : There is no such thing as birthday in Nepalese so I need to convert it into Nepalese calendar. ADJUDICATOR: Are you telling me you don’t know what your Nepalese birthday is? APPELLANT : I cannot remember just now. ADJUDICATOR : That’s fine if that’s what your answer is! APPELLANT : I have got used to English calendar just now. ADJUDICATOR : APPELLANT : (in

Variations in kin relationship terminology can also create problems. Not surprisingly, I most often became aware of such misunderstandings in Tamil cases where I could follow the dialogue to some extent. Problems often arose, for example, from the fact that everyday Tamil has no word for brother, but separate and quite different words for elder brother (annan) and younger brother (tampi). The problems this poses for interpretation are obvious and it was sometimes unclear in court whether, for example, appellants were discussing all their brothers or only their seniors or juniors. Similar ambiguities regarding different parts of the body may be crucial when comparing appellants’ evidence of how they were tortured with the placing of scars on their bodies, as reported by medical examiners. These examples all concern fairly straightforward kinds of cultural difference, which could have been fully explained had the requisite information been available. If explanations are not forthcoming, however, the damage done to an asylum applicant’s credibility may be considerable. Moreover, misunderstandings over subtler and less tangible cultural matters – such as norms and values – may be far harder to redress.

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Judicial assessments of credibility Credibility decisions in asylum appeals are matters only for the IJ, although the difficulties involved are recognized. As Lord Abernethy said in the Court of Session: Credibility is an issue to be handled with great care and with sensitivity to cultural differences and the very difficult position in which applicants for asylum escaping from persecution often find themselves. But our system of immigration control presupposes that the credibility of an applicant’s account has to be judged. Credibility is a question of fact which has been entrusted by Parliament to the adjudicator. […] Of course, an adjudicator must give his reasons for his assessment. A bare assertion that an applicant’s account is implausible is not enough. But an adjudicator is entitled to draw an inference of implausibility if it is based on the evidence he has heard and in coming to his conclusion he is entitled to draw on his common sense and his ability, as a practical and informed person, to identify what is or is not plausible (Esen v SSHD; citations omitted). The first appeal is especially crucial here, because unless the initial findings on credibility are clearly wrong later tribunals will not overturn them. IJs at first appeals do, after all, hear appellants giving oral evidence and undergoing crossexamination, whereas later hearings deal only with documents and legal arguments. The Inner House of the Court of Session stated in HA that: ‘This court may not interfere with the immigration judge’s decision on a matter of credibility simply because on the evidence it would, if it had been the fact-finder, have come to a different conclusion’. But on what basis do these first instance judges reach their decisions on credibility? Research of this kind faces particular problems here because the mental processes of judges are inaccessible to researchers, and largely ineffable even to the judges themselves.19 Cases decided by panels rather than single judges would offer considerably more scope for research, because of the need to make arguments explicit and to sway colleagues in debate, but legal restrictions preclude access. It has been argued that members of the Canadian Immigration and Refugee Board tend to perform credibility assessments by applying their own ‘assumptions of a universal Canadian cultural “logic”’ (Rousseau et al. 2002: 62). It is, however, questionable whether, or to what extent, it is justified to assume the existence of a single frame of reference in refugee hearings, shared by decision-maker and applicant (see also Clifford 1988: 329). This Canadian research revealed not only the effect of psychological trauma on the quality of applicants’ testimony, as might be expected on the basis of the research by Herlihy et al. (2002), but also the extent to which repeated exposure to narratives of torture and rape produced ‘massive’ avoidance reactions among

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decision-makers themselves. According to the researchers, board members displayed a high incidence of ‘emotional distress’, explicit prejudice, and cynicism (Rousseau et al. 2002: 64). The report concludes that such behaviour shows ‘a very strong emotional reaction, a lack of empathy, and an association of the victim with the aggressor, all symptoms of an inability to cope with the emotional stress created by the hearing’ (ibid: 59–60). It is common for professionals in stressful occupations to distance themselves from the traumas to which they are repeatedly exposed, through denial, avoidance or emotive reactions such as anger, lack of empathy or cynical humour (Katz 1981), but this becomes a particularly serious matter when so much depends upon judicial evaluations of credibility. The Canadian research team included a professor of psychiatry, a discipline in which I claim no expertise whatever; from my lay perspective, however, I can only say that I have never observed any such symptoms among British judges, although some are notoriously hostile and seem to allow few if any appeals. The most systematic and extensive research into how British IJs reach credibility decisions was carried out by Catriona Jarvis, herself now a Senior IJ. Adjudicators (as they were then termed) were asked to rank 27 factors pertaining to credibility in order of importance; some were factors common to all judicial assessments, such as consistency or a failure to answer questions, while others were more specific to asylum appeals, such as delayed disclosure of rape or torture (Jarvis 2000: 10). Replies suggested that many credibility decisions rested on ‘gut feelings’, the application of common sense or recourse to personal experience, but also indicated considerable variation in stated practice (ibid. 2000: 16). Some general conclusions can be drawn, however. For example, IJs acknowledge that appellants have less chance of winning if they do not attend, or attend without giving oral evidence.20 Although it is an error of law to make a negative credibility finding on these grounds, the fact that it happens is not surprising when one considers that there is usually no evidence (barring standard objective sources) except the appellant’s own. Some IJs draw adverse conclusions on credibility when applicants choose to use interpreters even though they speak adequate English, although this too is an error of law. Adverse credibility findings are also more likely when a claim is lodged only after that of a family member has been dismissed, although as Jarvis notes this may disadvantage wives who – adhering to cultural norms of dependence – initially allowed their claim to be subsumed under their husband’s (ibid: 21).21 Numerous studies show that demeanour is an unreliable guide to credibility in any area of law (ibid: 40, and sources therein). This is especially likely in asylum courts, given appellants’ diverse cultural backgrounds and varying expectations regarding interpersonal behaviour,22 yet by their own admission demeanour figures importantly in the assessments of many IJs (ibid: 23, 40). Like other legal decision-makers, IJs also admit that they are more inclined to believe appellants who are physically attractive, unless they seem to trade on their attractiveness in a manipulative way (ibid: 40–1).

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In my own interviews, IJs stressed that for them too the witness statement is crucial both before the hearing, in helping them get to grips with the huge bundles of evidence received, at best, the night before; and when writing their determinations, in initiating the reasoning process underlying their decision on credibility: When you come to write up your decision, you have to set out, what does the appellant say happened to him? [The witness statement is] the document I go to, to start my summary of his case. And then I move on to the objective material, what that says about the country concerned. And then I’m going to decide, whether to believe the person or not. And then I’m going to decide whether or not they’re a refugee. How do I do that? In terms of whether I believe them, I always bear in my mind the low standard of proof … but, that ‘reasonable degree of likelihood’ can be shattered if you have some huge implausibility or discrepancy. I take a lot of what people say at face value. I don’t go looking for minor discrepancies and then say, ‘oh, I don’t believe a word he’s said’, if the general case has the ring of truth. But I would also look at the objective material. AG : Do you equate plausibility with credibility? What’s the relationship between them? Are they different things? IJ A : Oh gosh! They are, yes, because someone can be credible, even though something isn’t plausible. AG : And when you are deciding whether you believe them or not, is that primarily on the basis of the witness statement, or is it primarily on the basis of the cross-examination? IJ A: It’s the two together. If on the surface the witness statement is a ‘plausible account’, if there’s a reasonable degree of likelihood that that would have happened, then actually the examination is quite important because I’ll be starting from the point of view that I have a plausible story here; let’s see whether they come up to proof. […] Or there may be one part of the story that you just think, well, depending on the answer to this question is whether I’m going to believe them or not. And maybe the whole thing unravels … IJ A :

Like Jarvis’s work, such comments reflect IJs’ self-assessment of their practices, not those practices themselves. On them there is even less information, although we do know that more than twice as many women as men (15 per cent as against 6.5 per cent) are judged credible by British IJs (Harvey 1998: 191; Jarvis 2000: 8). There are no detailed statistics on the social identities and decision-making proclivities of particular IJs, of the kind so dramatically produced for the United States, where Ramji-Nogales et al. found startling differences in asylum grant rates between different judges: … how about a situation in which one judge is 1820% more likely to grant an application for important relief than another judge in the same courthouse?

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Or where one U.S. Court of Appeals is 1148% more likely to rule in favor of a petitioner than another U.S. Court of Appeals considering similar cases? Welcome to the world of asylum law (2007–08: 301; footnotes omitted). The explanations for such discrepancies are not given in the statistical data themselves but must be hypothesized by the analysts. For example, they attribute the fact that success rates are three times higher when appellants are legally represented, to the importance of knowledge about asylum case law, court procedures and sources of objective evidence (ibid: 376); in part, clearly, this seems to reflect the positive impact of presenting cases in a rule-oriented fashion (see above). The data also show that judges are significantly more likely to grant refugee status to appellants who brought their spouses or small children with them to the US, than if they were single or had left their families behind. This, they suggest, could well be due partly to underlying assumptions about credible behaviour: would someone with genuine cause for fear be willing to ‘abandon’ their family? Not surprisingly, judges’ own backgrounds may significantly affect outcomes. It is perhaps unsurprising to find that asylum grant rates are lower than average for judges with prior careers in the Department of Homeland Security, but higher for those who were formerly immigration lawyers, NGO workers or law professors (ibid: 377). Gender is also a major factor – that is, the gender of the judge rather than that of the appellant. Grant rates for female judges are 44 per cent higher than for male judges (ibid).23 As one IJ bluntly put it in responding to Jarvis’s study, British asylum appeals are ‘a lottery’ in which the decision depends above all on which IJ happens to hear the appeal (2000: 19). This view is echoed and devastatingly documented for the United States by Ramji-Nogales et al., whose ‘central finding’ is as follows: Whether an asylum applicant is able to live safely in the United States or is deported to a country in which he claims to fear persecution is very seriously influenced by a spin of the wheel of chance; that is, by a clerk’s random assignment of an applicant’s case to one asylum officer rather than another, or one immigration judge rather than another (2007–08: 378). While there are no doubt many other contributory causes, it seems highly likely that differing approaches to credibility assessment help account for these gross disparities. Finally, however, to set this discussion into perspective, it is important to note that – although crucial starting points in almost every appeal – credibility assessments are not in themselves decisive because decisions are ultimately based upon the existence of future risk. The final question is, therefore, does the applicant have a ‘well-founded fear of persecution’? That is evaluated mainly on the basis of ‘objective evidence’ about the situation in their home country, so in practice the outcomes of most appeals depend equally strongly on IJs deciding which version of the objective evidence they prefer as regards risk on return. Indeed, as the veteran

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IJ Mr Care pointed out, such background evidence ‘is crucial to most findings of plausibility and frequently credibility as well’ (Kanagasundram); that is, both the initial decision on ‘external credibility’ and the subsequent decision regarding ‘risk on return’ are based in part upon an evaluation of the objective evidence regarding the appellant’s home country. Strange though it may sound, asylum applicants whose accounts are not deemed at all credible may still succeed in their claims if it is accepted that they will, nonetheless, face a real risk of persecution if returned; thus, ‘an applicant’s story may not be credible in the light of the objective circumstances but still the case is established’ (Nimets).24 As the determination in SW v SSHD went on to say, immediately after the passage quoted earlier: An assessment of credibility is not the ultimate focus of an Adjudicator’s determination. In an asylum or human rights case, that focus is the potential breach of either Convention which will usually involve an assessment of the nature and risk to an Appellant of his removal. An Appellant who is partly or even wholly disbelieved may still be at a real risk eg for his ethnicity. He may have lied to bolster a true case.

Notes 1 Anthony Good’s field work in the asylum courts in 2001–2002 was funded by ESRC Research Grant R000223352, and his later research on UK and French asylum procedures (with Dr Robert Gibb, University of Glasgow) was supported by AHRC Research Grant AH/E50874X/1 under its ‘Diasporas, Migration and Identities’ programme. Earlier versions of this chapter were presented at NUI Maynooth; the École des hautes Études en sciences sociales, Paris; the Department of Sociology, Anthropology & Applied Social Science, Glasgow; and the Department of Social Anthropology, Cambridge. Thanks to all those audiences; any remaining errors are the author’s. Thanks also to the editor of the Irish Journal of Anthropology, in whose pages parts of this chapter first appeared, for agreeing to the use of that material here. 2 The work of Jarvis (2000), now a senior immigration judge, is an exception. 3 Figure 5.1 shows the system prior to the changes in February 2010, as a result of the assimilation of immigration and asylum into the unified Tribunal Service (see http://www.tribunals.gov.uk/ImmigrationAsylum/index.htm; last accessed 15 April 2010). This change has no obvious implications for the arguments in this chapter, however. 4 Table 5.1 does not provide a direct comparison of initial Home Office decisions and tribunal decisions for the same cohort, because many appeal hearings in any given year involve asylum decisions made in previous years. 5 One potential source of such advice is the Appeal Court decision in Karanakaran; however, its starting premise – that an adjudicator, as IJs were then called, was a mere ‘administrative decision-maker’ whose role was not equivalent to that of ‘a judge in civil litigation’ – was highly unpalatable to adjudicators themselves, so it has been cited and followed less than might otherwise have been expected (Care 2004). 6 Various mitigating circumstances are recognized: ‘mental or emotional trauma, inarticulateness, fear, mistrust of authorities, feelings of shame, painful memories particularly those of a sexual nature’ (ibid).

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7 Under para 339L, the benefit of the doubt should be given when all of the following conditions are met: • • • • •

the person has made a genuine effort to substantiate his asylum claim ... all material factors at the person’s disposal have been submitted, and a satisfactory explanation regarding any lack of relevant material has been given the person’s statements are found to be coherent and plausible, and do not run counter to available specific and general information relevant to the person’s case the person has made an asylum claim ... at the earliest possible time, unless the person can demonstrate good reason for not having done so the general credibility of the applicant has been established.

8 A witness statement is ‘a written statement signed by a person which contains the evidence which that person would be allowed to give orally’ (Ministry of Justice 2009: section 32.4[1]). 9 McKinley (1997) describes such a restructuring for a Zimbabwean asylum applicant in the USA, fleeing from an abusive forced marriage. 10 This summarizes the more detailed discussion in Good (2007: 193–4). 11 Such information was generally important in Somali claims because it was established in UK case law prevailing at that time that clan membership could be supportive and sometimes even determinative of an asylum claim (KS v SSHD). 12 One might expect these differences to be particularly pronounced among solicitors, because those whom I interviewed told me that they had received little or no training in taking statements and had only rarely, if ever, observed colleagues doing so. 13 This presumes of course that the ‘objective country evidence’ available to UKBA is accurate. If that becomes a matter of dispute, expert evidence may be needed. 14 For that reason, IJs cannot reject such reasoning out of hand, although it is my impression that they rarely give much weight to it. 15 As it happens I was already familiar with the fort through having spent holidays in the tourist bungalow there; it is a 17th century Dutch structure, not an ‘army camp’, although parts of it were used as a military base during the conflict. However, the point here is that corroborative information was very readily available in the public domain. 16 The issues in this section are discussed more fully in Good (2007: 153–69). 17 Many lawyers and judges are aware that Iranians do not use the Gregorian calendar, and that this may cause problems, but this awareness does not seem to extend to appellants from other cultural backgrounds. 18 This appellant constantly caused problems by bypassing the interpreter and bursting out with answers in English to poorly-understood questions which had not yet been translated, despite repeated warnings from the adjudicator of the dangers of so doing. 19 The obvious analogy for an academic is the equally ineffable process of marking an essay. Like – one presumes – a judge, an academic intuits an assessment which must then be justified post facto by constructing written reasons, although that justification process itself will sometimes feed back to modify the initial conclusion. 20 Many judges see oral evidence as key to establishing credibility, and cannot see how ‘justice could be achieved by … making significant findings of credibility solely on the basis of written submissions’ ( Judge Bertha Wilson, in Federation of Canadian Sikh Societies). Others, including Sedley LJ (Yousaf & Jamil ), think that ‘it tends to be documentary material which demonstrates that the unconvincing witness has been telling the truth or the convincing one been deluded or lying’. 21 By contrast, most UKBA reasons for disbelieving applicants, such as a lack of identity documents or failure to claim asylum in transit, seem to cut little ice with most IJs, the one exception being when no claim is made until after deportation notices are

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issued ( Jarvis 2000: 17). Note that Jarvis’s work preceded the credibility provisions in the 2004 Act, which were discussed earlier. 22 ‘[ J ]udging demeanour across cultural divides is fraught with danger’ (‘B’ [DRC] ). 23 My discussion here focuses on judges because they make the crucial rulings on credibility. However, Ramji-Nogales et al. found large disparities in decision making among Department of Homeland Security officials (equivalent to UKBA’s case-owners) too; many officers are ‘outliers’ whose grant rates differ by 50 per cent or more from the norm in their own regional office, and who therefore ‘appear to have grant rates that reflect personal outlooks rather than an office consensus’ (2007–08: 372). 24 Imagine, for example, an Iranian whose story is wholly disbelieved, but whose drugrelated conviction overseas is deemed likely to bring him to the adverse attention of the authorities if returned.

Chapter 6

Honour killing? Or just plain homicide? Roger Ballard

In all known human societies, the deliberate killing of another human being is invariably viewed as an exceedingly serious offence. However, there are circumstances in which acts of homicide are regarded as legitimate, for example warfare and execution by properly constituted authorities of those found guilty of a criminal offence. However, a failure to negotiate an equitable settlement as between contending parties may lead to further homicidal retribution – or in other words to feud. Reactions to any given incident of homicide almost always vary depending on the precise context in which the incident takes place: hence, in virtually all contemporary jurisdictions a clear distinction is made between incidents of premeditated first degree murder, on the one hand, and a less serious offence of manslaughter on the other, applied in circumstances where the perpetrator acted negligently, accidentally, in self-defence, or as a result of provocation or because of an altered balance of mind at the time of the incident. It follows that whilst those convicted of murder attract the most serious punishment available – if not the death sentence, then something akin to life imprisonment – those found guilty of manslaughter invariably receive much shorter sentences. Wherever this distinction is in place it follows that the finders of fact in homicide trials (most usually a jury) are confronted with two complementary tasks when they retire to consider their verdict: first, to establish whether the person or persons in the dock were indeed the perpetrators, as the prosecution alleges; and, secondly, if a plea of guilty to manslaughter has been entered, to establish the precise character of the perpetrator’s motivation when the incident took place, in the light of the evidence which they have heard during the course of the trial.

The provision of expert evidence in contexts of ethno-religious plurality My own experience of being called to give expert evidence in the course of proceedings in which litigants of South Asian descent had become involved, and in which the impact of their distinctive cultural practices was potentially at stake. This not only broke new ground in legal terms, but also of anthropological practice in the UK; a result I had to find my own way around hitherto uncharted

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arena (Ballard 2006b, 2007a, 2007b). However, as I did so, it soon became apparent that some of the most significant, the most challenging and certainly the most illuminating cases in which I was called to give evidence were those which gave rise to charges of homicide. There were two reasons why this was so. In the first place there are few crimes in which motive is of such critical importance than in this context, given that it is the motive which differentiates first-degree murder from manslaughter. Hence, if the jury is to conduct its fact-finding role on an insightful basis, it must carefully seek to contextualise exactly what went on in the run-up to the incident in question. Secondly, the jury’s capacity to fulfil this role on an equitable basis is rendered all the more challenging if and when popular opinion is far from neutral with respect to religious, cultural and familial practices of the community from which the defendant is drawn. From this perspective members of Britain’s new minorities, and most especially South Asian Muslims, currently find themselves in a position of acute vulnerability. In the aftermath of the Rushdie Affair, 9/11, rows over Hijabs and so forth, sensationalist reporting in the press has popularised the view that because members of this section of the population remain heavily committed to the notions of honour and patriarchy. As a result they are held to display an alarmingly propensity to engage in ‘honour killings’, in which wives and daughters are brutally murdered by their husbands or fathers, simply because they have had the temerity to challenge patriarchal authority (Idriss and Abbas 2010, Welchman and Hossain 2005). These developments have attracted the attention of politically driven lawmakers. In the face of ever more loudly articulated arguments – no less from the feminist left than the nationalist right – that the consequences of unchallenged and unchallengeable patriarchy exemplifies just why it is that such harmful traditional practices should most definitely not be granted any kind of institutionalised recognition. Issues of kinship and marriage, and most especially the phenomenon of ‘honour killing’, has consequently emerged as the cutting edge of the current arguments about the need to regulate – and ultimately to criminalise – the most egregious dimensions of ethnic alterity (Korteweg and Yurdakul 2010). In parallel to developments in many other European jurisdictions, the UK has recently added an additional dimension to laws dealing with offences that are further aggravated by the presence of honour-related violence. Defendants found guilty of being so motivated can expect to receive an exemplary punishment. But just how can honour-related crimes be distinguished from others? In cases of homicide the basic fact that someone has been unlawfully killed is identical. If the incident takes place in a familial or domestic context, it invariably follows that the perpetrator(s) and the victim were intimately involved with one another prior to the event. However, what distinguishes an incident of honour-related violence from one which is not is neither the mode of killing nor the personal and familial context in which the assault took place. Rather it is the perpetrator’s motivations and state of mind at the moment the incident occurred. Hence, in the course of determining whether or not an ‘honour killing’ took place, the court, and the jury

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need to apply the same litmus test as in the case of differentiating manslaughter from murder. But whilst a finding that the defendant was provoked, and/or was affected by ‘an alteration of mind’, points in the direction of the lesser offence of manslaughter rather than murder, a finding that the violence was motivated by considerations of honour – as currently understood – serves to point in precisely the opposite direction.

What is honour killing? Honour killing is by definition a cultural crime, in the sense that it can only be committed by a person for whom issues of personal and familial honour are of pressing concern. Such a phenomenon became obsolete in north western Europe a long time ago, and hence the only circumstances where a suspicion that an honour-related crime is likely to arise are within the context of a community in which such ideas still prevail, for example amongst South Asian, Middle Eastern and North African – and more often than not of Muslim – extraction. However, just when should cases of homicide that occurred in such contexts be classed as ‘honour killings’? A spectrum of possibilities is available. One of the most commonly deployed options is one positing an inescapable link between honour and patriarchy where women are invariably the victims of honour killing. A classic – and much cited – articulation of this position was produced some years ago by Human Rights Watch: Honor crimes are acts of violence, usually murder, committed by male family members against female family members, who are held to have brought dishonour upon the family. A woman can be targeted by (individuals within) her family for a variety of reasons, including: refusing to enter into an arranged marriage, being the victim of a sexual assault, seeking a divorce – even from an abusive husband – or (allegedly) committing adultery. The mere perception that a woman has behaved in a way that ‘dishonours’ her family is sufficient to trigger an attack on her life. (Human Rights Watch 2001) This definition stands in sharp distinction to the observations of anthropologists who have first-hand observations of these processes in migrants’ countries of origin. For example, on the basis of fieldwork amongst the Pathans of Pakistan’s North West Frontier Province – often identified as being amongst the globe’s strictest practitioners of gender segregation – Barth identifies understandings of honour itself, as well as those who lose their lives in honour-related feuds, as an overwhelmingly male phenomenon: Pathans greatly admire a man who possesses a reputation for willingness to defend his honour and interests, for violence and impetuousness, for bravery

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and valour … Thus feuds in defence of honour become demonstrations of the relative abilities and powers of opponents; he who wins in such feuds and defends his honour thereby demonstrates his capacity as a powerful chief and competent leader, little wonder that people admire him and that followers flock to his men’s house; his reputation serves as protection to his followers as well as to himself. Little wonder, also, that leaders are driven to adopt this pattern in their relations with their rivals. (Barth 1959: 85) Gender is also an issue in such contexts. Women have an obligation to protect their own modesty, whilst male honour is critically dependent on their capacity to protect and defend the modesty of the women for whom they are responsible. It follows that the most effective means of humiliating a rival is by interfering with the modesty of his wife, sisters and daughters. However, when such actions generate a pattern of tit-for-tat rivalry, as is regularly the case, it is males on the opposing side, rather than their womenfolk, who are most likely to be the ultimate targets, since this is held to restore the honour of those who would otherwise have been reduced to a condition of humiliation. But on the other side of the spectrum lies the belief that there is nothing honourable about killings, such that they should simply be regarded a particularly obnoxious form of murder. As Lord Justice Wall recently put it: The notion of honour killing is an affront to English law. They are simply acts of sordid criminal behaviour and have nothing to do with any concept of honour known to English law. Arson, domestic violence and potential revenge likely to result in abduction or death are criminal acts, which will be treated as such. (AM and Local Authority v The Children’s Guardian B-M (Children)) Whilst the judge’s remarks were widely cited in the press, not least because they gave further traction to the popular slogan ‘there is no honour in honour killing’, it is noteworthy that he did not dismiss the concept of honour per se. Instead, he condemns a particular notion of honour that gives rise to ‘acts of sordid criminal behaviour, which have nothing to do with any concept of honour known to English law’. Closely examined, the sub-text of this formulation is clear. Behaviour arising in response to English notions of honour is respectable and legitimate in the eyes of English law; but in no way does that apply to behaviour arising in response to South Asian notions of honour (U. izzat). Hence, ‘honourrelated’ violence is quite specifically a cultural crime. It is one that can only be committed by members of a community whose notions of honour and its consequences differ substantially from contemporary English understandings of that same notion. It follows that whether they are explicitly aware of it or not, when detectives, prosecutors, defence lawyers, judges, juries and journalists find themselves dealing

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with incidents of homicide within South Asian families, they invariably find themselves navigating through exceptionally tricky waters. How well do they cope?

Empirical observation of South Asian homicide trials in the UK My own awareness of the issues in this field arises as a result of being called to give expert evidence in over 30 homicide trials in which the defendants were of South Asian descent. In such circumstances my formal role is to assist the court, and more specifically the finders of fact (in this case the jury), by presenting my expert opinions about those aspects of the evidence which would otherwise be beyond the understanding of an ‘average person’. But although the expert’s duty is quite explicitly to the court, in the adversarial context experts are invariably instructed by one or the other of the contending parties. In homicide cases my instructions have overwhelmingly come from the defence, and only occasionally from the prosecution. However, the contents of my instructions are invariably imprecise, and often virtually unanswerable from an anthropological perspective. Hence, for example, I am frequently asked to comment on ‘the cultural background’ of the litigants, and to provide answers to some more specific questions which counsel have carefully framed with their own strategic objectives in mind. As a result I routinely look way beyond my instructions as I work my way through the documents with which I have been provided. During the course of the investigation, I rarely interview the defendant him or herself, who is normally in custody. In a homicide case, the documents invariably include witness statements taken from all those remotely involved with the perpetrator and the victim, which are invariably immensely illuminating in ethnographic terms, since they serve to highlight the varied experiences and perspectives of everyone concerned. My task is to begin to untangle what went wrong and, above all, why. My reports regularly begin with an exploration of the internal dynamics of the extended family within which the incident in question took place, including the construction of a detailed genealogy setting out exactly how everyone is related to everyone else. After contextualising everything, I move on to consider the dynamics of the relationship between the perpetrator (and sometimes the alleged perpetrator) and the victim, the context within which the act of homicide occurred and the extent to which all these factors might have influenced the perpetrator’s motives. However, in doing so, great care must be taken to avoid trespassing on the jury’s role as finders of fact, since expert reports can be declared inadmissible by the judge if he concludes that the expert has crossed this limit. As I soon discovered, there are also yet more hurdles that one’s report has to surmount. Although I prepare my reports to assist the randomly selected jury to gain a more accurate appreciation of matters likely to be beyond their collective knowledge, the jury never sees my report, since it is expected to rely only on the verbal testimony that its members have heard in the course of the trial. In these circumstances there are only two ways by which the jury is allowed to gain

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access to the arguments and conclusions I have developed. Either it is when I am asked specific questions during the course of examination and cross-examination in the witness box – which is rare – or when portions of my report which have been ‘agreed’ with counsel for the other side, are read out loud. Both options offer a poor mode of communication with the audience, especially if one is trying to advance complex arguments in a nuanced fashion. However, this is by no means the only way in which expert evidence can have an impact on the conduct of the trial. In the first place, counsel may choose to utilise the arguments presented in my report when devising questions for those appearing in the witness box, and in the process of preparing their closing speeches. Furthermore, counsel may or may not disclose the report to other parties to the proceedings, and hence to the judge, if and when they find it strategically advantageous to do so. Hence, the only circumstances where finder of fact has direct access to the arguments and analyses set out in my report is when that role is fulfilled by the judge himself. This routinely occurs in civil proceedings, but never in homicide trials. From my point of view as an expert, the difference is enormous. Civil proceedings open the way for direct communication between myself and my audience, with the result that judges frequently ask me supplementary questions once counsel have finished their examination of my evidence. In criminal trials the jury cannot do so, whilst the judge’s capacity to intervene is sharply constrained as a result of his role as a referee; and since counsel operates on a tactical basis throughout the proceedings, they effectively become mouthpieces for the expert(s) whom they have chosen. The tactical priorities of counsel strictly limit one’s capacity of alerting the court to the unfamiliar conceptual perspectives in terms of which witnesses are operating. So, if counsel is unimpressed and/or unconvinced by the arguments I have advanced in my report, and/or if counsel is uncertain about his or her capacity to persuade the jury (and the judge) of the validity of my anthropologically grounded perspective. It follows that if and when at I find myself in the witness box, counsel can readily examine me in such a way that I find myself precluded from addressing issues which I consider to be matters of pressing concern. In these circumstances one begins to feel that one’s role has been reduced to that of a ventriloquist’s dummy.

When dispute resolution fails to supply a remedy The case studies I have set out below serve to illustrate some of the complex dynamics of the South Asian familial circumstances in which incidents of homicide can take place. None of the cases summarised here should be regarded as ‘typical’. Noses out of joint: a tale of two Biraderis This case was exceptional in that I was instructed by the police, who only had circumstantial evidence suggesting that those responsible for killing a young Pakistani

=

Parveen Yaseen Akhtar

=

==

=

Maneeza

Asmat Bi

=

Nazreen Kulsoom

Abdul = Qayyum

THE STRUCTURE OF ZAFAR IQBAL’S IMMEDIATE BIRADERI

=

Shamim Akhtar

Tariq = Tahir Mehmood Salma proposed marriage

==

=

Zafar Iqbal

Naseem

THE STRUCTURE OF THE ‘ARIF’ BIRADERI

M. Jehangir

Shaheen Akhtar

Nasreen M. Iqbal Akhtar

Saeed Arshad = Mehmood Yasmeen

Bashir

Jamila

M. Sadiq

Yasmeen

=

Majid == Nizam == Gulzar Hussain Hussain

Farzand Bi

Khadam Hussain

Figure 6.1 Arif’s and Zafar Iqbal’s biraderi.

M. Arshad

M. Saber

=

Rizwana

M Arif

Hafyat = Begum Abdul Karim

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male whose battered body was retrieved one morning from a supermarket car park, were close relatives of a young Pakistani woman whom he had recently married in Gretna Green. However, no firmly substantiated evidence with respect to the suspects’ motivation was found. I agreed to prepare a report, whereupon I was provided with copies of all the witness evidence that the police had managed to gather in the course of their investigation. As is my routine practice, I prepared a genealogy showing the patterns of kinship relations within and between the extended families to which all those associated with the incident belonged. Both biraderis (descent groups) turned out to originate from the Azad Kashmir region of Pakistan,1 who were now living in the UK in the same neighbourhood in a town about 20 miles distant from the city where Zafar Iqbal (the deceased) and his partner Rizwana had relocated after their runaway marriage. There were no prior links of kinship or marriage between the two biraderis before settling in the UK. As such, each biraderi formed a self-contained arena of social interaction, which was reinforced by cousin marriage – a routine form of social organisation in this context. It is also worth noting that cousin marriage has gained further strategic importance as a result of the UK’s restrictive immigration laws: the only way in which some Pakistani nationals could legitimately gain access to Britain was (and is) by marriage to a UK citizen. Zafar Iqbal had recently arrived in the UK as a result of an arranged marriage with Kulsoom, his father’s brother’s granddaughter. However, the couple did not get on well together because Kulsoom turned out to have a boyfriend (also of Kashmiri descent) of her own, and soon Zafar also established an equally surreptitious relationship with another Kashmiri girl in the neighbourhood. This was Rizwana, who was shortly to marry the son of her father’s sister-in-law, Nasreen, both of whom were living in Pakistan. It followed that as these young people had begun to set their own agendas in the selection of marital partners, they had also begun seriously to interfere with the long-term strategic initiatives which their parents were pursuing within their respective biraderis. Nasreen, who turned out to be the power behind the throne in this biraderi, somehow got wind of the fact that her youngest son’s bride-to-be Rizwana was having an affair with Zafar. As a result she demanded that Arif, Rizwana’s father (who was also her brother-in-law) should take steps to bring their relationship to an end. Arif promptly grounded his eldest daughter, although Zafar and Rizwana remained in contact with one another via their mobiles. As soon as an opportunity arose, Rizwana ran away with Zafar to Gretna Green to get married. However, prior to their elopement, tensions had begun to rise between the two biraderis, most especially between their female members. Given that her youngest son Tahir’s future was at stake if Rizwana failed to fulfil her father’s promise that she would in due course marry Tahir, Nasreen went to visit Zafar’s eldest sister Parveen Akhtar, who lived nearby, to demand that she also take active steps to

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ensure that Zafar went back to his wife and stopped leading Rizwana astray. She had little success. After Rizwana absconded, a serious row ensued between the two women, into which other women from the biraderi were rapidly drawn. Angered by Nasreen’s suggestions that everything was Zafar’s fault, Parveen countered by arguing that the fault lay on the other side, that Rizwana had not been brought up properly, and in consequence was acting like a slut. A feud was developing between the two biraderis, and as this occurred dhane¯ (taunts) began to fly in all directions. Aware of these developments, Zafar and Rizwana decided that it would be most inadvisable to return to their home town. Therefore, they rented a flat in the neighbouring city. Some weeks later Zafar received a call on his mobile late at night, whereupon he told Rizwana (who had by then retired to bed) that he was going out to meet some friends. The following morning Zafar’s corpse was discovered in a nearby supermarket car park. He had died of multiple stab wounds. However, examination of the body revealed no forensic evidence on the basis of which positive identification of his assailants might be made. Nevertheless, the police had their suspicions and in due course Iqbal, Tariq and Jehangir, Rizwana’s family members, were arrested and charged with murder. All three exercised their right to remain silent and the only evidence on which the police could rely to link the three defendants to Zafar’s murder was a report by the mobile phone company, whose records showed that the phones registered in their names were present in the city where Rizwana and Zafar had taken refuge on the appropriate date. Having been instructed to prepare a report by the detective sergeant in charge of the investigation (who, uniquely in my experience to date, was himself of Pakistani descent), my examination of the evidence illuminating the dynamics of interpersonal relationships amongst those involved led me to conclude that Rizwana’s elopement with Zafar had precipitated a bitter clash between their respective biraderis, and that in my opinion it was consequently entirely plausible to suggest that in the light of Zafar’s ‘abduction’ of Rizwana and the abuse that Nasreen had let loose on Zafar’s kinsfolk when they sought to settle the matter amicably, members of the Arif biraderi had taken the view that the only way in which they could restore the damage to their izzat was to dispatch the defendants to eliminate him. When the case came to trial (by which time the defendants had seen my report) all three entered pleas of guilty. Since my report had been accepted on all sides I was not called to give evidence in person. However, I subsequently learned that whilst counsel for the prosecution relied on its contents in outlining the foundations of his case to the judge, those acting for the defendants also used it as a basis for articulating pleas of mitigation. In due course all three defendants were found guilty of murder, and received sentences of life imprisonment. In my view this case was a classic example of revenge, precipitated by an effort to teach Zafar and his biraderi a fatal lesson.

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A cuckold unable to contain himself in the face of his wife’s taunts In this case, where a Sikh husband stabbed his estranged wife to death, I was instructed by the defence rather than the prosecution. The defendant did not deny that he was responsible for killing his wife; however, he entered a plea of not guilty of murder but guilty of manslaughter. I consequently had the added advantage of being able to consider the contents of his proof of evidence, as well as numerous witness statements taken by the police. According to his account, Harpal Singh had just completed an engineering course from Phagwara Polytechnic, a prestigious institution in the Punjab (India), and had obtained a much-prized post in the Public Works Department when his parents received an offer of marriage from a family based in the UK.2 The girl in question, Balbir Kaur, belonged to a respectable Sikh family and Harpal and his family jumped at the opportunity, which would allow him to move to the UK. This relocation turned out to be disappointing for him because, despite his qualifications, he was only able to obtain employment as a semi-skilled labourer. However, he worked long hours of overtime to raise his family and soon became an active and respected member of the local Sikh temple. His wife Balbir also worked to support the family. However, she became romantically involved with a co-worker at the Post Office, Razak, who was a married Muslim. The couple engaged in extra-marital sex at her house whilst Harpal was at work and the children were at school. Although Harpal remained blind to all this, the children soon became aware of their mother’s affair. Harpal only discovered about his wife’s affair when he chanced to overhear a telephone conversation between his wife and her lover. A huge row ensued, as a result of which Balbir walked out to live with her Muslim lover. Harpal felt that his honour had been completely ruined and fell into a severe depression. He refused to go out, even (and in some senses especially) to the temple. The children grew increasingly concerned about their parents who were far from happy. So, they managed to engineer a family meeting with the family elders in which Balbir and Harpal agreed to make up. It was also agreed that Balbir had been led astray by Razak, her lover, because of an amulet that he had given her. The couple had to make a pilgrimage to a series of shrines in the Punjab to overcome the remaining influence of the amulet.3 After the pilgrimage, Harpal and Balbir were ready to start afresh, but soon after, when Harpal suggested to Balbir that intimacy between them should resume (as they had been sleeping in different rooms), she pushed him away. A rapidly escalating argument broke out during the course of which Balbir articulated an extremely insulting stream of dhane¯ (taunts) mocking Harpal’s manhood, his sexual capacity and hence his izzat. Harpal lost control of his senses and grabbed a knife with which he stabbed Balbir, and then tried to kill himself as well. The jury found Harpal guilty of manslaughter, largely on the basis of evidence from a psychiatrist who expressed the opinion that he was mentally disturbed

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when the incident took place. As far as I am aware counsel for the defence made little if any use of my arcane ‘cultural’ analysis. A frustrated husband loses his cool Sufia Ali was born in Britain to parents of Sylheti origin. She left school at 16 and found employment in a local school as a classroom assistant. Shortly afterwards when her sick mother passed away, her father decided to return to Bangladesh to acquire a new wife to help him bring up his large family. Also, since his daughter had reached a marriageable age, he wanted to find a husband for her as well. Sufia was not in a position to object. As her father was well aware, his daughter would be regarded as a real catch in the Sylheti marriage market, as her spouse would be able to gain entry into the UK. Sufia’s father’s criterion for her spouse was largely financial as his demands included the signing over half of the groom’s family land in ‘dowry’. Mudassir not only matched this criterion but he was also an attractive catch in many other ways. Having gained an MA from Dhaka University, he had found a job in the Civil Service, where he had excellent prospects of advancement. However, like the vast majority of young men in Bangladesh, he saw this match as a chance to improve his long-term prospects further. Although he was delighted at the prospect of going to the UK, he was also well aware of the financial transaction that had underpinned his marriage and the consequent family expectations. The couple were quickly married, but before the marriage could be consummated, Sufia and her father flew back to England, whilst Mudassir applied for an entry certificate. His application was approved almost two years later and when he finally arrived in the UK his wife gave him the cold shoulder and refused to share a bed with him. He then discovered that his wife was not a teacher but only an unqualified classroom assistant with no intellectual interests whatsoever and also that she was rumoured to have had several boyfriends prior to his arrival in the UK. However, because of his family’s investment in his rishta, he could not complain or protest. He had no alternative but to make the most of it. Initially, he took a job as a waiter in a Bengali-owned ‘Indian’ restaurant, which was in principle beneath him, but he soon began to move up the ladder. He was recruited to a higher paying job with much better prospects in a substantial Bengali food wholesale business. However, Sufia was unimpressed by her husband’s sophisticated airs and graces. Instead, she took every opportunity to abuse and humiliate him, in an effort to pressurise him to abandon the marriage. One day the couple were preparing a meal: Mudassir was frying the onions and garlic, whilst Sufia was cutting up a chicken. When he let the onions burn, Sufia let loose a stream of humiliating abuse at her husband. Mudassir could contain himself no longer. He grabbed the knife with which Sufia was cutting up the chicken and began to stab her with it, causing injuries that proved to be fatal. The report I prepared for the defence explored the background of the marriage and suggested that Mudassir had behaved in that way because he was

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provoked by Sufia as she tried to extricate herself from an ill-arranged marriage, which her husband could not afford to abandon. However, counsel took the view that my report was unlikely to prove influential, given the unusual and indeed unprecedented nature of my anthropological perspective. Hence my report was not used, so when the case came to trial she preferred to rely on an alternative source of expertise, namely a psychiatrist’s report which suggested that, having grown up in Bangladesh, Mudassir had been suffering from ‘culture conflict’ since his arrival in Britain, as a result of which he had become mentally disturbed. The jury was unimpressed and Mudassir was found guilty of murder and sentenced to life imprisonment. Lies, all lies! Shangara Singh was born and brought up in a moderately prosperous family of Jat Sikh farmers in the Punjab. He did reasonably well at school, and enrolled in a largely Punjabi-language degree course at a local college. During his second year his family was approached by members of another Sikh family who had emigrated to the UK and were looking for a suitable rishta for their daughter Harpinder, born and bred in the UK. A meeting between the two families was arranged, at which both Shangara and Harpinder signalled their approval of the match. Preparations for the wedding began immediately and within a few weeks they were married. However, when Shangara applied for a visa to join his wife in the UK, it was refused. Still, Shangara entered the UK clandestinely and married his wife again in a civil ceremony before returning to India to lodge a further application to join his wife in the UK. Harpinder returned to India with him, so she was able to accompany her husband to the High Commission in Delhi when he was called for his interview. The visa was issued immediately. However, moving to the UK proved to be a tough experience for Shangara as his Punjabi qualifications were not recognised and his English was poor. The only job he could find was as a labourer/machine operator, and even that job evaporated when the recession set in at the end of the 1980s. He remained unemployed for two years before he could find another job. Nevertheless, Harpinder was able to step into the breach by taking up a job at the Post Office while Shangara filled his time by involving himself even more actively in the Gurudwara. On the face of things, the family had become established and respectable members of the local Sikh community. However, whilst things seemed to be going reasonably well for Shangara, his wife had fallen in love with another Sikh who was a Ramgarhia (carpenter) rather than a Jat (peasant-farmer) by caste. Whilst the couple did their best to conceal their relationship, news of the affair soon spread through the local Sikh community, but Shangara remained oblivious to what was going on. When Shangara finally discovered what his wife had been up to, he felt deeply humiliated. So did Harpinder when Shangara confronted her, and she

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took an overdose of drugs. When she recovered, Shangara suggested that a family meeting should be called in an effort to resolve their disputes. The meeting was held at Harpinder’s parents’ house and attended by her whole family, who were equally ashamed at her behaviour. It was agreed that the only possible explanation for her aberrant behaviour was that she had been bewitched by her lover, and, since Shangara was a dutiful husband, the couple should reconcile. Although Harpinder wanted a divorce, in the circumstances she had little alternative but to assent. When Shangara returned home a few days later, the house was empty: Harpinder and the children had disappeared. Her family did not know where she was either. Shangara felt extremely depressed and took to drinking. Some weeks later when the family received a call from the Police Domestic Violence Unit, Shangara decided to visit the woman police constable concerned. All he was told was that Harpinder was safe and well. It soon became clear that Harpinder and the children were still living nearby; on several occasions she was seen sitting in her lover’s car. Before long she openly began to attend social events within the community in the company of her lover. Shangara’s feelings of humiliation deepened yet further, especially when ‘well-wishers’ began to ring him up to ask pointed questions about how he and his wife were getting on. Despite the dhane¯, a modus vivendi gradually emerged. Shangara began to accept that his wife had dumped him and that dissolution of their marriage was inevitable. He also began to see his children again. Then it all fell apart. As he later described in his statement to the police: Yesterday morning I was at my sister’s place, where I had stayed overnight. Both my children were there. I got up early and went to my house to clean it, burn some incense, and say my prayers. As we doing so my nephew arrived, and we all went to do some shopping in the City Centre. After we got back we waited for my missus to come back to collect the daughter and her car after she has finished work. My son was playing outside. He came in and told me that mum had arrived. Rani had dropped Harpinder off, so she could pick up our daughter. Since some letters had arrived in the post, I suggested that we should go back home to pick them up; Harpinder agreed, because she wanted to retrieve a couple of her suits that she had left behind. Whilst we were driving over, I took the opportunity to try to persuade her to agree to come back, or at least to refrain from appearing with other men in public until things had been properly sorted out between us. But she didn’t say anything in response. I opened the front door and she followed me into the house. We sat in the front room. As she opened her letters, I took the opportunity to beg her to refrain from keeping company with other men until we had sorted out our future. But all she told me was that as far as she was concerned, she could do as she liked. I begged her to mend her ways, at least for her parents’ honour,

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and also to think about the future of our children. She wasn’t interested. She only said that she wanted her own house. I told her I was prepared to buy her another house, but only on condition that just she and the kids would stay there. Having told me that anybody she wished would have to be able to stay there, she went upstairs to fetch the suits. I sat downstairs feeling confused. Harpinder had never spoken to me like that before – posing awkward questions, and continually confronting and challenging me. All sorts of thoughts were running through my head. What had become of us? How could she have become so inconsiderate and distant towards me? What could I do? Everything has happened right before me: the affair, the sex in my own house, and in my own bed. I had not done anything wrong. Was I a man, or what? She had been living at another man’s house for three months, but what could I do? Then she called me upstairs. She was in the back bedroom, and wanted to know if the suits she had chosen to take away were OK. As I looked at the suits, she repeated her demands for a house. I told her: ‘The more passive and soft I am towards you, the more cruelly and inconsiderately you have treated me.’ I asked her: ‘What will become of the children, and most especially Amrita (who was living with her)? How will she respond to all these influences as she grows up?’ Harpinder told me that she couldn’t care less, and that I could always go to court if I wanted the children back. Then I told her: ‘If you won’t come back for me, please come back for the children’s sake.’ She said: ‘I’m not coming back to you. Who are you to tell me what to do?’ Then she told me how much she had enjoyed sex with that man. She was trying to provoke me, she was trying to antagonise me whilst I was saying: ‘I beg you, I implore you to come back home.’ I was holding out my hands, telling her that there was nobody else for me in this country without her. She pushed me away, and I pushed her back, trying to calm her down. Then she hit me; there’s a mark here [indicating his bottom lip]. Then I became extremely angry and lost my senses. I hit her a few times—I don’t know where—but it was just with my hands. I was so angry that she had said these things about me and my children. It all came together: all those telltale slips of paper with writing on them. I had never hit her before, or got angry like I was this time. But she knew she had crossed the line by saying things that she shouldn’t have said. Then Harpinder picked up a piece of rope from the floor and held it out in front of her, taunting me by telling me that if I really had any guts I would use it to put my threats into practice; then she taunted me by telling me that I hadn’t the balls to do it. At this point I just blew up. All I can remember is her putting the rope around her neck. She thought I was going to back off. She wrapped the rope around her neck several times and held out the two ends of the rope towards me, saying: ‘Here you are, kill me, kill me if you’ve got the guts!’ I don’t know what happened then, she was

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antagonising me, she was provoking me, I don’t know what happened. After that she fell on the floor. I couldn’t think what to do. We don’t have a phone in the house, but she carries a mobile phone. I took it out to seek help, and made calls to my sister’s house and my in-laws’ house. After that the police came. Although the police were deeply sceptical as to the accuracy of Shangara’s assertions, he consistently stuck to the story in successive interviews. He readily admitted that Harpinder’s death was caused when he pulled the ends of the rope, although he could not actually remember doing so. He insisted that it was she who had wound the rope round her neck in the first place. I received instructions from Shangara’s solicitors to prepare an expert report and carefully examine what he told the police in successive interviews, as well as the proof of evidence that his solicitor had prepared on his behalf. Having done so I came to the conclusion – in the light of my experience of the dynamics of interpersonal relationships in Punjabi contexts – that Shangara’s account of the escalating series of confrontations between himself and his wife, which eventually led Harpinder to hurl ever more humiliating dhane¯ in his direction, were in my opinion entirely plausible. It follows that Shangara would have sound grounds for entering a plea of not guilty to murder, but guilty of manslaughter in the face of humiliating provocation. However, that was not the way in which the case was argued in court. Shangara’s point that his wife had used a rope as a means of subjecting him to taunts was dismissed by his QC as silly and irrelevant, as he believed no English jury would ever accept such tittle-tattle. Hence, Shangara had to drop that part of his account. Shangara had little alternative but to concur. He altered his proof of evidence, which was in due course disclosed to the prosecution. After I sent my expert report to his solicitor I was informed that Shangara had changed his position and that I should consequently excise all references to taunts from my report. The defence was going to rely on a more straightforward argument that Shangara had been psychologically disturbed as a result of his wife’s adultery. Nevertheless, I was asked to attend the court proceedings, where I witnessed Shangara being destroyed in the witness box by the prosecuting QC. He relied on Shangara’s initial statement to the police. Why, he asked, had Shangara invented the unbelievable story about his wife winding the rope round her own neck? And if he had lied about that – having taken care to extract an admission from Shangara that his story had indeed all been a lie – he promptly went on to ask why a selfconfessed liar should expect the jury to believe anything else he might say about his relationship with his wife? The jury dismissed Shangara’s plea of manslaughter and found him guilty of murder.

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A humiliated wife reaps vengeance Mussarat Siddiqui was arrested for murder, having poured petrol on her husband’s genitals and set him on fire. I was instructed by the defence to prepare a report on the underlying cultural and familial issues. As usual, the tensions between Mussarat and her husband Saleem turned out to be as complex as they were longstanding. Mussarat was born and brought up in a moderately prosperous Syed family in Karachi, and was only 16 when she married Saleem. The couple met when Saleem was attending his cousin Tariq’s marriage to Zaheeda, where he fell in love at first sight with the bride’s sister, Mussarat. As Mussarat was the youngest in the family, there was no great urgency about marrying her off. Nevertheless, Saleem persisted in his suit with great vigour. Eventually Mussarat’s family agreed to the match, although not without considerable reservations: their daughter was still very young and their acquaintance/relation with Saleem’s family was relatively slight. In addition, as non-Syeds, Saleem’s family was of significantly lower status. However, on the other hand, such a match was strategically attractive because of Saleem’s excellent career prospects as a merchant navy officer and his family’s substantial transnational connections. Saleem’s father had already established himself in the UK. Mussarat appeared to have been swept off her feet as a result of being pursued by a dashing young officer. In the event, however, marriage turned out to be something of a disappointment. Saleem’s ship was only docked in Karachi for a few more days, after which he sailed away for a full 12 months. Mussarat asked her in-laws if she could return to her parents’ house to await her husband’s return, but they refused; instead, they insisted that she should fulfil her duties as a daughter-in-law. She found herself reduced to the position of domestic drudge to a houseful of strangers. In due course Mussarat found relief when her husband’s ship returned to port and, after obtaining a passport, she accompanied her husband on his next voyage. However, she was dumbfounded by her husband’s behaviour when they

Fazl

=

=

= The Siddiqui biraderi

Zahir

=

Shameem

Aisha

=

Aleem

Saleem

=

Mussarat

Aleem

Saleem’s Biraderi

Figure 6.2 Saleem’s biraderi.

Kiren

Tariq =

Zaheeda

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docked in a European port. Saleem took her out to a nightclub, where Mussarat was shocked to find alcohol being served, and further embarrassed when drinks were delivered by topless waitresses. Their relationship soon became strained on the discovery that Saleem was not the upright Muslim she had assumed he was, and Saleem was equally disturbed by his wife’s refusal to countenance – let alone to participate in – his cosmopolitan lifestyle. Arguments followed. Saleem frequently lost his temper, whereupon he began to abuse Mussarat using foul and insulting language. Whilst Mussarat was careful not to overstep the rules of propriety (a failure to do so would play directly into her husband’s hands), she took every possible opportunity to respond in kind. She had no alternative but to put up with the burden with which she had been saddled. However, their quarrels did not interfere with their sex life and in due course Mussarat gave birth to three children. Once the children were born, she ceased to accompany him on board and settled in a house in the Birmingham suburb of Alum Rock, where Saleem’s brother Aleem had a medical practice. Meanwhile, her husband continued to pursue a nomadic lifestyle. In addition to his differences with his wife, Saleem’s relationship with his children became equally shaky. After a particularly severe row with his father, his eldest son Ayaz left home. Soon afterwards, Saleem obtained a job as a harbour master in Dar-es-Salaam, and persuaded his wife and daughter to come and join him. Their relationship did not improve, however, but deteriorated to the point that Saleem attempted to divorce Mussarat. But when Aleem learned of his brother’s plans, he flew to Dar-es-Salaam and managed to patch up a compromise, not least because he was concerned that their cousin Tariq’s marriage to Mussarat’s sister Zaheeda would come under severe strain if Saleem was to divorce Mussarat. This only temporarily deterred Saleem. As an insurance policy – and also as a means of increasing his bargaining power – he obtained a talaq (Islamic divorce) on his subsequent visit to Pakistan, although he did not tell anyone about it. By the time he got back to Dar-es-Salaam, Mussarat had returned to the UK. Thereafter he played the role of visiting father and husband, demanding all sorts of privileges (including sexual access to his wife) whenever he returned home. His children became increasingly disgusted by their father’s behaviour. Matters came to a head after Mussarat found herself entertaining a party of her husband’s kinsfolk, who arrived without warning in the new house that Saleem had bought. He did not stay to entertain them and Mussarat and the children were left in the shameful position of having to do so. Saleem did not come home until after the guests had departed, whereupon Mussarat made no effort to prepare food for him. Nevertheless, as she went upstairs to the bedroom, Saleem indicated that he expected her to entertain him when he came up to join her, since he would be returning to his ship within a day or two. When Saleem eventually came upstairs, Mussarat ignored her husband’s earlier observation, and instead took the opportunity to question him about his future plans, and most especially the prospect that he might be planning to divorce her in favour

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of his sister-in-law Ayesha’s niece. Having overheard parts of a whispered conversation between her husband and Ayesha whilst they were still living in the flat over Dr Aleem’s clinic, she suspected that the two were hatching a plot to dissolve his marriage to Mussarat so as to enable him to marry Ayesha’s niece from Karachi. In the face of this onslaught from his wife, Saleem took the opportunity to raise the stakes. Far from seeking to reassure Mussarat, he told her that she had better have a look in his brother Aleem’s safe, where she would find the talaq he had obtained in Karachi six years earlier: in other words they were already divorced. If she so wished, he was quite ready to announce that they had in fact been living in sin for the past six years, whereupon she would lose her reputation for modesty. On the assumption that he had trapped his wife in an untenable position, he instructed her to go and fetch the massage oil to help his performance in the bedroom. This was too much for Mussarat. Saleem was lying naked on the bed with his private parts exposed, so instead of fetching the massage oil she brought the can of petrol, poured its contents over Saleem and set it on fire, before rushing out of the room, terrified of retaliation. Saleem subsequently died of his burns. Although Mussarat was charged with murder, the jury found her guilty of manslaughter. A miscarriage of justice? In this case I was instructed by the police rather than the defence when the investigating officers approached me for assistance with a challenging conundrum. They were dealing with the case of a young Muslim man who had been found stabbed to death in his car. The young man’s girlfriend, who had recently discovered that she was pregnant, belonged to a local Bengali family,4 and the police had reason to believe that he had lost his life in an honour killing, planned and executed by his girlfriend’s father and two brothers, in revenge for impregnating their daughter/ sister. However, there was one obvious weakness in their case: whilst they had DNA evidence that directly associated the younger brother (who was only 14 years old when the murder took place) with the killing, they only had circumstantial evidence with respect to the older brother and the father’s participation in what they took to be an honour-based crime. They were looking for an expert who would be in a position to substantiate their hypothesis. Having warned the investigating officers that my duty lay to the court rather than to those instructing me and that I would in consequence make up my own mind about the matter, I agreed to go ahead and prepare a report. The police sent me a large bundle of witness statements, together with the case summary prepared by the prosecution. My first task, as always, was to work out who was who within the family, an exercise which produced the following result: Israb Ali, the head of the family, had settled in the UK many years ago, and his son Chomir, aged in his early 40s, had arrived in his late teens, followed by his

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wife Hasna a few years later. Hasna subsequently gave birth to three children: Manna, who was 18 at the time of the incident, Mujib, who was just over a year younger and Mamnoor, who was aged 14. However, after a couple of hours of digging into the statements provided by the police, I came to the conclusion that there was something seriously wrong with the prosecution’s hypothesis. It became clear that by the time of Arash’s death it was no secret to the family that Manna was bearing Arash’s child, as negotiations were in train for a marriage between them to be arranged, hence legitimizing their relationship as well as their unborn child. However, their developing relationship had not been problem-free. Manna had moved out of the family home more than a year earlier following a bitter argument with her younger brother Mujib, who had objected vigorously to her involvement with Arash. But despite leaving home Manna kept in touch with her mother and her youngest brother by telephone. During the fasting month of Ramzan when she was three months into her pregnancy, she rang her mother and asked if she could come home. It appeared that her mother had welcomed her back, despite her pregnancy and, indeed, there appeared to be talk of the family formally approaching her boyfriend’s parents to negotiate a marriage. More significantly, it also turned out that, having come back home, Manna went out with Arash and his friends every evening, and that she had been waiting for him to pick her up on the evening of his death. Arash never used to come into the house but waited outside in his car for Manna. On one occasion her mother sent out some post-iftar food to Arash, which is very significant because in South Asian contexts the giving and receiving of food is an overt signal of mutual social acceptance. Also, Mamnoor appeared to have liked Arash: as it turned out that he had gone and lit a candle at his grave prior to his arrest. At the point when the murder took place, the only person who appeared to be actively hostile to Manna’s involvement with Arash was her younger brother, Mujib. In other words, my examination of the internal dynamics of the family led me to conclude that it offered no support for the prosecution’s hypothesis. To be sure, Arash had been killed, and it seemed clear that there was at least some kind of family involvement in his death, given that the murder weapon was a knife belonging to Mujib. In my opinion, further explanations were required. I informed the investigating officers of my preliminary conclusions, but as was appropriate they instructed me to complete a full report. Having done so, I reached the following conclusion: Although it must still be regarded as hypothetical at this stage, the explanation which best fits the facts of this case is that Mujib was driven by all-consuming jealousy of his sister, and overwhelming feelings of bitterness towards his sister’s violator. Such a motivation is in my opinion far more concordant with the circumstantial evidence than the suggestion that this was an ‘honour killing’ coordinated by Chomir Ali and executed by his two sons.

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If so, the result of the DNA analysis of the items contained in the Tesco bag becomes a key issue. I do not know whether Mujib and his brother are of a similar size and build, such that Mujib (or an accomplice) could have donned Mamnoor’s clothes. If such a possibility is plausible, it follows that a query must be placed against the current interpretation of the presence of Mamnoor’s skin particles and sweat precipitated by the DNA findings. Could it be that the contamination occurred prior to the assault? Just the same question needs to be asked of contamination of the murder weapon itself. It was clear that my findings ran contrary to the investigating officer’s expectations, but by now the trial was only a few weeks away and so she forwarded it to the QC handling the prosecution. Sometime later I rang the investigating officer and learned that the prosecution did not intend to rely on my report, but that it would be disclosed to the defence as unused evidence. I jokingly responded that I expect to receive urgent calls from those preparing Chomir’s and Mamnoor’s defence, since my analysis of what had gone on was clearly in their favour. Surprisingly, my phone remained silent, and in due course I learned that Chomir, Mujib and Mamnoor had all been found guilty and sentenced to life imprisonment. I was most perplexed, and set about exploring what had happened at the trial. As I did so, I became ever more concerned. One of the most striking features of the trial was the paucity of evidence brought forward by the defence. Although both Mujib and Mamnoor had given evidence in the witness box, Chomir had chosen (or more likely had been advised) not to do so. Although both Manna and her mother had prepared witness statements for the defence but had been advised not to attend the court because they would be called to give evidence in due course, the call never came. Nor were any of Arash’s and Manna’s close friends called to give evidence. Hence, other than the evidence offered by two of the defendants, all the witnesses of fact who gave evidence were called (and selected) by the prosecution. No expert evidence was called by either side. As a result the prosecution was successfully able to argue that the three male members of the family had been motivated by a determination to protect the family’s honour. At a later stage of my exploration of the trial documents, I also discovered that an alternative and potentially promising line of enquiry on which the police had initially embarked was suddenly dropped for no obvious reason and that their decision had been accepted by all three defence teams. The defence strategy was not so much to undermine the prosecution case by challenging the evidence it had set before the court, but rather to argue that the prosecution had produced insufficient evidence. With this in mind they had developed extensive legal arguments which they put before the judge at the outset of the trial and again at the half-way stage (after the prosecution had set out their case) suggesting that the proceedings should be halted because the prosecution had produced insufficient evidence to

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support their case. In the light of this strategy, the objective of their disinterest in calling any additional evidence on their own behalf became quite clear. By failing to add to the stock of evidence set before the court, some of which might be to their disadvantage (most especially so in the case of Mujib), they strengthened their argument that there was insufficient evidence for the matter to be put before the jury. However, the very experienced trial judge was unimpressed by these tactics: he threw out the defence arguments and let the trial proceed to its conclusion. The defence were ill-prepared for such an outcome and their clients were all in due course found guilty of murder. Was this an equitable outcome? And if not, how should it be appealed? The vast majority of appeals against conviction in the criminal court are made on points of law, most usually on the grounds that the trial judge had mishandled the course of the proceedings or that he had misinstructed the jury. With hindsight, it became obvious that the defence strategy had been devised with precisely such a possibility in mind. Indeed that strategy was in due course implemented by Mujib’s counsel. Leave to appeal was granted, but in due course his argument that trial judge had failed to alert the jury might have been his brother’s accomplice was thrown out by the Court of Appeal (Regina v Mujibur Rahman). In the meantime, Chomir and Mamnoor were left high and dry: as I write, they have served five years of their sentences. In addition to mounting appeals on points of law, there are two further but substantially more difficult grounds on which an application can be reviewed by the Court of Appeal: firstly by the introduction of new evidence which was unavailable during the course of the trial; and secondly on grounds which stand at the outer limits of admissibility, namely that the defendants were less than competently represented by counsel. Given that the bar is a tightly knit community, the latter is exceedingly difficult to pursue. Those who routinely identify each other as their ‘learned friends’ are extremely reluctant to impugn each others’ professional competence. As for ‘new evidence’, all the evidence that might have precipitated a different outcome was readily available at the time of the trial. If the defence had chosen to use it by, for example, calling Manna and her mother to give evidence, or by calling me to do so from an expert perspective, they could readily have done so. Moreover, the defence could have also made a much closer scrutiny of the ‘unused evidence’ collected by the police had they chosen to do so. As I worked through all this material in the aftermath of the trial, I realised that when the police had instructed me at the outset they had been significantly economical with the documentary evidence they had chosen to send me. Two issues were of particular significance. In the first place it became clear that they had failed to include witness statements suggesting that evidence which appeared to implicate Chomir in the disposal of the murder weapon might have been a set-up; secondly, and even more egregiously, the unused evidence cast severe doubts on the wisdom of the police to abandon the alternative line of investigation by which they had set considerable store before the DNA evidence apparently implicating Mamnoor had become available.

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In the immediate aftermath of Arash’s death, the police made two arrests: first, of Mujib and, secondly, of his close friend P, also of Bangladeshi origin. Both vigorously denied having been in any way involved in Arash’s death and both produced alibis. In P’s case, he produced evidence that he had been working in his father’s restaurant at the time when the incident took place. It was on the basis of this alibi that P was eventually released without charge. However, careful examination of the unused evidence threw a great deal of light on the reasons why initial suspicion fell on both Mujib and P. It turned out that P and Arash had an extensive history. Prior to his involvement with Manna, Arash had been going out with another young Asian girl, Q, who had subsequently become P’s girlfriend. However, in the aftermath of the collapse of Q’s relationship with Arash, she developed bitterly hostile feelings towards Arash on the grounds that he had ‘dumped’ her, and also towards Manna considering it was she who had caused her to be dumped. As a result, P was under pressure to regard Arash with hostility from two sides: from his new girlfriend, and also from his best friend Mujib, who was equally hostile to Arash because he was interfering with his sister’s ‘modesty’. There was evidence of several violent confrontations between P and Arash. Moreover, there was even evidence to suggest that P had boasted of having ‘done away with Arash’ in a nightclub a few days after the murder. Taken together with my profound concern that the internal dynamics of Manna’s family provided no support for the argument that her father and younger brother were actively hostile to the prospect of her marrying Arash (which would by definition do away with any thought that their relationship was dishonourable), let alone of them having any interest in getting rid of him/punishing him through an ‘honour killing’, this material (to which I only gained access long after the trial was over) opened up an entirely different perspective on the circumstances of Arash’s murder. It was indeed an ‘honour killing’ of a sort, organised and in all probability implemented by two young men who felt that they had been ‘dissed’, but who had taken great care to cover their steps by arranging the evidence in such a way that it suggested that other members of Manna’s family were also the perpetrators. Whether or not this hypothesis would hold good if it was explored in open court I do not know. All I can say is that it would appear to offer a greater fit with all aspects of the evidence than was the hypothesis on the basis of which Chomir and his two sons were convicted. However it is no means clear as to whether there is any prospect of these issues being systematically reconsidered. Applications to the Court of Appeal are normally made either on points of law, as the result of the emergence of new evidence which was not available to the defence when the trial was held, or in the form of criticisms of the trial judge’s handling of the trial. In this case neither of these approaches seem likely to have significant degree of traction. If my analysis is anywhere near correct, Chomir and Mamnoor were let down by preferred strategy of their legal representatives – namely to present the minimum possible amount of evidence, in the hope that they would be able to persuade the trial judge that insufficient evidence had been adduced for it to be safe for the

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matter to be placed before the jury. That strategy clearly failed. But do Chomir and Mamnoor have any prospect of seeking redress in the aftermath of this outcome? All the professional advice I have so far received suggests that they do not, on the grounds that the defendants had every opportunity to instruct counsel in the run-up to the trial, as well as during the hearing itself. Since counsel are taken not just to be representing their clients, but doing so in the light of specific instructions, it follows – so I am informed – that if the defendants were dissatisfied with the way in which they were being represented, they should have made that plain before, or at the very least during the course of, the trial. Having failed to do so, they consequently have no grounds on the basis of which to launch an appeal – except, perhaps, on what appears to be a wholly unprecedented route: namely that that their right to fair trial, guaranteed under Article 6 of the European Convention of Human Rights, was so severely compromised by the way in which they were represented that the basis on which they were convicted deserves comprehensive re-examination.

A concluding commentary If I have learnt anything from my experience of providing expert reports in homicide trials it is that no two cases are the same. Nevertheless, virtually all the cases that have come my way display a number of commonalities. What, though, about the concept of ‘honour killing’ itself? Is it of any legal utility? By definition any crime so labelled is ipso facto a cultural crime – in the sense that such an offence can only be committed in a context where issues of honour and modesty loom large. From that perspective, all of the cases I have highlighted in this chapter, and indeed all of the cases in which I have prepared expert reports have been ‘honour killings’. But should all incidents of homicide that occur in South Asian contexts consequently be identified as honour crimes, such that they attract automatically exemplary punishment? I think not. Cultural conventions merely set the conceptual premises within the context of which social interactions occur; and whilst those premises consequently set the framework within which actors routinely order their behaviour in that particular context, they do not determine either the contents of the actors’ behaviour, or their motivations. But this is not to suggest that either behaviour or motivation are unaffected by the cultural context within which they are articulated. As linguists have long since acknowledged, whilst grammar necessarily conditions speech, it in no way determines the content of our utterances; if so it follows that culture (at least in the sense which I have defined it here) similarly conditions, but does not determine, human behaviour. At the same time it is vital to avoid falling into a further pitfall, namely the erroneous assumption that culture can safely be regarded as a fixed and static entity which permanently enshrines the uniqueness of ones’ nation, one’s community or one’s identity, or, – from a more critical perspective – an irrational obstacle whose central consequence is to inhibit any prospect of movement towards progressive modernity.

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Culture, anthropology and ethno-sensitivity: a rationale for the deployment of a ‘cultural defence’? There is now an extensive literature advocating cultural defence (Kymlika 2001 and Renteln 2004), which has in turn begun to spawn a tide of argument rejecting the legitimacy of such an approach, primarily on the grounds that those who advance such arguments tend routinely to essentialise the concept of culture, and that they consequently seek to argue that when behaviour is culturally driven – as in ‘honour killing’ for example – the perpetrators’ motives should be approached with sympathy and understanding. In a recent volume entitled Multiculturalism without Culture Phillips (2007) applies this argument with some vigour. So where does the line of argument I have developed here stand in the light of Phillips’s critique? Whilst I have argued that an ethno-sensitive approach to service delivery is a prerequisite to achieving equitable outcomes, it should by now be clear that in no way have I suggested that the distinctive premises in terms of which the participants in my case studies operated determined their behaviour. To be sure those premises conditioned their behaviour, but the behaviour of the perpetrators turns out to be driven by a wide range of emotions and motivations. In other words, these mysterious ‘alters’ turn out, on close inspection, not to be so different from ‘us’ after all. Hence, I find myself wholly in agreement with Phillips when she argues that: The suggestion here is that cultural evidence works best when it enables judges and juries to fit the defendant’s actions into a pattern already familiar through mainstream culture; that in the end, it is the sameness not the difference that matters. … Cultural arguments work when they enable judges and juries to fit what might otherwise be deemed extreme or incomprehensible behaviour into familiar patterns. Chiu puts it thus: ‘The jury will process evidence about another seemingly foreign and different culture only to the extent that the jury can relate to it and understand it. Thus, where the jury finds common ground with the defendant, its deliberation and verdict becomes an exercise in recognizing cultural sameness, not difference’. The difficulty with a cultural defence is that it mobilises culture in ways that encourage absurdly large generalisations about people from particular cultural groups. If it could be mobilised in the more nuanced way that has come to be available in relation to gender or class, this would be a major advance. (Phillips 2007: 96–9) The core issue here is what is meant by ‘culture’. Whilst I am arguing that evidence of things said and done in cultural contexts which are unfamiliar to the jury (and indeed to most other participants in the proceedings as well) will need to be

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carefully contextualised if it is ever to be properly understood, I am most certainly not suggesting my contextualising effort can or should be used as an excuse for criminal malfeasance. Rather, I am suggesting that if the jury is to interpret the evidence before it on an equitable basis, and above all to avoid reading it through the distorting premises of its members’ own taken for granted assumptions and stereotypes, it is essential that they should have access to an ethno-sensitive ‘translation’ of the things said and done into a conceptual framework with which they themselves are familiar. In the absence of such a perspective, there is a strong likelihood that they will grasp the wrong end of the stick. Like most legal systems, English law distinguishes between deliberate acts of murder and much less deliberate acts of manslaughter, in which the perpetrator was subjected to an unbearable level of provocation. This is not a culturally grounded distinction; rather, it appears to be one which is widely applicable, regardless of the cultural context in which it occurs – even if just what kinds of actions cause intense provocation vary from context to context. In these circumstances, the demands of equity appear to be quite straightforward. But this certainly does not mean that issues of culture are irrelevant to the process of distinguishing between murder and manslaughter. Yet just what is the role of an anthropological expert in the midst of all this? The more active I have become in fulfilling this role, the more I have become aware of the contradictions that surround it. The essence of my role is clear enough: it is to use my expertise and specialised knowledge of a particular subject beyond the experience of the average person to provide the court, and especially the finders of fact, with a greater degree of insight into the significance of the evidence laid before them. My role as a context-setter, which is one of the most crucial dimensions of my job, is not just to illuminate the premises which underlay the behaviour of the persons whose actions are being explored in the course of the proceedings. Rather, if I am to fulfil my task effectively I have to find some way of acting not just as a translator but as an interpreter or, in other words, to enable my audience to ‘see though’ the cultural specificity of the evidence they have heard, the better to grasp its underlying logic. However, as we have seen, the expert is in no sense a free agent in the course of his efforts. Even though all my reports contain a phrase indicating that my analyses, arguments and conclusions are my own professional opinion and are not influenced by pressures exercised by those instructing me, my room for manoeuvre is in practice tightly restricted. Counsel recruit, instruct and utilise experts and their reports on a tactical basis – as is only too clear in my case studies. This in no way suggests that anthropologists can or should seek to replace the role of counsel, judges and still less of juries in the course of legal proceedings. Nevertheless, it is to suggest that when the evidence before them has to do with things said and done in cultural and conceptual arenas with whose internal logic the court is not immediately familiar the outcome is likely to resemble that of a lottery in the absence of an enhanced degree of ethno-sensitive awareness.

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Notes 1 For background material on the Kashmiri/Mirpuri kinship, see Ballard 2003 and 1990. 2 For background material on the Sikh Community in the UK see Ballard 1990 and 1977. 3 For a discussion of the use of amulets (U. tawiz) and their powers, see Ballard 2011 and Shaw 2000. 4 For background material on the Sylheti presence in Britain, see Gardner 1995.

Part III

Narratives

Chapter 7

Life and law Advocacy and expert witnessing in the UK Werner Menski

This chapter focuses on two cases in which I was involved as an expert on South Asian family laws. The story of H, a divorced Gujarati Hindu male living in Britain who endured five years of ordeal before finally getting permission for his second wife to join him in the UK (see Menski 2007 for a first critical article on this case), throws serious doubts on Britain’s commitment to human rights standards and demands answers about why relevant expert evidence is not taken on board more effectively in English law. There have been other, similar cases, some possibly even more disturbing. The particular drama of H and his second wife raises troubling questions regarding whether we genuinely do not know about foreign laws, or simply do not wish to know, because adequate knowledge would counteract the hidden agenda of exclusion, deliberate disadvantaging and, in this case, even the condonation of official corruption. The story of A, a 3 year old adopted Kashmiri Muslim child who was brought to the UK and then snatched away from his new parents by local authority officials, raises equally serious questions about the human rights of ethnic minorities and the complex role of experts in the legal process. This case ended with a satisfactory outcome within a couple of months, which is still far too much delay when the best interests of a very young child are at stake. While the psychological effects of this dramatic litigation will probably remain with the concerned family for life, at least this case did not drag on for years. It also appears that expert evidence played a significant role in the outcome of the case. This chapter, based on first-hand data, illustrates the deeply contested position of the legal narratives elaborated by expert witnesses, whose involvement may be resented and their testimony ignored, despite the fact that formal rules grant a legitimate place to such expert testimony under English law. Judges may ask for expert involvement in a case to achieve greater clarity about a relevant foreign law. In such cases, the expert has much authority and responsibility, basically advising the judge on what the relevant foreign law says and means. In other cases, an expert may be hired by either party to the case, and then runs the risk of being undermined and challenged in the adversarial proceedings of English legal practice, either by the other side’s advocates or by another expert. In immigrationrelated cases, the British Home Office now resorts to its own experts; the implications

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of that innovation are yet to be understood, since experts are supposed to act for the benefit of the court and not in favour of either party. The link in this chapter with the book’s wider agenda of highlighting the contested legitimacy of ethnic minority cultural and legal practices is explored in the discussion that follows the first-hand data. The analysis is presented within the wider context of South Asian ethnic minority legal practices in Europe and North America that continue to draw on legal practices in the countries of origin, and now often require the application of the rather vague – and certainly deeply contested – principles of private international law. Since international migration shows no signs of abating, and standard legal education does not prepare practitioners and judges for the resulting complex challenges in the application of multiple legal orders to one and the same case, the need for expert evidence on foreign laws is going to increase rather than decrease.

Overview The overall picture provided here regarding the treatment of ethnic minority individuals by British law is regrettably not a pretty one and continued vigilance is required to monitor this situation (see Menski 2009). In both cases discussed here, recourse to English law and official agencies resulted in worrying forms of victimization that would appear to be entirely illegal and more than a little mala fide. In legal cases such a lack of interest in upholding human rights standards for those using foreign laws to conduct their affairs often leads the litigant’s lawyers to call for the formal involvement of experts on such foreign laws as an additional weapon to ensure that the litigant’s rights are protected. As we shall see, this does not necessarily assist those ethnic minority individuals in fighting the often remarkably hostile official prejudice and injustice perpetrated by English law’s personnel against ‘others’. We will also see that the officially decreed neutral and ‘objective’ position of the country expert becomes all too easily polluted by the adversarial processes of English legal practice. To become involved in a legal case as an expert is thus accompanied by the risk of being seen and treated as an advocate rather than as a specialist academic participant whose primary function is to bridge gaping deficiencies in the court’s knowledge of specific topics. An expert can become all too easily embroiled in the ritualized warfare enacted in the adversarial proceedings of English courts. The expert is supposed to address the judge and assist the judge in coming to a verdict, but one party to this litigation – most often the state party – will have unlimited funds and immense power to challenge expert evidence. While this is more so the case in immigration-related matters than in family law cases, these two fields are often intertwined, as they are in the two cases discussed here. However, in a broader perspective, ultimately unsuccessful intervention on the part of experts also poses a risk that entire minority communities are turned against state authorities that seem to alienate and deliberately victimize ex-colonial ‘others’, probably motivated by the desire to teach them some lessons about

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assimilation and integration. Often in such cases the persons concerned are Asian immigrants who are presumed to lack commitment to the ideals of modernity and formal rule of law models. Experts of foreign laws thus often find that they have to defend the informal processes respected in foreign legal orders against the statecentric presumptions on which European legal orders are based. Court proceedings encompass a much wider range of conflicts than merely that of two competing litigants. The involvement of experts becomes inevitably a deeply political matter, with experts often expected to defend ‘our’ legal order against contamination by others. However, in some scenarios, the expert cannot but tell the court that another legal system is governed by different rules than those on which the European legal system is based. I have been involved in some deeply disturbing cases which, despite much pious talk about ‘inclusion’, show continued evidence of the differential treatment of different groups of people by European state legal systems. It seems that migrants and their descendants are beginning to realize this.1 The criminalization of certain ethnic minority practices is today a latent risk, as the case of A specifically illustrates. One does not need to make highly politicized references to invading other countries to bring them ‘civilization’ or ‘the rule of law’, or to the themes of honour killings and forced marriages to make the point that family law matters are intensely political. What transpires in the individual cases discussed here (and there are many others, all of course unreported) gives rise to much concern that right in our own midst, the basic rights of certain individuals are deliberately being disregarded by an official and formal legal system that refuses to learn lessons about legal diversity and global legal pluralism and refuses to take into account the needs of ethnically defined ‘others’. Of course we are in Europe, and thus in the particular British legal arena we are rightly concerned about protecting the general Diceyan legal framework of having one law for all (see Menski 2008). But if the state itself engages in differential treatment of different groups, the grounding principle of the same law for all becomes a convenient fiction, a legal norm that is dragged in when it suits us, and helps us to hide the considerable legal plurality that exists within English law itself. After all, since 2001 English law has rather silently become more pluralistic by adopting a number of elements from foreign law, including specific elements of Islamic law such as ‘halal mortgages’ and the new term ‘Special Guardianship’ to take into account the Islamic custody concept of kafala (guardianship).2 English law today is thus subject to intense pressures for multicultural accommodation and is increasingly becoming pluralistic as a result of the presence of several large ethnic minority communities in the UK. Experts, finding themselves at the crossroads of such tensions and opposing strains, are often blamed for telling the court what their expert knowledge leads them to conclude about the existence of different legal systems. Indeed, we often simply do not wish to know that there are many different legal orders in the world. But that is not all. Law seems to be everywhere a plurality of pluralities, not a simple binary type of pluralism. Experts have to engage with such pluralities and

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run the risk of being caught by surprise and disgust that people who have lived in our midst for some time should still take recourse to foreign or simply ‘other’ legal systems many years after migration. In this age of widespread global migration people residing in Britain may only recently have arrived here and will have previously taken recourse to different legal systems in their respective countries of origin. To expect that all persons in Britain should, at all times, use only English law then becomes entirely unrealistic. People draw on and identify with the values and norms of different legal systems irrespective of their current residence. Legal systems have potentially global relevance. Of course even English people may wish to go abroad and get married in exotic surroundings under a foreign legal system. No state law can entirely ban such global patterns. Completely to deny such persons, of whatever background, legal recognition of their overseas actions might constitute a human rights violation. Ethnic minority migrants face particular difficulties in such scenarios and are often dependent on expert support, which may then be treated as partisan intervention and a form of advocacy instead of a ‘neutral’ mechanism for the judge to acquire knowledge regarding specific issues of relevance to the case. In the case of H, a recent migrant from India who had married under Hindu law in India, compulsory use of English law would have been theoretically advisable, but turned out to be practically impossible, because the English legal personnel were manifestly unable to handle the resulting complexities, significantly despite expert evidence. In the case of A, an informal overseas adoption was ultimately recognized as legally valid, but nevertheless the judge’s advice was for the couple to adopt the child under English law as well, which would bring further advantages with it. Insistence on the compulsory use of the law of the country of residence is thus good in principle, but often practically impossible. It is also shown to be a bad policy, potentially resulting in cruelty, if the domestic legal actors do not understand the complexity of a case involving other legal systems. When H did try to access the English law of divorce, he was sent from pillar to post and was financially exploited on this circuitous route. Ultimately, this young Indian man had to take recourse to formal Indian legal procedures to achieve the desired outcome. Even that route created its own ridiculous hurdles, as further expert evidence provided on the Indian legal system was considered less valuable in resolving the legal case than adherence to the rigid formalistic rules of the domestic legal bureaucracy. In English law, then, experts often find themselves confronted with a situation of blatant injustice towards ethnic minority groups as well as confusion concerning foreign laws, especially where immigration and family laws are concerned. Britain seems to have learnt hardly anything in the past 30 years about how British Asians skilfully navigate socio-cultural and legal diversities and seek to manage their own lives as best they can.3 Given that English courts and official agents are so muddled and often hostile when it comes to matters of private international law, which regularly involve migrants in a variety of formal and informal legal systems, huge questions arise as to whether experts of foreign legal systems can actually be of any

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use at all. More specifically, one might ask whether such experts will be allowed to be useful, because more often than not an expert will produce evidence that a specific foreign law was properly followed, but the result will not please the English legal authority concerned. Remarkably, this does not only happen in immigration-related cases, where such problems have existed for decades now and are not really resolved.4 Systematic discriminatory treatment of certain Asian and African individuals worryingly illustrates that today severe problems continue to arise in family law matters, often requiring expert intervention. Whether this intervention on behalf of the expert is ultimately useful or not does not appear to depend primarily on the expert’s level of expertise. Rather, success or failure of the expert’s intervention seems to depend quite often on how the specific sociolegal narrative is handled by the domestic court personnel and the decisionmakers involved. In immigration contexts, of course, the primary decision-makers will nowadays often act in foreign embassies all over the world rather than in a court building in the UK. This, too, has posed new challenges to experts like me, who are then pitted against the expertise, alleged or actual, of foreign legal practitioners. Here again, there is ample room for confusion and for competition between two opposing ‘talking experts’.

The story of H The worrying story of H involves a young hard-working Asian man living in the UK who suffered (along with, as one forgets all too easily, his wife in India) massive agony, emotional distress and severe financial loss over several years. This saga cost H almost £10,000 before he could finally welcome his lawfully wedded wife to the UK from India. It is a disgrace that even in 2007 the inter-linkage of immigration law and family law should have given rise to such a ‘difficult’ case. H, instead of being helped towards inclusion, was deprived of his basic rights for years and had to invest immense mental energies as well as much money in fighting for his rights. Being sent from pillar to post, he clearly lost faith in how we handle our laws in Britain. Fortunately, he did not give up his commitment to his wife in India, whose family was unsurprisingly beginning to wonder whether there was something else to worry about. My analysis of the case seriously questions what has happened to our professed commitment to human rights, but above all it asks, in the context of the present project, why relevant expert evidence is not taken more seriously in English law. H, a young man from a quite prosperous farming background in the Indian state of Gujarat, really had no need to go abroad, but he became involved in the transnational Gujarati diaspora as the result of a marriage proposal from a Gujarati woman settled in the UK. As an enterprising individual, H was keen to make his mark and was somewhat bored with routine life in the village, knowing that many people had migrated to greener pastures. So when a marriage proposal came from a woman of his community who had been a resident of Britain for about 10 years, he agreed to marry her in February 2001, despite the fact that she

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was divorced and had a young child. Following a customary Hindu marriage in India, H applied for settlement in the UK as the spouse of his wife, a British Asian woman. Hoping for a prosperous future, he was willing to work hard to make a good life for himself, his wife and his child. There is nothing improper about this common human story, provided we accept that secondary migration as a result of marriage is actually quite normal these days, especially in transnational communities. Little did H know what to expect when he came to the UK in June 2001, unaware that earlier barriers to immigration had been removed by a government promising to strengthen certain people’s human rights.5 H could not know then that years later he would begin to feel that he had chosen life in hell. Typically, he started to work in a well-paid night shift job that few people these days wish to take. He laboured long hours, almost forgetting that he had a wife and child. In June 2002, he duly obtained indefinite leave to remain in Britain on the basis of his marriage. But soon his wife started complaining that he did not spend enough time with her and was always working. They quarrelled, split up a few months later and started to live separately, certainly not something that Indian villagers are used to. Other than applying for entry clearance and seeking his right to indefinite leave to remain in Britain, H had never had intensive contact with the English legal system. In fact, there had been no real contact of this couple with English law, certainly not with matrimonial law. So when the loneliness became unbearable, and the irretrievable breakdown of their marriage was crystal clear, these two young Asians in Britain did not proceed to obtain a divorce under English law; instead, they linked themselves back to their local Hindu law in India. It transpired later that H and his wife both did not know anything about the rules of English divorce law and did not realize how easy it would have been to seek a ‘quickie divorce’ under the so-called ‘Special Procedure’, which has actually now become the norm in English law.6 They were still at stage 1 of what I have described as the learning process of new immigrants to Britain.7 Stage 1, as I observed specifically for Asians in the UK, is based simply on almost total ignorance of the law of the new land. Even in 2003 these two young Asians in Birmingham remained evidently unaware of English family law rules. After all, the couple had married in a religious customary ceremony under Hindu law in India in 2001 and this Indian Hindu marriage had been duly recognized by the English legal authorities as legally valid. This plain application of the basic rules of private international law rightly respects and considers as legal what the other jurisdiction recognizes as legally valid on its territory. Thus the legal reference point for H and his wife, despite living in Birmingham, remained the Indian laws of marriage and divorce as applied to hundreds of millions of Hindus as a personal law. English lawyers, as H now knows for sure, and actually sensed earlier, do not understand the details of such laws. They are just interested in making money, and getting involved with them in Britain will certainly cost much money. That Indian family law continues to retain huge

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relevance for British Asian residents and for British immigration and family law practice cannot be doubted.8 That such Indian family law continues to apply to hundreds of millions of people from all over the world should also be well known, but nothing is taught about this in most English law schools, nor are such topics covered in depth at the professional stage of legal education, whether one seeks to become a barrister or a solicitor. Most formally trained English lawyers, then, do not appreciate that such laws continue to exist,9 and consequently fail to apply them in private international law contexts when necessary. Expert evidence will be needed in such cases, but first of all, there needs to be the realization that such expert evidence may be relevant. Choosing a customary divorce in India H and his estranged wife knew nothing about experts on Hindu law and simply connected themselves back to their natal villages in India. Since living separately after a failed marriage was not a long-term solution for either party, they decided to end their marital relationship. Typically, they booked tickets to India, went back to their local people and followed the guidance of elders on how to end a broken marriage under customary Hindu law.10 This was a matter of common sense in this particular situation, even if under the Family Law Act of 1986, English law expects all people having residence in England to take recourse to English law. So in February 2003, H and his wife signed an elaborate Deed of Divorce and even duly registered it with the sub-registrar of the local city court, because H was advised that he might need to show written proof of this divorce to officials later. So this couple thought that they had swiftly become free again. Still blissfully unaware of English laws, H hurried back to England to resume his work. Nobody complained now that he was working virtually round the clock. He prepared to buy a house and became mentally ready for marriage again rather soon. His ex-wife returned to England as well and she, too, was to marry again in India soon. The mental state of H throughout this period confirms my observations that many Asian migrants in Britain remain in what I called stage 1 – that is, with virtually zero knowledge of English law. They live and work in Britain, but their mind is really in ‘the other place’. Marrying again in India and seeking entry clearance It soon became time for H to marry again. Upon returning to India for a brief holiday in 2003, he was introduced to a young Hindu woman whom he liked and agreed to marry. Assisted by his elders, H thus contracted another Hindu wedding in August 2003, again in accordance with Hindu customary rites and ceremonies and, as before, the marriage was also registered. As far as the spouses and their families were concerned, H and his new wife had entered a legally valid Hindu marriage, properly solemnized in a public ritual. What English lawyers did not know, but ought to be aware of, is that this Indian Hindu marriage became legally

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valid under Indian law on completion of the rituals in accordance with the customs of both of the families involved.11 Under Indian Hindu law the registration of a marriage is merely a procedural option, exercised here because H and his family had begun to learn that documents can be useful. Fortunately, English law normally makes no fuss over recognizing customary marriages contracted in India, quite in contrast to how English law treats customary divorces attained in India. The inherent illogicality of such distinctions has not struck many observers, nor has Parliament taken notice of it, creating a strange scenario that deserves special examination. This illogical and dual treatment of Indian marriage and divorce by British law was about to hit H in the face. As far as H was concerned, he was now happily married. He had enjoyed a brief honeymoon and had then returned to Britain alone to resume work and prepare the marital nest. In September 2003, his wife made what was to become the first of several applications for settlement as his spouse, instantly refused on the ground that she had not produced the divorce papers of her husband. A fresh application was then swiftly made in November 2003; this couple was serious about wanting to be together. The wife was interviewed this time and questioned about the husband’s divorce document of February 2003, which she had produced in evidence. Apparently the entry clearance officers in India were expecting to see an English decree absolute and simply failed to pay attention to the Indian divorce document. One may call this shoddy service delivery; it certainly reflected ignorance about Hindu customary divorces. This official refusal of entry clearance on the ground that the wife of H was not legally married to the sponsor was of course devastating news to H and his wife. As he recounts in a document in 2004, this ‘came as a great shock to both of us’. H even indicates that his first wife ‘too was shocked as we were under the impression that we were properly divorced’. However, the first wife of H chose not to – and still does not – help H with his legal problems, since she has been caught up in her own story. Understandably, she wanted nothing to do with the case of H and his ongoing problems, not only because she believed herself to be fully divorced from him, but because meanwhile she had remarried a Hindu man in India. He was, after some initial confusion, allowed to join his wife as a spouse in the UK some time in 2006. She now feared that opening up the case of her ex-husband would have a negative impact on her own case. She refused to sign any documents confirming that she had freely agreed to the Indian divorce in 2003 or to assist in divorce proceedings in the UK. So while H as the ex-husband found his new wife stuck in India, facing one refusal of entry clearance after another, his ex-wife was happily united with her new husband in Britain.

Recourse to English law When I first heard about this scenario, I was rendered speechless by the complete irrationality of the procedures enacted in the name of the law. I had been contacted by an Asian legal practitioner who needed an expert report on customary

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laws of divorce in India. Requests of this particular kind often arise, and I instantly agreed to assist the hapless husband. By that time, however, the case of H had already become a total mess caused by legal incompetence, lack of mental acuity and, as we are about to discover, some elements of corruption. First of all, it might be reasonable to expect that entry clearance officers in India would be aware of the complexities of Indian family laws so as to be able to do their job properly. However, a recent article confirmed that this is evidently not the case.12 When an application is straightforward, there is mostly a straightforward outcome. In more complicated cases, mistakes may and do arise. The case of H was complicated by the earlier divorce of the sponsor. Still, the outcome of the case was evidently not merely a result of some basic mistakes. To interrogate this further, we need to enter the corridors of English law. In view of the rejection of his wife’s entry clearance application in India in early November 2003, H had been advised by a local Asian legal practitioner to approach the Leicester County Court with a petition for divorce from his first wife. It is at this point that I became involved as an expert in this case. In January 2004 H’s solicitor made such an application to the court for a declaration of divorce, supporting this petition with an affidavit exhibiting his Indian deed of divorce of February 2003 and my expert report. The divorce documentation speaks volumes about the effects of personal and official legal ignorance regarding the tension between foreign legal systems and British law in Britain. In his application, H recounts how, considering himself divorced, he had remarried in India. The Indian registrar had recognized his earlier divorce and subsequent marriage, but the British High Commission in Mumbai had then refused to recognize the Deed of Divorce of February 2003. Stating that his first wife too wished to terminate their marriage and ‘was shocked to find out that the British High Commission did not recognize our divorce’, he implores the court ‘to terminate our marriage formally so that we can then produce the final decree of divorce and can be absolutely sure that our marriage is at an end’. He states that his first wife is a British citizen, that he has indefinite leave to remain in the UK and that both parties are habitually resident in the UK. He then concludes: ‘Had I known from the outset that we would be caught up in such a legal wrangle, I would have commenced court proceedings from the outset here in the UK. I humbly request the court to grant me a divorce’. Of course, the English wording of this document is the work of the legal practitioner, but here is evidence of what I described earlier as the process of ‘learning the law’ and entering stage 2 of this process. At this stage, the particular immigrant realizes that it is expected of immigrants to follow the domestic law in the new place of residence. However, this learning process is not a straightforward linear progression, and even years later a person such as H might remain at the mercy of legal advisers. My expert report was clear-cut and concluded that H and his wife had duly followed customary divorce proceedings in India and were validly divorced under Indian law. The court’s reaction to this application, the affidavit and my expert

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report is remarkable. H was in effect asking for a declaration from an English county court that he had been validly divorced under Hindu law in India in 2003, rather than asking for a divorce under English law, given that his first wife refused to cooperate in the process. Quite appropriately, the district judge of this city with a large number of Asian inhabitants concluded that H was already validly divorced in India and required no such declaration.13 When it was pointed out to the judge that the entry clearance officer in India had decided otherwise, he stated that that decision may be flawed and directed H back to the arena of entry clearance applications. The case file indicates that in June 2004 the same district judge, with obvious irritation at the insistence of H that he still needed formal help, bluntly refused to hear anything more about this matter. It seems that the doors of English family law were slammed in the face of H. Recourse to English law had clearly not helped him and had cost him a lot of money, with no usable result. This kind of experience does not appear helpful if we really want to educate British Asian residents about our laws.

Seeking expert evidence As indicated above, at this stage I had been brought in for the first time as an expert on Indian divorce law. In view of the documents, I swiftly concluded that the Divorce Deed of February 2003 had under Indian Hindu law properly and irrevocably terminated the first marriage. Thus, H’s second marriage in India was as legally valid as his first marriage had been, and his wife was entitled to entry clearance as a spouse. I examined the Divorce Deed of February 2003 in detail. Evidently H and his first wife did not know much about formal Indian divorce law and trusted the guidance of their elders and local legal advisers on how to end their broken Hindu marriage through a registered Deed of Divorce on official stamped paper. This deed recounts the history of the marriage, its breakdown and also records explicitly that ‘in our society, religion and caste there is a custom of mutual divorce with the consent of the parties’. It is noted that this custom still exists and is being followed. The consequence, it is stated, is that both parties are free to remarry. There are clauses in the deed to the effect that the parties are henceforth totally separate and have no further obligations or claims towards each other, with a separate clause protecting either party from dowry-related litigation. Significantly, showing awareness among the Indian legal advisers about the requirements of formal statutory Hindu law in cases of divorce by mutual consent, it is also explicitly recorded that this Deed of Divorce ‘is executed between us voluntarily without any force, without any alcoholic influence, with free consent which will be binding on the parties and their heirs’. The deed was signed in front of the elders of the community, as appears to be customary. I formed the view that any Indian court, in view of such clear-cut evidence, would conclude that this couple was validly divorced under Hindu law and was free to remarry and said so in the conclusions of my expert report. I knew that providing a detailed discussion of the Indian

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customary law of divorce would neither be necessary nor appropriate. Judges want brief reports, not long dissertations. In this specific case, a brief report was provided to the judge not so much because of the need to simplify the intricacies of foreign laws for the judge but rather because the facts in this case were crystal clear and there was no need for lengthy advocacy. I simply reported on the law as it stands and found that H and his wife had followed the expected process of bringing about a customary Hindu divorce.

Being sent from pillar to post: back to English immigration law However, at least some players within English law evidently think that such customary divorce proceedings cannot be trusted and should not be entitled to legal recognition. The county court judge in Leicester correctly indicated that the plain application of private international law rules meant that the resulting divorce should be granted full legal recognition anywhere in the world. Several provisions of the English Family Law Act 1986 – originally well-intentioned – became questionable weapons in the hands of Home Office officials and overworked immigration judges who, at the end of a long busy day, might stick to procedural detail and forget about human rights, although continuing to pay lip service to them. As indicated, the second wife of H had made several entry clearance applications as a spouse since September 2003, all of which had been refused, but on shifting grounds. Initially, the refusal was based on the absence of evidence of the husband’s divorce. Then the Indian Divorce Deed of 2003 was produced in evidence and the applicant was interviewed. This time the refusal was based on an unwillingness to recognize the legal validity of that Indian customary divorce, in blatant disregard of Indian statutory law. This shifting of grounds for refusal was really puzzling for H, who had by then without success approached the Leicester County Court for a declaration of divorce and had been told that the immigration decision may be incorrect. Clearly, the issue of why an effective Indian customary divorce held to be legally valid by an English judge should still be refused legal recognition by an entry clearance officer completely escapes comprehension. H was therefore forced to ask his wife (who by now was no longer sure whether she was a legally wedded wife) to make another fresh application, indicating that an expert on Indian law had confirmed the legal validity of the impugned customary Hindu divorce. This application (which of course again cost a great deal of money) was also refused, based on the insistence that there was no valid divorce, and thus no valid marriage on which to base an application. In the explanatory statement dated 11 February 2005, the entry clearance officer in Mumbai now elaborated the reasoning behind the refusal and asserted fraudulently: However under Indian law a divorce decree must be obtained through a District or High Court. We have confirmed this requirement with […], Senior Advocate High Court. The divorce deed by mutual consent is merely

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a document to be presented to the Court … Your husband is therefore still married to his first spouse. Faced with this authoritative letter, in despair, H instructed different solicitors, now in London, to prepare an appeal, which of course cost another set of fees. It then transpired that H was asked over the phone to enlist the help of the here unnamed Senior Advocate of the Bombay High Court, who demanded a hefty additional fee in return for expert advice. Given the size of mounting legal bills, H declined this offer of help and instructed the English legal practitioner to assist him with an appeal in London. Meanwhile, there was suddenly another explanatory statement, dated 6 April 2005, which reiterated the above statements of refusal but now significantly changed the grounds for refusal again by adding that because both parties to the divorce had been residents of the UK, it was a legal requirement under the Family Law Act of 1986 that a divorce was finalized under English law. Someone, obviously, had learnt something about the law of India, so now the heavy gun of the 1986 Act was brought back into the battle. Renewed battles: trying to obtain a divorce when you are divorced H was therefore not only sent from pillar to post and virtually taken ‘to the cleaners’, but was now required to respond to these new legal arguments about the virtually compulsory application of English law, which threw him back to English law. Further legal advice was duly obtained from a barrister on the applicability of the 1986 Act. Based on that advice, I provided a further expert report reiterating that the Indian customary divorce arrangements, because of their formal nature and the documentary evidence, would be quite acceptable even within the formal ambit of the 1986 Act, which expected to see ‘judicial or other proceedings’ in the overseas jurisdictions. However, Immigration Judge Dawson, at Taylor House in London, in the summer of 2006, while noting both the refusal of legal recognition of the divorce in England and its legal validity in India, simply decreed that ‘[u]ntil the sponsor obtains a valid divorce under English law from his first wife the Appellant will be unable to join him as his spouse’. The detailed decision indicates clearly that the judge, at the end of a long hearing, was not convinced of my view that the customary divorce process under Indian law fell under the expected ‘judicial or other proceedings’ of the English Family Law Act of 1986. Instead, it was held, this was merely ‘a procedure’ which did not carry sufficient legal validity, never mind that it may be legally valid under Indian law. The English decision-maker thus openly went against the basic principles of private international law about comity of nations and bluntly refused to recognize the entire Indian system of Hindu customary divorces as legally valid. When I heard of this decision eventually, I rang H and advised him to appeal against it. I had now become an advocate for H as much as for the Indian system of customary divorces. Acting as an impartial expert had proven futile. My expert knowledge had simply

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been wiped away by the powers of the decision-making process. I was quite appalled by this outcome. This time, then, English law threw its doors wide open to H, virtually forcing him to take recourse to it. This enforced inclusion was perhaps designed as a kind of citizenship lesson in English law, given that the judge had explicitly defended H’s right to remain in the UK, which had been vigorously questioned by the Home Office. But the decision also meant that H could still not bring his wife to the UK and would need to spend more money, either to appeal this decision or to seek a second, English, divorce. The time to appeal came and went and it seems that H fell virtually into depression. In considering his options, H found out that his first wife had managed to get her new husband into the UK and understood well that she would be even more worried now about reopening her case. Since she continued her refusal to sign any papers agreeing to a divorce, whether in the UK or in India, the doors of English law therefore quietly began to close for H again. Faced with this plainly irrational mess and mounting legal bills, H feared that a further divorce petition in the UK would not only cost money but would also waste precious time. Moreover, his wife’s family was getting really upset now. H thus decided to ‘lump it’ as far as English law was concerned, and I discovered that he went back to India once again, now seeking a formal divorce petition involving ‘judicial proceedings’ to satisfy the Family Law Act 1986. Of course that strategy, too, would involve further expense and more delay, since the courts in India are not exactly known to be the most efficient dispute resolving agencies. My heart sank. By this time I was really no longer an expert acting for H but a supporter of his search for justice. Would the case now be mired in the almost proverbial delay suffered by Indian litigants? I offered to provide my earlier expert report as an appendix to the Indian divorce petition under the Hindu Marriage Act of 1955, which was filed by H on 19 January 2007, four years after the customary Hindu divorce had first been registered. Nothing happened then for months, as feared, but during summer 2007 H went back to India to speed up the process and to reassure his wife and her family about his commitment. I suggested, in fact, that they should produce a child to strengthen their case. My involvement in the case as an expert on foreign laws had clearly come to an end, and now I had almost become an immigration adviser and a trusted friend to H, helping him explore every possible avenue to attain justice. Then, on 26 October 2007, the Principal Senior Civil Judge of Jamnagar finally decided that, based on the facts and circumstances of the ex parte case before him, a decree of divorce should be granted. But that was not the end of the matter. Marrying your spouse again The British Deputy High Commission in Mumbai was informed of the Indian judicial decision roughly a week later, on 3 November 2007, but of course did not issue a spouse visa without further hassle. H’s wife was advised to make another

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visa application, paying another set of fees. The formal divorce decree was included with this application. Almost incredibly, the cat and mouse game continued and this application was also refused. On 21 December 2007, H’s wife was told in writing: I have refused your visa application on this occasion because I am not satisfied you have met the requirements detailed below. Section 281(1)(a) requires that you are married to or the civil partner of a person present and settled in the United Kingdom … Your previous application to join your spouse was refused in September 2007 for the following reasons: … You have now provided evidence to show that your sponsor’s first marriage was dissolved 26.10.07 but your marriage to him was registered 07.08.03. You have not shown that you have remarried your sponsor since his divorce and I am therefore not satisfied that you contracted a valid marriage with your sponsor or that your application meets the above requirement of the rules. So, even at this time, the legal validity of the perfectly valid Hindu marriage contracted in 2003 was again formally rejected. The ground for refusal had shifted yet again. So H went back to India on 5 January 2008 and the couple registered their Hindu marriage for the second time on 10 January 2008. My heart sank again when I saw a faxed copy of this registration document: this was the very first marriage registered in Jamnagar under the new Gujarat Registration of Marriages Act, 2006, Serial No 1 Volume No 1. What if now another decision-maker would further exercise personal judgment by simply claiming that this recent Act did not exist? Fortunately, I had already obtained a copy of this Act and prepared another expert report, explaining for the third time the relevant Indian law on Hindu marriage and divorce. And then we waited, prepared for the worst. I had almost become a member of the family and made it a point to keep a close eye on H, who was really distressed about this further delay. In fact, we felled a couple of trees together in my garden; in retrospect these were evidently therapeutic efforts to release tension. Meanwhile a Notice of Appeal against the refusal was lodged on 14 January 2008. Throughout February 2008, several emails were sent by H with my assistance and from my computer to the British Deputy High Commission in Mumbai, but these attempts to speed up the decision-making process were fobbed off in various telling ways. Then, on 3 March 2008, the entry clearance officer in Mumbai was directed by the Tribunals Service to file by 5 May 2008 a copy of the relevant notice of decision and to serve papers on the appellant. On 19 June 2008, the case was heard in Stoke-on-Trent and Immigration Judge McDade promulgated the decision on 20 June 2008. Notably, this brief determination again dismissed the appeal. The goalposts had shifted yet again and formalism still ruled the roost. The immigration judge was not prepared to pass a favourable decision in view of the fact that H and his

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wife had now married again. Instead, he produced an entirely technical decision, relying on the fact that when the visa application was refused on 21 December 2007, H had been validly divorced from his first wife, but the parties were not yet validly married again on that date. The decision criticized the couple for not marrying earlier, but found no fault in the entry clearance officer’s refusal of the visa. Thus, the decision stated, teaching this Asian couple about the law, but also telling the entry clearance officer in Mumbai that the game was now up: The far better course of action for the Appellant and her Sponsor following the marriage in January 2008 would have been to make a fresh application for a visa rather than to pursue an appeal. I have little doubt that the Entry Clearance Officer would have been required to hold, on the basis of the marriage in January 2008, that the issue of the validity of the parties’ marriage had been settled. Another set of fees was charged for making a final spouse visa application. Since these fees have been significantly increased, they have now become a virtual tax on what used to be called ‘intervening devotion’ in deliberately convoluted cases such as this one. But at least the end of the saga was now in sight. Indeed, a few weeks later H’s wife was finally allowed to join her husband in Britain. In the meanwhile the couple have now had a son, and H has opened his own business.

Analysis: the futility of expert evidence? H spent more than £6000 on legal fees, financing numerous trips to India and his wife’s repeated settlement applications. He was at times close to a mental breakdown and the couple would probably have a strong case for compensation from the state. Additionally, serious issues are involved here around touting and inflated charges by unscrupulous lawyers in India and in the UK. This couple, however, did nothing wrong to deserve such shabby treatment. They simply wanted a good life, but the law put many obstacles in their path. Repeated expert evidence did not really help them to speed up their tortuous journey and overcome obstacles towards being reunited as a married couple in the UK. Was there a hidden agenda in this legal case to make an example of this particular couple, as a warning to other Asians not to marry or remarry in the subcontinent? Whatever the explanation behind the way this case was treated, this saga highlights ongoing and unacceptably cruel failures in Britain’s management of family migration. Regarding the Indian legal dimensions of this case, it should be well known in the state of Gujarat, from which many British Asians originate, that ancient caste customs exist among Hindus, permitting them to marry in public rituals and to end broken marriages by simple procedures that the Indian state law clearly respects.14 A senior Bombay lawyer would obviously have known this. He clearly sought to corrupt the system, fill his own pockets and play on the ignorance of foreign lawyers. Some British academics and well respected practitioners have

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written about such Hindu customs of marriage and divorce, albeit with some flaws.15 While Indian law with its socio-cultural sensitivity has formally recognized Hindu divorce customs under section 29(2) of the Hindu Marriage Act of 1955 (see note 13 above), many lawyers, academics and other supposedly educated people in India oppose such allegedly ‘backward’ customs on various ideological grounds.16 Such political and ideological interventions continue to cause confusion and are easily exploited for ulterior purposes which are damaging to ethnic minorities in Britain today. To hold that the alternative customary divorce proceedings under Hindu law in India are merely ‘a procedure’, not ‘other proceedings’, as happened in the case of H, seems thus rather myopic in the circumstances of the present case. That said, it needs to be acknowledged that there is currently an increasing volume of international divorce petitions involving NRI spouses. Clearly, the last word has not been said on such matters by the Indian courts, which are presently beginning to become more involved in such cases where much depends on the particular facts and circumstances surrounding each individual case.17 The problems for H and his wife were evidently magnified by the confused and generally negative approach of English law to overseas divorces. Expert evidence cannot make a real difference in the hostile climate created by the Family Law Act of 1986 in immigration-related contexts, particularly if judges insist that formal English law concepts should override the basic principles of private international law. I have even more doubts now than 10 years ago whether it is appropriate to insist that Asians in Britain must use English law to terminate their marriages. The strategy used by H demonstrates that alternative overseas routes continue to exist, and are helpful. We see this in many other cases too. We are told that English law introduced its restrictive rules under the Family Law Act 1986 to protect ethnic minority women (or women married to foreign men) against being pushed out of marriages abroad by ruthless husbands, often Asians. H and his first wife had produced clear documentary evidence that both parties were happy to be divorced, and the process was fully documented, agreed and duly notarized. There was really no genuine reason to refuse legal recognition other than the definitional issue of what constitutes ‘judicial or other proceedings’. There was certainly no case at all, a few years down the line, for treating the ex-wife better than the ex-husband by making it legally easier for her to get remarried and have her new husband join her in the UK. The persistent refusal of decision-makers under English law to be rational rather than emotional and to recognize legally valid foreign divorces for the purposes of English law among perfectly genuine Asian parties is thus quite unfortunate evidence of the terrible legal management of multiculturalism. The story of H also makes one wonder about the tenuous role of experts on foreign laws in the legal process. If decisionmakers in England and the many British posts abroad do not listen to such experts and are more influenced by devious arguments from interested third parties,18 something is seriously wrong. The costs of such mistakes are ultimately borne by unfortunate victims, such as H and his wife. English law evidently needs to take such problems more seriously. Steadfast refusal to recognize the legal validity of

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consensual and well documented overseas divorces not only denigrates allegedly ‘primitive’ foreign legal systems but it also makes life hell for innocent members of ethnic minority groups by exposing them to enormous discrimination, suffering and other costs, including exploitation by legal professionals in both the country of origin and the country of residence. A legal system that purports to protect human rights and aims to be a rule of law model for other jurisdictions cannot really be proud that ultimately the story of H and his second wife had a happy ending. The positive outcome of this legal case is mainly as a result of the couple’s determination and commitment to each other and much financial expenditure and not – it seems – as a result of British law’s commitment to human rights or the intervention of the expert. It is certainly not the result of competent and considerate handling of this case by English decision-makers. Nobody considered that divorce by mutual consent, sold to Europeans as a recent ‘modern’ invention, has actually always been an integral part of traditional Hindu and other personal laws, including Muslim law,19 operating within the customary, largely informal realm. As a result, Indian law never saw the need to copy the fully-fledged formal introduction of the breakdown principle into English law in 1973. Section 13 of the Hindu Marriage Act of 1955 still contains a large number of fault grounds, and it also contains an explicit recognition of customary divorces in section 29(2). Since 1976 there has also been the possibility of divorce by mutual consent under section 13B, which an increasing number of Hindu spouses have learnt to use, so that today maybe 30–40 per cent of all Hindu divorces in India under section 13 are processed as divorce by mutual consent. These are the kind of formal but actually informal ‘judicial proceedings’ that the English Family Law Act of 1986 insists on in foreign jurisdictions. We see in the present case that H ultimately pursued a suit under formal Indian Hindu law rather than customary procedures to close his case and to facilitate a final fresh application for the settlement of his wife in the UK. The present case and its problems are evidently rooted in the confused and basically hostile approach that English law takes to overseas divorces. The increasingly messy application of the Family Law Act 1986 in immigration-related contexts, as the present case indicates, raises several questions regarding whether the original purpose behind the strictness of the legal provisions remains justified in every case. H is manifestly not alone in his experience of the lack of helpfulness of the British legal system and the confusions this gives rise to. As indicated, I have even more grave doubts now than I had a few years ago regarding whether it is the correct policy to insist that British Asians must use English law to terminate their marriages. Finally, of course, the whole story makes one wonder what the role of experts is if decision-makers in England or indeed the many foreign posts abroad do not listen to expert guidance and are too easily influenced by devious arguments from interested third parties. The cost of making mistakes remains substantial, but is borne by unfortunate people such as H and his wife. That, too, is a matter of grave injustice which English law needs to take more seriously than it does at present.

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Apart from creating ‘limping marriages’, it also exposes such persons to enormous disproportionate suffering and costs, including targeted exploitation by legal professionals in both the jurisdictions involved. A legal system that purports to protect human rights should not rightfully deny people such as H and his wife the right to end their broken marriage in the way they did, especially not if domestic legal authorities refuse to be cooperative.

The story of A The story of A stands somewhat in contrast to the case of H, because expert evidence in this dramatic episode brought about a fairly speedy resolution. However, this disturbing case raises other serious policy issues about justice, specifically with regard to the official intervention of social workers and the difficult definition of ‘the best interests of the child’ as a basic principle of English law and international norms. The basic facts are simple. A was born as the sixth child of a Muslim family in a village in Azad Kashmir, a part of Pakistan, on 23 December 2005. His father had a childless sister who lived in the UK with her husband. This sister had discussed with the birth mother of A the possibility of her next child being given to the sister and her husband, and A’s father had agreed to this arrangement. So little A, aged three days, was on 26 December 2005 informally adopted by his new mother, while the birth mother continued to nurture the baby. No paperwork was completed, but later documents show that the birth parents had handed over their son to the new parents in violation of the formal ban in Islamic law on adoption, but in accordance with local customary traditions regarding the transfer of child custody in such circumstances. The adoptive mother then took the child to the Pakistani legal authorities to obtain a passport for her son and brought him to the UK in mid-2008 without difficulties. However, a local social worker soon came to know that this little Muslim boy was an adopted child, took the view that Islamic law prohibits adoption and thus argued that the child had been trafficked. As a result, A was snatched from his parents in February 2009 and was put in foster care, while the adoptive mother was charged with trafficking. A desperate call for help eventually led to my intervention as an expert. What would be the correct solution in this dramatic case? The best interests of the young child needed to be balanced with the task of ascertaining the legal validity of this informal adoption under Muslim law, local Kashmiri law and the expectations of English law. The adoptive parents were Muslims living in the UK with Pakistani citizenship, and the child was a Pakistani citizen and the adoption had taken place in Kashmir. This was clearly a matter for an expert on foreign laws. Both sets of parents submitted affidavits prepared in 2009 to explain what had gone on in December 2005. It was apparent that this was an informal family arrangement between two closely related couples, transferring custody of this child to the adoptive parents in violation of the strict letter of Islamic law. So here was a case of local Muslim custom effecting an exception to the general rule about the

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impermissibility of adoption among Muslims because Shari’a law does not appear to allow the legal fiction of adoption to be carried to its full conclusion.20 However, under Azad Kashmir law, which is different from Pakistani law in that it is more Islamic than Pakistani law itself, and more closely based on local customary norms, the best interests of this particular child were clearly served through adoption by a childless Muslim couple from the UK. Thus the birth parents had completely handed over not just custody but also guardianship to the new parents. In Kashmiri and Pakistani law, this informal process was implicitly recognized as legally valid, and good in Islamic terms, more so since the adoptive mother was closely related to the child’s birth father. The Pakistani legal authorities evidently had not even noticed the informally arranged adoption of the child and had simply issued a Pakistani passport to this baby, which then enabled him to be brought to the UK. This de facto adoption was indeed legally recognized by the court in the UK, applying private international law principles to this matter, being reassured by my expert report which the court fully endorsed and accepting that under Kashmiri law this would be treated as a valid transfer of the child’s custody, if not explicitly an adoption. However, rather significantly, the learned judge also made a number of additional orders. This was to the effect that the adoption should now go through the English legal process, because the father had not actually been involved in the custody transfer transactions and also because this would give A automatic access to British citizenship. Despite several months of crucial delay which will have caused considerable mental anguish to the parents and the child, there was thus a fairly speedy resolution of this matter and expert evidence, being positively endorsed, was critical in this case. This raises hopes that talking as an expert is not always entirely futile. Still, I did not feel that I had any kind of control, since the expert reports in the case of H were also based on the legal position of the relevant foreign law, but were simply ignored or at least sidelined. At the end of the day, then, expert involvement is only one part of a much larger and complex process of dispute settlement, which is subject to so many uncertainties and subjectivities. Despite claims to rational authority of ‘the law’, it is evident that such rationality remains influenced by subjectivities over which experts have no control whatsoever. If the judge in the case of A had formed the opinion that this informal transfer of the child in a village of Kashmir was totally unacceptable as a recognisable legal process and was not in the best interests of this particular child, the outcome would have been a radically different one, and the expert’s authority and expertise would be virtually irrelevant. I have been involved in other cases where there was a full-scale and direct clash between the expectations of English law and the assumptions and processes of the respective foreign law. In such scenarios, an expert’s voice is often silenced by overriding policy concerns that block the legal recognition under English law of the ‘foreign’ or ‘other’ legal system. To speak of a lottery may not be out of order. Academic analysis of such scenarios is clearly faced with the predicament that migrants often have to, or prefer to, use different legal systems to sort out their lives.

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While migrants have become fairly skilled legal navigators in this respect, British state authorities often continue to take a narrow, myopic approach and fail to appreciate the role that foreign legal systems play in the lives of migrants to the UK. The result, as both cases discussed here indicate, could easily be massive injustice and is often subject to remarkably incompetent handling of formal law processes. Positive outcomes may be achieved when experts are involved, but that is no guarantee, since judges often do not seem to trust experts on foreign laws. Thus, selfhelp through skilful legal navigation may bring the desired results for individuals and families, but at huge costs in all respects, including the loss of trust and faith in the officially cherished principle of the rule of law. In the relationship between states and individuals, if formal legal processes terrorize individuals rather than helping them, we should not be surprised to find anger and ‘inner migration’ amongst migrants, or even worse consequences. While neither H nor A’s parents are ready to sue the state for compensation, their faith in the state is shaken for life and they will always mistrust official authorities. Perhaps this is just one of the lessons of law and life, together with the lesson that expert involvement is not a magic remedy.

Notes 1 A recent study of Pakistanis in Denmark shows that the affected people are now beginning to realize that maybe their new home is not as hospitable as they once perceived. See Rytter (2010: 599–617). 2 These new developments were examined in Jeremy A. Brown (2008). This unpublished LLM dissertation found virtually no open and public discussion of three important legal issues, namely various aspects of Islamic finance, religious divorces under the Divorce (Religious Marriages) Act of 2002 and the introduction of ‘Special Guardianship’ under the Adoption and Children Act of 2002. 3 An important analysis of these processes of skilled navigation, albeit not focused on law, is found in Ballard (2007: 1–34). 4 See Sachdeva (1993) and Pilgram (2009: 24–40). 5 See Sachdeva (1993). 6 Apparently, 98 per cent of all divorces in England and Wales are dealt with under this procedure, which is only a formal court procedure in name and amounts to little more than the filing of affidavits to the effect that the marital relations have broken down irretrievably, that there is no hope for the marriage to survive, that the financial issues and any child custody matters are agreeably sorted out. In uncontested proceedings of this kind, an English judge will then eventually pronounce a decree absolute in open court. 7 See Menski (1988: 56–66), who outlines three stages of how Asians in Britain learn about English law. Much more evidence of this has since accumulated and a fourth stage is now to be added. The first stage was, and still is often today, simply ignorance of English law. In the second stage there is the realization that English law needs to be applied in England. This partial learning process led to new legal hybrids. In the third stage, Eurocentric scholars assumed assimilation, so that only English legal rules would be followed. But since many Asians have learned to combine English legal rules and the relevant foreign legal elements with some sophistication into new legal hybrids, localised ‘ethnic implants’ (Menski 2006: 58–65), stage 3 represents new combinations of domestic and overseas legal elements in which the overseas legal element often remains the dominant entity. Stage 4, not yet discussed in 1988, displays now a deliberate refusal among ethnic minorities to follow English law despite possessing knowledge of its rules.

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8 I wrote about this 20 years ago. See Menski (1990: 63–67). The workload for experts in this field has since increased, mainly because mainstream English legal practitioners and judges continue to struggle to make sense of relevant foreign laws. 9 On Asians as mistrusted outsiders see Menski (2000: 89–103). 10 This recourse to custom is explicitly preserved in section 29(2) of the Hindu Marriage Act of 1955. While section 13 of that Act contains all kinds of ‘modern’ grounds of divorce for Hindus, including divorce by mutual consent in section 13B, but not explicitly divorce on the basis of irretrievable breakdown of marriage, section 29(2) clearly preserves traditional customary patterns of informal divorces among Hindus: ‘Nothing contained in this Act shall be deemed to affect any right recognized by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act’. 11 Section 7(1) of the Hindu Marriage Act of 1955 represents simply codified customary law and provides: ‘A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto’. 12 See Wray (2006: 112–29) and the interesting response by Andrew Brodie (2007: 147–154). 13 The city of Leicester prides itself on being a multicultural model of the new globalized world. See Martin and Singh (2002). However, the proudly portrayed international composition of this city has not had much effect on the quality of legal practice regarding matters of South Asian laws. While lack of interest at the local universities does not help, lawyers – many of whom meet Asian clients almost daily – tend to assume streamlined assimilation into English law and know little of relevant overseas laws. This contrasts remarkably with the pluralistic sophistication now expressed by Lady Justice Arden in paragraphs 46–48 of Khan v Khan [2007] EWCA Civ 399. 14 On customary divorce see now Holden (2008). 15 See Derrett (1963a and 1963b). Also see Mole (1987: 39–44). 16 See critically Menski (2003: Chapter 11) and Holden (2008), which also discusses the story of H. 17 See Asian Tribune news report by R. Vasudevan (accessed 3 May 2010). 18 In fact, more recently the Home Office has begun to employ its own experts, who are now deemed to be superior to ‘white’ academic country experts because they originate from the respective region. 19 On Muslim law and the agreed divorce method of mubaraat, see Pearl and Menski (1998: 283–4). 20 See also Pearl and Menski (1998: 408) with reference inter alia to Qur’an 33.4–5.

Chapter 8

The case of S Elaborating the ‘right’ narrative to fit normative/political expectations in asylum procedure in Italy Tommaso Sbriccoli and Stefano Jacoviello

The ‘refugee’, and more generally the ‘migrant’, have become paradigmatic figures within the contemporary practices of constructing exclusion. The refugee is structurally placed on a condition of liminality. ‘Humanity in excess’ (Baumann, 2005), he represents – in Agamben’s view (1995) – ‘a border concept that radically calls into question the principles of the nation-states’, offering himself as ‘bare life’. According to the use that Malkki (1995, 1996) makes of the concepts developed by Turner and Douglas, refugees can be regarded as ‘matter out of place’ within a natural (read ‘national’) order of things. Nevertheless, in order to be achieved, this liminal status needs a legal recognition and a juridical sanction. Italy has only recently become a country of immigration. Indeed, the Italian Government has faced a huge growth in the number of applications for political asylum from people coming from countries scattered all over the world and rooted in widely different cultural backgrounds.1 Italy has developed a complex and multilayered system of reception since the mass arrivals on the coasts of Apulia (Southern Italy) of Albanians fleeing from the country after the fall of Communism.2 The purpose behind this system (in the first phase of the process of claiming asylum) is to provide asylum applicants with hospitality and various forms of assistance, as well as to control them. The conditions for interacting with applicants from Pakistan and Bangladesh have taken place within this framework, as the case of S, a Bangladeshi asylum seeker, shows. By presenting the case study of an asylum proceeding in Italy, this chapter aims to reconstruct the steps of the process through which the subjectivity of the applicant has been textually produced, his status assessed as ‘not rejectable’ and his voice appropriated. As we will demonstrate, the final effect of the complex operations conducted on the applicant’s story is both that of ‘creating’ history as that of reifying his subjectivity by the means of narrative. Moreover, the whole process displays a paradigmatic model of social dynamics that we identify as an ‘excluding inclusion’ (Agamben, 1995). We have analysed the documents produced during the process of S’s claim of asylum and the context in which these documents have been produced and circulated. We have focused our attention on the devices enacted in eliciting, reproducing and elaborating S’s narrative in order to outline the epistemic strategies

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through which different subjects act to accomplish their work. In the last stage of our study, we read the whole proceedings as a complex text. The concept of ‘text’ we refer to is that developed in structural semiotics by Greimas. So, text does not deal only with linguistic expression, but it regards also all the forms in which sense is manifested. [See Greimas (1984, 1985) and Fabbri (1998)]. Our approach, conceives the text as the place where ideas and experiences meet.3 The structural analysis of the discourse allows us to describe the different epistemic roles and attitudes which can be taken and displayed by subjects during the course of the process. In this way we can compare the different ‘practices of judgment’ employed in the proceedings, pointing out the aspects concerning strategic interactions between actors in litigation and, more to the point, the epistemic attitudes of the different instances involved in the proceedings. These attitudes have been observed as a cultural process of knowledge. In our case study, the role of the expert has been twofold and hence could be defined by two formal epistemic stances. The first one becomes apparent as the anthropologist and the applicant carry out the preliminary steps of gathering his or her life story. On the one hand this operation allows the applicant to understand the system he is going to be inserted into (more as an object than as a person); on the other it helps him to produce a narrative in a form suitable for the Italian legal system. The second stance corresponds to the role of country experts who utilize their expertise by working with lawyers to prepare cases for appeal. The role of the country expert is to help the judge by producing objective evidence and assessing the plausibility of the applicant’s story (see Good in this volume, pp.230–3). While country expertise deals with ‘transcoding’ between cultural practices and norms, the collection of life stories operates more as a ‘translation’ of the applicant’s subjectivity. It aims to reconstruct the applicant’s individuality within the cultural framework of the receiving country in each particular case. In S’s case, the above two stances have been enacted by the same person, Tommaso Sbriccoli, who carried out both the field research and expertise work. Although the anthropologist assumed the role of an informal expert, neither his presence nor consequently his authority was officially acknowledged in the proceedings of the trial. However, his contribution was used in the lawyer’s file and utilized when needed. The further analysis, which led to the writing of this chapter, has been conducted with Stefano Jacoviello, a semiotician. Throughout the chapter, as a matter of clarity, we have opted for referring to all these roles as ‘we’. In adopting a discursive approach, we have combined our different competences in order constantly to verify the dialogue established between the documents analysed and the ethnography carried out. Through the entire analytical process we have therefore tackled the object of enquiry by continuously trying to fuse together the methodological and theoretical backgrounds of our respective disciplines, rather than by juxtaposing them. Therefore, as co-authors of this chapter, we placed ourselves at a distance from the process analysed by opening a

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space of enquiry where reflexivity became our common and principal methodological and theoretical tool. As Lash (1994) has underlined: ‘a primary feature of such self-confrontational reflexivity is that holders of knowledge question both the social conditions of that knowledge’s existence and production and themselves, through self-monitoring’ (quoted in Good 2007: 253). This has meant on the one hand giving attention to the position of the anthropologist within the legal field and to the discursive devices through which his knowledge has become crucial in order to assess the credibility of the applicant and of his story; on the other hand, we have interrogated the choices made by the anthropologist in producing such knowledge and compared his epistemic attitude with that of the other subjects involved in the process.

Setting the context In November 2008 the Italian Home Office, with the support of the Grosseto Prefettura,4 selected the holiday resort ‘Il Veliero’ in Follonica for hosting 200 asylum seekers from various countries (Bangladesh, Burkina Faso, Eritrea, Ethiopia, Ghana, Palestine, Pakistan, Somalia and Sudan). They arrived in Italy by sea on the shore of Lampedusa, where they were retained for nine days in a ‘Centro di Prima Accoglienza’ (CPA, First Shelter Centre). They wanted to apply for political asylum according to the normative foreseen by Italian legislation.5 Thus, they had to wait to be interviewed by the Rome Territorial Commission.6 We can trace back the normative origin and the genesis of this centre to the Prime Minister Office’s ordinance no 3703 of 12 September 2008, through which ‘further urgent orders of civil protection for contrasting and managing the exceptional influx of foreign extra-EU citizens arrived illegally in Italy’ are provided. The Italian Government decreed the creation ex novo of new temporary detention centres. This political choice was defended because of emergency rule and supposed shortages and defects in the existing network of helping structures (the SPRAR system7). These new centres had to be established through financing of already existing private structures usually not used for such activities. Thus, the economic logic behind migrants’ fluxes management – the set of principles (either formalized or not) approaching migrations in terms of controlling and rationalizing migrants’ entrance and permanence on national territory – has taken the shape (in this context of ‘emergency rule’ on migration matters) by establishing new private help centres where ‘exceeding’ asylum seekers, waiting to be channelled towards Territorial Commissions (TC) for submitting their asylum interviews, could be placed. The process of claiming asylum remained the same, although hospitality and services were externalized to private centres. One factor that is quite significant to our study, as Malkki (1995) pointed out regarding the organization of and the management practices within refugee camps following mass displacement after the Second World War in Europe, is that the refugee centres emerged ‘as ad hoc, emergency, temporary measures that

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depended heavily on improvisation’ (ibid: 499). In this case too, new models of governing displaced persons have configured within an emergency and improvisation framework. According to the information provided by the newspaper L’Unità on 29 January 2009 in an article entitled Business Emergenza (Emergency Business), the number of private centres financed by the Home Office in the period 2008–2009 was at least 42. These were mainly tourist villages, hotels and structures managed by associations (for example, the Red Cross), which received between €35 and €55 per day per person, the higher amount being almost double that which the SPRAR centres receive, providing the latter with extra and better quality assistance services. This newly created network of emergency camps has thus been placed alongside an already existing system, the SPRAR, which, having started its operations in 1999, became a public integrated help system that activated services for individual asylum applicants thanks to the support and work of various kinds of professionals. The rationale behind this system is that of decentralizing the interventions in asylum matters on national and regional territory through the adoption of a multilayered governance. The SPRAR co-ordination stands with ANCI’s Central Service (the National Association of Italian Municipalities). ANCI selects, through calls for competitive bids, projects submitted by civil society associations to be financed by Home Office funding. These associations have to host asylum seekers in their own structures, providing various kinds of support (including linguistic, medical, legal and psychological support) through the work and expertise of selected professionals. Usually, asylum seekers can avail themselves of SPRAR’s services until they have submitted their interview to a TC. If they are granted a form of International Protection, they can remain in the centres for a further six months (depending on an individual’s situation), sustained by SPRAR workers within programmes of socio-economic integration (including assistance in the search for employment and an autonomous residence). Before presenting the manner in which ‘Il Veliero’ was organized and operated in relation to asylum seekers’ management, it is necessary to describe briefly the Italian legal process of claiming asylum. The first step, either for people entering illegally or legally—or indeed already present within Italian territory before particular events back home made them suitable to be recognized for international protection—is to apply for asylum at a police station near their place of residence or at the port of arrival. Here, applicants have to fill in an application form (Form C3), where personal details and information about family, provenance, religious affiliation, ethnic and national origin, education, languages spoken, profession and reasons why asylum is claimed are asked. If a more detailed account of an applicant’s story is given or collected, it has to be attached to the form. In the case of foreign language speakers, an interpreter has to be provided to applicants. According to the statements of Follonica asylum seekers, during the first interviews carried out by police in Lampedusa, the interpreter for Arab-speaking applicants was a Libyan man. For many of them, to have their

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case presented through such an interpreter, one with a Libyan accent, was traumatic and offensive after being detained for months (in some cases even years!) in Libyan camps. Often they were tortured, raped or mistreated by soldiers and policemen. Situations such as these, whether intended or not, cause discomfort and tension among asylum applicants. This makes the already unbalanced and difficult procedure they are going through much harder to bear. After collecting C3 forms, the police officers transmit applications to the appropriate Territorial Commission, which has to interview asylum claimers as soon as possible, even though usually applicants have to wait between three and twelve months and sometimes even longer before being heard. In the meantime, applicants without documents or who enter Italy illegally have to stay inside appropriate structures and centres such as the SPRARs already described, or CARAs, places quite similar to detention centres. Police officers have, under this respect, great autonomy in choosing where to send an applicant, basing their decision mainly on the credibility of the identity claimed by each asylum seeker. TCs are chaired by an officer of prefecture and composed of a police officer, a representative of territorial institutions (municipality or State-Cities Conference) and a representative of UNHCR. Interviews of applicants should be carried out by all the members of the commission together, although often, in order to speed up the procedure, only one is present. Idiosyncrasies of individual officials are thus amplified. Furthermore, the risk of the individual officers applying different standards while gathering information and judging the case occur more easily owing to the interviewers’ diverse backgrounds. The risk of this happening increases if we consider that applicants almost never have the chance to hire a legal representative to support them in this context. A new normative framework has been developed with Law 251/2007 which, implementing EU Directive 2004/83/CE, has introduced ‘International Protection’ as a legal category articulating itself into two forms: refugee status and subsidiary protection. While the former is granted on the basis of the 1951 Convention’s definition of a refugee, the latter is conceded to a ‘foreign citizen who does not fulfill requirements to be granted the status of refugee, but towards whom well founded reasons exist to believe that, if he went back to his homeland […] he would run an effective risk to suffer serious harms […] and who is unable or, owing to such risk, is unwilling to avail himself of the protection of that country’.8 Territorial Commissions have power to grant both these forms of protection, acting within the international normative framework on refugee matters. As we will see later, this distinction is fundamental to understand the way normative frameworks, narratives and ‘objective facts’ have interacted in S’s case in constructing the simulacra of subjectivities. If neither refugee status nor subsidiary protection is granted by the Territorial Commission, applicants can appeal in the civil courts, which act with a single presiding judge, within 15 days from the date of rejection. In the case of a further refusal, it is still possible for applicants to appeal at the Appeal Courts and, finally, at the Highest Court of Appeal (Corte di Cassazione).

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As other scholars have underlined (Good 2007, Vacchiano 2005), the principal evidence most asylum applicants have at their disposal is the personal narration of their own stories of persecution. As Vacchiano (2005: 90) has further noticed, refugee status in Italy is mostly granted by TCs in relation to the capability of the applicant to produce a ‘justified traumatic story’. Rather than demonstrating the risk of potential traumas, he should therefore certify those he has suffered. Such considerations will appear evident when analysing the epistemic attitude of TC interviewers toward applicants. In Italy there are at least two opportunities for asylum claimers to tell their stories: first, when filling in Form C3 and, secondly, in front of a TC. It is mainly comparing these two narratives and trying to find incongruities and contradictions by questioning applicants that a TC assesses their credibility and decides whether to grant international protection or not. Within this legislative framework, Italian Government ordinance has thus allowed the temporary establishment of new kinds of Help Centres. ‘Il Veliero’ was (and still is) a private structure used in summertime as a tourist camp. The arrival of almost 200 asylum seekers, who had to be hosted for five months, provided the owners with an unexpected income in a low season period. In the discourses and the practices of the manager and workers at ‘Il Veliero’, asylum seekers were seen as ‘customers’, even if of a particular kind. They were considered to be people who had to be handled and taken care of from a purely economic perspective. Thus, expenses had to be lower than income, and services provided had to respect only a minimum standard of quality. Those ‘secondary’ services, whose absence was considered as money saved not affecting customers’ basic necessities, were all excluded, although they were part of the contract signed with the Home Office. Except for medical assistance, other services such as Italian language lessons were provided only owing to the intervention of voluntary work by external associations. Psychological and legal support was completely absent. Moreover, asylum seekers were distributed in bungalows and managed according to national and ‘ethnic’ associations. In a very short time, most of the people working at ‘Il Veliero’ started stereotyping the asylum seekers according to preconceived essential characteristics of each ‘community’. Observing this process during the time we spent there allowed us to understand in the field how modern institutions work in the creation of standardized ways of managing people, shaping subjectivities both of those who manage and of those who are managed. The bypassing of the SPRAR system has therefore resulted in a drastic reduction of help and assistance services provided to asylum seekers. This has paved the way for the implementation of a completely economic and managerial approach, which is not entirely absent even in the SPRAR system. The development of this trend over a field as sensitive as that of granting asylum is surely worrisome. At the end of November a convention established between Siena Social Sciences Department, Follonica Municipality and ‘Il Veliero’ opened the camp to a group of anthropologists from Siena University, who were allowed, in order to carry out their own researches, to visit the centre regularly and meet asylum seekers staying there. This peculiar and relatively unique situation of almost free

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external access in the panorama of Italian asylum seekers’ shelters has been the context within which our frequentation of and work with Pakistani and Bangladeshi groups of asylum applicants has developed. Among them, we established a close relation with two young men, Hindu by religion, owing to the fact that they both spoke Hindi.9 They applied for asylum on the basis of being persecuted for reasons of their religious and political affiliations. C was granted asylum by the Territorial Commission, largely because of the substantial amount of official documentation he was able to produce in order to substantiate his case. The application of S, however, was rejected. We have been following his case from the beginning. After being refused we helped him hire a lawyer to make an appeal in the Florence Civil Court and we collaborated with the lawyer until the court’s final decision.

The story of S: elaborating a narrative for the Rome Territorial Commission —They have attacked me and beaten me with sticks, until I fell down unconscious. —Are there documents, pictures, witness statements reporting this? (SPRAR social worker comments on S’s story) During the cold but sunny days which we spent at ‘Il Veliero’ in the winter of 2009, between January and February, we sat inside the bungalows where the Bangladeshis lived, writing down the stories of their escape from Bangladesh. We communicated in a mix of Hindi, Bangladeshi and English. Most of them were not even aware of the proceedings for seeking asylum when they arrived in Follonica. We were told by some of the informants that often the traffickers themselves suggested to them before arriving at Lampedusa that they should apply for asylum as a way to ease their way out of detention centres or to get a temporary visa. This is not to say that the majority of applicants are ‘mock’ asylum seekers. Based on our first-hand experience with them, it is evident to us that the majority of their life stories have the potential to meet the requirements of International Protection. What we would like to underline here is that the scarce legal knowledge of many migrants about their rights, and the best legal way to have them recognized, places them from the beginning in a position of subalternity and weakness in their arrival countries. Thus, our first priority was to explain to them what applying for asylum meant, the requisites and conditions of asylum and the steps of the procedure according to Italian law. As soon as they began understanding the situation, their life stories became the focus around which they concentrated their attention, hopes and anxieties. At the same time, as anthropologists, collecting their life stories became an activity deeply different from the one we were used to carrying out in our fieldwork prior to this. There, we were asked to be methodologically prepared and very careful about the context within which those stories were told and ‘lived’.

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Our interpretation had to be theoretically grounded, and we were supposed to clarify to the informants the scope of our research and questions. Here, in Follonica, we were directly asked by informants to evaluate their stories, which had to be scrutinized according to external principles unknown or unclear to them (and partly even to us!). They wanted to know if they had any chance of being granted asylum and asked for advice on what they could do to strengthen their position and their credibility. It is important to point out the fact that, at least in the direct relations and exchanges we had with Follonica asylum seekers, nothing was either invented or created ad hoc. What was in effect occurring was a continuous negotiation of life experiences. We never asked the people we helped if their stories were true, nor did we try to verify through anything resembling interrogation if they were lying or inventing facts. We always believed this was not what we were supposed to do. Should we be asked to report an impression that we had during these ‘negotiations’, it would be about the coherence all the stories held, although it should be mentioned that we expressly communicated to some of the applicants that their cases were rather weak for being granted asylum. Life stories were told and commented upon. In a peculiar and sometimes unreal atmosphere that would be beyond the scope of this chapter to describe in detail here, together we analysed facts, traumatic events and the contexts within which they happened in order to understand if they could fulfil the international requirements regarding ‘who is a refugee’.10 With regard to this stage of our activity, our work could be seen as similar to that of a lawyer. Partly that is what we were doing in preparing the case. Nonetheless, the experience of the anthropologist in dealing with personal narratives, his methodology and his knowledge of the cultural context of the people involved allowed not only an ‘easier’ collection of information but also, and this is a crucial point, it permitted a process whereby events, explanations and data not immediately provided by applicants could bit by bit surface and become salient for the understanding of their story and causality. The following text and context analysis will further elucidate how the anthropologist’s position was formulated here. Owing to the fact that legal assistance was missing inside the camp, we decided to contact a social worker in a SPRAR centre in Florence. She helped us by providing legal feedback on the stories we sent to her. She pointed out either weak parts in the cases, or those which needed to be strengthened through official documents in order to corroborate narratives with ‘facts’. So, reading narratives in the light of legal principles, we tried to improve credibility by obtaining documents (medical certificates, police reports, pictures) – which could be sent by fax or mail from the country of origin – in order to substantiate at least some parts of the stories. Our feeling was that we were objectifying fluxes and pieces of life into linear narratives, whose consistency would have been reproduced with difficulty by individual applicants alone in front of the TC. It is within this context that we became particularly interested in the case of S, who had filed a claim for political asylum based on persecution for reasons of

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religious and political affiliation.11 According to his own story, he had run away from his country because of continuous attacks and threats against his person, his family and his property by militants in Jama’atul Mujahideen Bangladesh (JMB), an Islamist formation carrying out an armed struggle. The fact that he could speak good Hindi allowed us to communicate directly with him without the help of another Bangladeshi applicant, C, who spoke both Hindi and English and helped us in collecting the stories of the other Bengalispeaking Bangladeshis. Our interest in his case was therefore rooted both in our linguistic ‘affinity’ and in the higher chances of success we saw in S’s story. Therefore, we decided to focus on the preparation of his file.12 The first step was eliciting his story, on whose basis we eventually collected material and a bibliography in order to provide the TC with precise information about the political situation of Hindu citizens in Bangladesh. The following transcription, which we partly wrote down during two interview sessions, translating directly from S’s words in Hindi, and which we later shaped into a linear narrative, is the first textual ‘object’ we present. It is also the starting point for analysing, through the text itself, how S has been built up as an object of knowledge through different discursive strategies and epistemic attitudes. My name is S., I was born in […] on […], in […] District, under the Police Station (Tana) of […]. My father’s name is […], my mother’s […]. My father died of a disease in 2002. I’ve an elder sister who is married and one sister and one brother younger than me. My family and I are Hindu by religion. I went to school until 8th class and I’m able to read and write in Bengali. I left the school to help my father in the family shop when he became sick. I got married in […], and my son was born in […]; his name is […]. My problems started on 20 October 2005. Before then I had only few problems for the fact I was a supporter of Awami League. That day there was a meeting of my Party. I was organizing some cars in my village to bring people to the meeting, when some supporters of another Party assaulted us saying that our meeting shouldn’t take place. They were of JMB and interrupted everything, and beat us with sticks. Later, in […], as I was in my temple, Milon Mandir, for a religious function, 10–15 members of JMB arrived asking us for money not to interrupt our ceremony. But we were more than them, and so we refused to give them money and we chased them away telling them not to come anymore. Two days after, in the late evening, while I was closing my shop, about 10 men came there, some of them were people of the JMB known to me, and the others Muslims of the area. They attacked me and beat me with sticks, until I fell down unconscious. While they were destroying my shop, thinking I was dead, I got up and ran away on the street, where a Hindu rickshaw driver friend of mine saw me covered in blood and brought me to the hospital.

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After spending two or three days at the hospital, I felt better and went back home. I immediately went to the police station for reporting what happened and filed a case against the liable ones. I knew 3–4 people among those who attacked me, and I gave their names. Then, I went to stay at my friend’s house, in a village 70 kilometers far from mine, because in the meantime some death threats had arrived at my home. I waited for some time and I was treated by a doctor. When I completely recovered, I phoned my family to tell them I was ready to come back home. But they told me that some people had come to my home threatening them about me: they said that if I had come back home, they would have killed me. Every evening a man went in front of my house to check if I had come back. In the meantime, police had stopped none of the people I had denounced. One night, while I was still away from my village, some of the men who had attacked me came to my house. My mother, my brother and my younger sister were at home. The men asked them: ‘Where is he? If he won’t withdraw the complaint we will kill him anywhere we will find him in Bangladesh’. My family answered they didn’t know where I was, and so the men beat them and eventually burnt the house using some petrol cans. They told my family that if I did not withdraw the complaint they would kill everybody. When I came to know about this event, I immediately sent my mother and my brother and sister to my maternal uncle’s house, and my wife and son to my father-in-law’s house. Then I explained my situation to a friend, because I really hadn’t got any idea about what to do. He helped me contact a person for organizing the journey to run away from Bangladesh to Europe. I spent $3000 for the journey. I left in July. They came and picked me up by car and they brought me to the sea. There I got on the first boat of my travel. Then we travelled by foot, bus, truck, car, boat, until we reached Libya. From there we got on the boat which brought me to Lampedusa. This narrative appears linear and simple. The voice of the narrating subject is in the first person and flows without interruptions. Emic categories—kinship terms13 or dates in a non-Gregorian calendar—are untied, thus providing a basic ground for translating between distant ‘cultural worlds’, that of a Bangladeshi village and the one within which the TC operates. The scope of this narrative was to elaborate a first-hand account of S’s story to be given to a SPRAR social worker in order to get a feedback on its weak points and its chances of success. Still, this narrative has been produced through a work of negotiation between the anthropologist and the subject (who figures as the narrator). As such the anthropologist’s work acknowledges the difference, sets a border between the two cultural systems and projects itself beyond it in order to break analytical distance. Life story details have been collected following a holistic approach. We selected later, within the broader scope of information, those that were more suitable for the aim. The process of textual reorganization has therefore been taking shape through a

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continuous negotiation with S, aiming at rendering a portrait by which he could introduce himself to the new country. S had entrusted the anthropologist with the task of ‘translating’ his speech into discursive forms understandable to an audience whose epistemic posture he ignored. We, anthropologist and applicant, carried out together a shared interpretation that Severi defines as ‘empirical epistemology’.14 This device establishes the norms of translatability (Lotman 1985, 1994), rather than looking for impossible transpositions of concepts. In this process of story eliciting and textual re-elaboration a translatability of categories and values is sought, which allows at the same time the subject’s individuality to figure, at least marginally, and the social actor’s subjectivity to be understood as relational. Within this framework the causality of the other is given priority. One of the choices we faced at the beginning concerned what aspects of S’s story we had to focus on in order to have a better chance to win the case. S had suffered attacks both as a political activist and for his Hindu faith. We were aware of the weakness of an asylum application based on his political affiliation, mostly owing to the fact that his party, the Awami League, had just won the general election in Bangladesh. Still, in S’s reporting of his own story this aspect was always central and he felt that all his problems had started because of that. At the same time, his religious faith was in our opinion the crucial fact explaining his persecution, in as much as it became the reason for the Islamist groups of his area to question even S’s rights to participate in the civil and political life of his village and country. At the end, we discussed and advised S that he should give particular weight to the religious issues lying at the basis of his persecution during the interview so that the commission would be aware of the importance of this aspect. At the end of this process of negotiation, the work of the anthropologist and the choices made with S have materialized in two directions. The first was the preparation of the file presented to the TC in which objective evidence concerning the political situation in Bangladesh was collected and produced in order to corroborate S’s story. The file included documents, international dossiers and a bibliography concerning Hindu Bangladeshis’ situation of persecution, a Bangladeshi newspaper article which reported the murder of a Hindu priest (who was a maternal uncle of the applicant) and documents giving evidence of the internationally recognized status of ‘Islamist terrorist associations’ of the groups persecuting the applicant. The anthropologist’s work was useful inside the TC room because it highlighted to S the priority criteria of evaluation and provided him with crucial knowledge about the points of his story whose importance and meaning could be misinterpreted or misunderstood by the TC interviewer. S had to act as his own expert witness, on the one hand by presenting and explaining the political situation in Bangladesh in relation to his case using file documents as support, and on the other by being prepared to manage possible misunderstandings and misinterpretations of parts or the whole of his story.

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The commission’s strategy: verification The Territorial Commission: […] Noticed that the applicant reports circumstances which entail doubts on veracity and credibility of what was asserted, as well as on the grounding of his application; deemed that reported circumstances could not be considered suitable for sufficiently supporting and justifying a fear of persecution under Art. 1A of 1951 Geneva Convention; noticed that need of complementary measures of protection doesn’t apply in relation to the specific personal case of the applicant. Determination: Not to grant international protection. (The Territorial Commission’s denial of S’s application) The transcript of the Rome Territorial Commission’s interview occupies five pages and is presented as a faithful translation of the applicant’s words. The presence of an interpreter, certified at the end of the document by a signature, guarantees the accuracy and veracity of its content. The text shows S’s translated words, in a regular font, interrupted here and there by questions written in italics. We quote a brief part of the commission transcript in order to make clear the way it is constructed: Have you ever been stopped by the police in any of the countries crossed in the journey to come here? While we were crossing Sahara Desert some soldiers stopped us, but the traffickers who were with us paid some money, and they let us go. It took almost a month to cross the desert. Sometimes we stopped two, three days. Sometimes they gave us some food, sometimes not. Presentation of the asylum application in Italy I made official my application for political asylum in Follonica. Ethnic group: Bengali Religion: I’m Hindu. Political orientation: Yes, I was a member of the Awami League, a simple activist. The first part reproduces Form C3 questions, including the date of arrival in Italy, religion, ethnic group, nationality, and so on. Throughout the whole document, we get the impression that questions are extremely impersonal, depending more

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on an established protocol rather than on the applicant’s answers and particular story. The bulk of the narrative starts at page 2 and continues for two and a half pages without interruption. It follows the question: ‘Personal and family situation of applicant in country of origin’. The story is told in the first person, and it is longer than the one previously presented. Nevertheless, it appears quite impersonal and focuses almost exclusively on issues related to the political and party affiliation of the applicant. The next question, on ‘reasons for leaving the country’, gives the impression of a distrustful catch. The answer of S, ‘for the above mentioned reasons, political problems – I have been attacked many times, even in my place of cult I’ve been threatened and money has been extorted from me’ (italics added) – nullifies the strategy of claiming asylum on the grounds of persecution for religious reasons. After the long discussions we had with S on the importance of focusing on the religious persecution he had suffered, this answer (was this really the answer?) compromised his entire case. Nonetheless, the second part of the answer seems to show the attempt made by S in shifting the discussion towards a part of his narrative which had until then been completely disregarded. The reported answer, indeed, clearly mixes two opposite registers: the legal jargon interwoven with traces of S’s direct speech. Throughout the entire interview’s transcription, the applicant’s voice is often concealed by the TC’s, which stands out in bureaucratic formulae difficult to ascribe to an applicant’s discursive style. The result is a hybrid ‘polyphonic’ discourse whose effect is the neutralization of individual subjectivity of the asylum seeker. This is accomplished through the standardization of linguistic utterances in the style of writing used. After this point the questions become more precise, asking for specific details. The interview takes on the character of an interrogation. The interviewer proceeds with continuously changing points in the issues enquired about, explicitly seeking contradictions in the information provided by S, often with success. As an example of this way of proceeding, we quote here a passage of the interview transcripts which exemplifies what we have defined before as looking for impossible or improbable transpositions. The interviewer asks: ‘Your party which political position occupies, what ideology, left-wing, right-wing, progressive?’ The answer of S, ‘It is a right-wing party’ is indicative of how much such kind of questions could be dangerous for the applicant’s credibility. His party, the Awami League, is considered left-wing and progressive according to Western political categories. Questions aim at collecting ‘clues’ on what internal and external coherence (of the life story) can be assessed.15 The epistemic strategy of the TC consists implicitly in extrapolating details from the statements and producing a set of singular clues or signs which can be crossed in search of a contradictory one-to-one correspondence. Discursive syntax appears broken and overall causality is set aside in favour of the construction of what we can term ‘casualness’. If it is the anthropologist’s function to attempt to reconstruct causal connections related to the applicant’s life, it’s the TC’s function to select clues in order to verify their mutual coherence.

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The pertinence of S’s story in relation to persecution on the grounds of political reasons definitely falls down when, requested to give information about his party in Bangladesh, the Awami League, he admits that it has just won in the national elections. Logic and semantic contradiction of these assertions disqualifies their value independently by other possible causal connections. In order to be granted asylum, at this stage, only humanitarian issues are left. After a contradiction is raised, the commission submits other assertions to a ‘test of truth’. This process, which we can refer to as ‘verification’, consists in selecting a reference whose truth could be verified through coherence tests, signs and documentation produced personally by the applicant. In this case, the TC objects to the truth of S’s personal details,16 detecting contradictions between his various assertions about the violence suffered and unhappy with the absence of documents proving his faith and stay in hospital. Finally – and we will return to this point – when S begs the TC to refer to the anthropologist’s file, the commission functionary does not accept it as valid evidence. In the process of establishing ‘facts’, the commission interviewer displays a ‘semiological’ attitude, in as much as he supposes that single clues can be established as proofs only when, as symptoms, they show a motivated relation with their referent. Thus, reaching for the truth of symptoms, the strategy of the TC interviewer is that of falsification of clues. He aims at demonstrating that ‘what appears is not’: that is, statements are contradictory, appearances are misleading and it is not possible to relate narrated things with supposed ‘facts’. As a consequence, all the signs and statements lose the status of ‘clue’, becoming evidence that is not pertinent. Through this discursive and epistemological strategy, facts are built only on the grounds of what is verifiable in the very moment of the interview. In this way, the temporal, spatial and historical ‘elsewhere’, which is the original context of applicant’s story, is erased when there is no chance to encounter it by signs which are present in the ‘here and now’ of the interview. What in English asylum proceedings is defined as ‘objective evidence’, and in Italy can be identified in so-called fatti notori, is used by the TC as a repertory to be contextually activated rather than a context in which to read applicants’ narratives.17 The TC’s strategy inhibits the possibility for other instances to collaborate in producing evidence. For this purpose, the mere presence of the applicant, his body (his appearance, wounds, scars, demeanour) and what he brings with him (documents, certificates etc) acquire relevance as something directly linked to him, his story, his presence as a symptom of something else(where). It is useful to quote a short part of the interview transcription to make the point clearer. TC: Do you believe you would meet problems if you went back to your country?

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S: If I went back they could kill me, a JMB member told me that they will find me everywhere in Bangladesh. One of my uncles has been killed by JMB. I don’t know how many members JMB has; I give you some documents for letting you know the number of JMB members. I’m scared of going back to Bangladesh. TC: Are you aware of the content of the documents your friend has downloaded. S: I can’t understand Italian and English languages. TC: Further elements applicant wants to report. S: Please, read enclosed documents. (emphasis added) Immediately after S had lost the chance to conduct his own story in the direction he thought was significant for him, he also lost the support of the file as well. He lost it by letting the interviewer decide what aspects of his narrative were important. After being requested to read documents presented in the file, the TC functionary makes a question which is clearly supposed to discredit its value and credibility. The expressions ‘your friend’ and ‘downloaded’ – probably pronounced by S in a part of conversation which is not reported – invalidate the importance of the file in so far as it cannot be linked anymore in any ‘essential’ way to the applicant. It comes from a friend and from the web, and therefore does not possess any authoritative status. At the end of the interview the file is given back to S by the TC officer. The latter justified the act by explaining that the commission already knew of that file, since they had received a similar one some days before in relation to C’s interview. (C was granted refugee status due to the file.) S’s file was actually different from C’s and was prepared according to S’s particular story. Nonetheless, it was not considered to be credible nor even worthy of a superficial reading. International protection was finally denied to S owing to ‘doubts on veracity and credibility of what was asserted’.

The lawyer’s strategy: constituting credibility In this case, the suppression of [democratic] freedoms has to be considered as a well-known fact, according to inferred circumstances and produced documentation! (Lawyer’s file: 17) Soon after the rejection, we contacted a lawyer to appeal the TC’s decision in the Florence Civil Court. Along with S and C, we met the advocate in his office, where we explained to him the case and showed the file we had prepared. Meanwhile, in the process of preparing the file for the appeal, we acted as informal expert witnesses, providing the lawyer with information and support while he transposed S’s story into a formal legal framework. In the meantime, new

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documents had arrived. They were pictures of S’s sister and brother bandaged in a Bangladeshi hospital bed, a certificate from Milon Mandı-r attesting to S’s Hindu faith and the aggression suffered, a certificate from S’s village mayor attesting to his residence, name and identity, and asylum documents that S’s brother-in-law had been granted in France. The trial had two hearings before the judge’s final decision. The first one focused on procedural issues and the submission of evidence. The second one focused on S’s final deposition about his case. The lawyer’s file is 20 pages long and builds a complex narrative by rearticulating the facts which emerged in the TC’s interview, as well as presenting old and new evidence regarding S’s story and Bangladesh’s political situation. The syntactic order, which arranges the evidence by causality, gives a new form to S’s life story and establishes the applicant’s subjectivity as objectified within the discourse. The use of the third person in describing S’s story is just a more obvious tool to objectify S’s personality in the narrative. The linguistic debrayage sets S as a subject into discourse, but the objectifying process of S’s subjectivity is achieved by the means of a complex system of narrative devices dealing with the constitution of S as a textual category, provided with modal competence (see Greimas 1984: 45–110). The lawyer’s file sets all the events on spatial and temporal dimensions, which allows him to express the aspects of S’s experiences. His movements configure a topography so that distances between visited places in Bangladesh become intelligible. Spatial articulation is related both to events and to the social relations of S in order to make explicit the reasons for his movements. According to the lawyer’s rendering, S never appears to be afraid of what is happening to him. He is able to assess the risks and is concerned with his future. His travel is compared to an odyssey, a difficult journey which foresees a return. Thus, the action of mise en discours ascribes the dimension of ‘event’ to the narrated facts, setting the story as the place of convergence on which multiple points of view, experiences and related temporalities meet and cross. The lawyer introduces in his discourse the various epistemic instances involved in the trial, attributing to each of them a specific competence. Given that ‘evidence’ is ‘something which somebody must be able to see’, the lawyer’s discourse articulates the forms of this competence in relation to the subjects participating at the trial. In his file, the lawyer begins by pointing out that certain information (including the surname of the applicant) has been wrongly filed in the Form C3 and eventually not formally corrected by the TC. By substantiating his point with new documents provided by the applicants, the lawyer subtly points out the errors made by the TC in evaluating the information elicited during the interview. Then, the lawyer continues by using the expertise of the anthropologist in order to provide the judge with the necessary knowledge to understand the historical and political

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background upon which the applicant’s life story needs to be contextualized. Only after this has been done is S’s story told. The lawyer links the applicant’s political and religious persecutions as causally related events, in striking contrast with what happened during the TC’s interview. On the basis of reported facts, the TC’s decision of rejection is then contested as illegitimate; its justification is deemed as contradictory and illogical. Next, the lawyer proceeds to demonstrate how S’s case could be matched with the international and national normative on granting asylum and protection. The fundamental turning point of the file, quoted below, manages to articulate the three principal instances of the trial with only one word: The actor, otherwise than what deemed by Commission, has described, unfortunately, a situation perfectly matching with normative matter in hand, that is one of an indiscriminate violence in a context characterized by a hard religious and political conflict. (emphasis added) By means of a rhetorical trick, the lawyer expresses an assessment on the credibility of the story which displays for the judge a discursive simulacrum to associate with. At the same time, in opposition with the savoir faire ascribed to the judge, he displays the role of the Commission, which was not able to recognize the evidence due to its semiological attitude. One of the most interesting aspects of the lawyer’s narrative strategy lies indeed in his subverting the TC’s epistemological stance. If, in the latter case, falsification was implicitly adopted as the way to assess the ‘truth’ – and the central problem was that ‘what appears is not’ – then here the lawyer bases his reconstruction on the stance, normatively sustained, that ‘what doesn’t appear could be’. So he chooses to disclose it in the folds of the narrative. The epistemic movement proposed by the lawyer is grounded on the fact that in matters of constitutional asylum and international protection the burden of proof is attenuated (see Italian Civil Code Article 2729 and Code of Civil Procedure Articles 115 and 116). According to these latter references, ‘once the judge becomes acquainted with general well known secondary facts, he infers from them the existence of the principal unknown fact’ (Cassazione Civile 17 April 2002, No 5526, quoted in lawyer’s file). By calling attention both to the shared knowledge about the attested facts regarding the Bangladeshi political situation and to the provision of law, the lawyer projects on the instance of judgment an ethical duty which should motivate the evaluation. If the TC’s strategy aimed at establishing the truth value of the single issues in order to assess the credibility of the applicant, then the lawyer’s operations set within the discourse itself the condition of credibility of the narrative. During the last hearing, while S was again telling his story to the judge, the lawyer pointed out the trembling hand of the applicant, treating it as a symptom of the fear still provoked by remembering the traumatic events which occurred.

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With this key move, the lawyer finally manages to put the objectified subject of the narrative together with the individual present ‘here and now’, assessing thus the truth of the subject. The subjectivity of S produced throughout the trial is not so structurally different from the previous ones. The discursive practices constitute S and his life as an object of knowledge, introducing his subjectivity into the network of relations between the true and the false (Foucault 2001: 335). Nevertheless, S is now no more a foreigner landed on our shores who can be accepted or rejected according to his capability to make his features fit with the requirements of our categories of refugee. He is now no more a ‘set of clues’, but rather, he is somebody who tells a story whose credibility needs to be evaluated. Against the semiological attitude of the TC, the lawyer’s semiotic strategy builds up the individuality of S within the discursive categories of the hosting society. He reduces the distance between the moving border of cultural translatability and the legal discourse categories. In this in-between space the textualized subjectivity of S emerges.

The judgment: when narratives become facts In the light of above reported circumstances, it is deemed that a downright persecution suitable for granting refugee status is not configured, but [it is deemed] that well founded reasons exist to believe that, if he went back to his homeland, the appealer would run an effective risk to suffer serious harms, in particular a concrete threat to his own safety deriving from indiscriminate attacks happening in his country against the Hindu community, to which he belongs, attacks taking place within a context of armed conflict. The Court therefore deems that subsidiary protection should be granted to appealer, according to art. 14 D.Lvo 251/2007. (Appeal decision at Florence Civil Court) The appeal decision occupies five pages and grants to the applicant subsidiary protection. After acknowledging the amount of documents provided, the court establishes definitively the true identity of S. His name and surname are now sanctioned according to the request formulated by the lawyer. Then, she proceeds to give the justification of the decision. Although accepting violence suffered and most of the events narrated by the appealer as proved, the judge does not recognize S’s narrative as a story of individual persecution. Rather, she grants protection to him as belonging to a general social category at risk within a context of general armed conflict, that is, Hindus persecuted by Muslim ‘fundamentalists’ in Bangladesh. In the words of the judge: As regards the general situation of Bangladesh and of appellant’s region of provenance, from the documentation produced – not contested – it comes out that the Hindu community is subject to attacks and acts of discrimination and

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human rights violations by Islamist extremist fundamentalist forces, and that facts analogous to those occurred to appellant are widely spread and assume connotations of armed conflict. (Judge’s decision: 4. emphasis added) A particular relation is established between the ‘here’ of the hosting country and the ‘there’ of the applicant’s homeland, a state which is not able to safeguard its own citizens’ human rights.18 The judge disqualifies S’s reporting of his political party’s problems as the TC already did and accepts only the religious persecutions narrated as relevant and credible. So the applicant’s position switches from political asylum to subsidiary protection. The attempt made by the lawyer to link these two sides of S’s story therefore fails. Even if the judge acknowledges as credible the facts regarding S’s episodes of aggression, she recognizes S’s persecution as not based on his individual and particular case, but rather as a result of a typical situation. The lawyer attempted to present events as a process through which S, owing to his political commitment and religious faith, came to be identified as the individual and specific target of violence by Muslim fundamentalist activists. In other words, it was S, and not a general ‘Hindu subject in Bangladesh’, who was persecuted. In the judge’s final decision the historical and political background acquires a predominant position. The adequacy of S’s story and the objective evidence provided by lawyer (along with the country expert) made possible the generalization which transformed S’s story into a prototypical case. The process through which this ‘adequacy’ is built is what can also be referred to as ‘assessing plausibility’. That is usually the task given to the country expert (see Good 2007). In this case, however, adequacy has been built by the insertion of ‘objective evidences’, and through their contextualization in relation to S’s particular case, within the lawyer’s file itself. The expert anthropologist has collaborated only in an informal way in producing this knowledge. According to the judge’s evaluation, the episodes to which S was subject are credible because Bangladesh is notorious for events such as these happening to Hindu citizens. Moreover, the fact that the content and authority of objective evidence has not been contested by the prosecutor makes the evidence acquire a more solid truth value. This latter in turn influences the judgment of truth on the whole story. The applicant’s case and the knowledge of the ‘objective evidence’ concur therefore in producing a historical framework in which S’s story itself is finally projected. The historical context, in which the case of S is inserted, is reconstructed so as to be rendered pertinent to the features of the case itself. Through this circularity, legal decisions not only can be seen as ‘creators of fact’, as pointed out by Rosen (1989: 19), but also become creators of ‘history’. Moreover, within this epistemic process, S’s subjectivity assumes a historical dimension at the same time as it is reified in a category.

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If the objectified textual subjectivity in the lawyer’s file is constructed as credible, the reified subjectivity presented by the judge’s decision assumes a truth value which, even if built within the ‘rules of the trial’, exceeds the function of the legal judgment and affects the shared knowledge of the world.

Conclusion According to the discursive approach proposed, the cyclical mirroring between the analysis of documents and of the circumstances of their production has allowed us to detect how events narrated by the applicant have been submitted to different tests, which in turn have constituted their epistemic values: veracity, credibility, plausibility and factuality (this last value is concerned with what is actually the case rather than interpretation of or reaction to it). So, if the aim of the TC was that of verifying singular clues in order to assert the status of reality of their referents, then the lawyer’s file sewed up those clues with the objective evidence according to the rules of a complex narrative syntax. In the first instance, results of verification allowed the TC to assess the credibility of the applicant (considering him as a witness or treating him as a liar). In the second one, narration could enrich itself with new pertinent semantic selections in order to broaden the universe of references. In this way, the narrative itself was made the field of investigation for the judge, in which he had to look for further evidence in order to assess credibility. The lawyer’s discourse devices displayed for the judge the traces of an evaluation to be confirmed by the pertinence of narrated events, clues and well known facts. The adequacy of the lawyer’s narration with regard to objective evidence provided (informally) by the expert ascribed the value of plausibility to the narrated events. Once credibility is established in this way, the last epistemic operation – to be enacted by the judge – is to transform narrative into facts, by projecting it onto the historical horizon. In the decision handed down by the judge, S’s narrated actions fit into the temporal dimension of history and become ‘proven facts’. The dialogue established between narratives on the one side, and normative and political expectations of the decision-making authority on the other, has shed light also on how asylum claiming can be looked at as a process through which the subject’s identity is constituted in the very moment he enters the new cultural and social universe. Through the various stages of the legal process, S has tried to express his personality. This has been denied by the Commission’s fragmentary questioning, even if traces of S’s voice are here and there perceivable in the interview transcription, much like dissonant notes in a structured harmony. The textualized subjectivity produced by the lawyer is, instead, an instance which the applicant has to compare with, accepting it as a possible ‘self’. The case discussed by McKinley (1997) is a perfect example of the way these textualized subjectivities have to be appropriated by asylum seekers in order to conform not only with normative expectations, but

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with moral and cultural expectations as well. The final verdict, ascribing what pertains to S’s individuality to the generality of a category, has overlapped, once and for all, the ‘voice of the law’ to that of the applicant. The judge’s decision is indeed the only written text analysed where S’s voice is presented in the form of direct speech quoted between quotation marks. By this device, the emerging of the voice produces the effect of a witness testifying the truth of the judge’s reconstruction. The voice of the applicant is thus built, throughout the whole process, within different discursive devices which neutralize, subsume or appropriate it. However, they all place it in a subaltern position in relation to a legal, political and cultural framework to which the applicant is forced to adhere. The space opened between the story collected by the anthropologist and the ‘actual facts’ established by the court clearly shows that the ‘elsewhere’, the landscape along which the subject is projected, is completely built within the cultural categories of the host society. This process produces the ‘refugee’ as a liminal social category, a stranger not rejected but protected, a subject included through exclusion. The strength of this hegemonic device lies indeed in its generative force, its ability not only to tell and reproduce the world for others, but to produce it for itself as well. The analysis demonstrates that the procedure of asylum recognition does not stand with the potential transcoding of fitting categories belonging to different legal codes and cultural systems. Rather, the process of claiming asylum shows the stages of an intercultural translation producing, for all those involved in it, a new belief about the state of the world.

Notes 1 Official figures of applications are available from 1999. The total number amounts to 134,207. 2 See Dell’Agnese (1996), van Aken (2005) and Ravenda (2009) for a discussion on how the Albanian 1990–1991 mass exodus towards Italian coasts (Apulia) has been managed by Italian Government, resulting in the implementation of the Italian shelter and integration system for asylum seekers. 3 The source of this conception of text is rooted in Luciano Berio’s Norton Lectures, where he defines it as ‘a document of an investment and of an encounter of ideas and experiences’ (2006: 8). 4 Prefetturas are the Italian Home Office’s territorial bodies at the district level. 5 Italy, together with France and Germany, is one of the few EU countries which dealt with asylum rights within their Constitutions. Today, however, it is the only EU country missing a unique and organic law on asylum, which is now mostly granted under the 1951 UN Convention relating to the Status of Refugees and the European legislation implemented to ‘harmonize’ the differences among national asylum regimes of EU countries (for a discussion of the first point, see Lambert et al. (2008); for the presentation of the principal European Treaties and Conventions on asylum procedures, see Good (2007: 47–50) and van Aken: (2008: 32–54)). Current Italian legislation relating to migration matters recognizes such rights and regulates them according to Law 189/2002 and the following decrees implementing and adapting EU directives on the matter.

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6 Territorial Commissions (TC) for the Recognition of International Protection were first instituted by Law 189/2002 (of which there were initially seven, subsequently increased to 10) and were tasked with making initial decisions on asylum claims. 7 The Italian Integrated System for Asylum Seekers’ and Refugees’ Protection (Sistema di Protezione per Richiedenti Asilo e Rifugiati). 8 D.Lgs no 251, 2007, art 2(g). 9 One of the authors, Sbriccoli, has being conducting research in Rajasthan, India, for the past seven years. His knowledge of Hindi has been the primary reason allowing him to interact and liaise with Pakistani and Bangladeshi asylum seekers at ‘Il Veliero’. Pakistani asylum seekers were transferred to a different camp (the CARA of Gradisca, in Northern Italy) in February 2009. For this reason, it was not possible to support them in the process of claiming asylum. 10 Besides matching normative requirements, a ‘genuine refugee’ is often supposed to be a poor, weak, deprived and displaced subject who is running away from something. The media and humanitarian representation of refugees has tended to build their public image as being speechless and depoliticized (see Malkki 1996). All the refugees we met were at the same time running away from something and running towards something else and were often inserted in social networks not dissimilar from those of so-called ‘economic migrants’. 11 Actually, in S’s Form C3 nothing was written about the reasons for S’s application and, until his appeal in the Florence Civil Court (apart from a brief mention in the TC interview transcription), no explicit specifications of the basis under which he was claiming asylum are obtainable in any of the official documents produced by the police or the Territorial Commission officials. 12 Besides that of S, we prepared two other complete files for applicants at ‘Il Veliero’. One was for C, who has been granted asylum by the TC; the other was for a young Muslim man whose application was rejected and who decided not to appeal the decision. To the other Bangladeshi asylum seekers we only provided legal feedback on their personal cases thanks to the help of the Florence social worker mentioned above. 13 As an example, we can here refer to the term ma-ma-, translated as ‘maternal uncle’ in the narrative above. Difficulties in translating and understanding different kinship terminologies and systems are often causes, within courts, of misunderstandings affecting applicants’ credibility, as Good has accurately shown (Good 2007: 170–82). 14 This concept has been discussed by Carlo Severi during a PhD seminar held at Siena University in 2008. Some references to the process of constitution of knowledge and beliefs through shared experiences of individual subjects can be found in Severi 2004 (Chapter 3). 15 According to the UNHCR Handbook (1992) and the Guidelines for the Evaluation of the Applications for the Recognition of Refugee Status by the National Commission for the Right of Asylum (Commissione Nazionale per il Diritto d’Asilo 2005), assessing internal and external coherence of asylum seekers’ accounts is the fundamental requirement in order to evaluate an applicant’s credibility. Internal coherence concerns consistency of an applicant’s statements taken together and with further evidence submitted. External coherence concerns instead consistency of the applicant’s account with generally known facts. For a discussion on these issues, see Good (2007: 187–209). 16 In completing the Form C3, S did not give the police officer his surname but the first name of his father. This was owing to an obvious misunderstanding in the process of personal details collection. Even if S pointed out immediately to the TC interviewer this mistake, the doubt about his ‘double identity’ remained unresolved even in the official document of denial of international protection produced by the TC.

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17 We can here identify those processes of dehistoricisation of refugees which Malkki (1995, 1996) has excellently described, although from a different perspective. 18 As Vacchiano (2005: 91) has pointed out: ‘to be adequately a victim is a necessity, but not a sufficient condition [in order to be granted international protection], because alliance policies between nation states and public level of visibility of conflicts have a fundamental weight on the host country’s judgment in accepting applicants’. In the present case, Bangladesh was a country sufficiently detached from Italian geopolitical alliances for allowing such statements about its internal political situation.

Chapter 9

Expert report writing Professional commitments and legal outcomes Livia Holden

Through a qualitative case study concerning a South Asian Brahman woman who migrated to the USA, this chapter narrates, from the point of view of the sociolegal expert, the exportation of Hindu divorce practices and their accommodation within the legal procedure of an immigration law court in California. Attention is directed at the discourse co-constructed by the client and myself. As an anthropologist studying Hindu practices of divorce, I had been asked to provide an expert report for the appeal case deciding on the refusal of US immigration to grant American citizenship to Savitri, who had been deemed a person of bad character because she was allegedly a bigamist and a liar. On the basis of the narrative cumulatively produced by the social actors directly or indirectly intervening in the case, I analyse the decisions involved in the process of writing an expert report, point out the specific elements of custom that have been mobilized, left out or reformulated within the legal procedure, and I locate the arguments that were heard by the immigration officer. The ethical dilemmas of the multiple and potentially conflicting professional commitments of the social scientist requested to apply anthropological knowledge in court are addressed here by making explicit the options that I faced in the process. This chapter also elaborates on the argumentative devices that are reshaping customary Hindu divorce as ‘cultural’ within the official legal settings beyond India, and it concludes with questions for discussion on the role of the expert report in the legal procedure.

Hindu divorce in India: the socio-legal background to the case Hindu practices of divorce were recognized by the state law of independent India in the Hindu Marriage Act of 1955 (section 29(2)). Simultaneously, that same law introduced statutory divorce for all Hindus. Interestingly, this double option was undermined by mainstream socio-legal arguments according to which divorce does not exist in classical Hindu law. At the same time case law over the last century shows on one side recurrent and varied divorce practices observed by multiple strata of Hindu society, and on the other side that divorce is portrayed as

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equally abominable by the Hindu Brahmanic perspective and by some modernist readings of Hindu positive law. This has been particularly evident whenever customary practices of divorce involve a monetary compensation to the first husband. The monetary transaction between the second and the first husband has led to an equation of customary divorce practices with human trafficking, thereby attaching to them an a priori conflict with positive law. At the same time, whenever customary divorce has been recognized in India, law courts have argued to circumstantiate its legitimacy as exceptional to the overarching ideal of indissolubility, which should apply in principle to all Hindus but especially to the upper castes. Furthermore, it may be surprising that this strict upper caste ideal of indissolubility did not fall necessarily into disagreement with the women’s rights perspective in India. Although for many Hindu women customary divorce practices may be the only escape from an unhappy marriage, prima facie arguments from women’s rights organizations have developed against it. Both traditionalist and modernist trends have successfully supported decisions against customary divorce in India. However, Indian jurisprudence, which is well known for being multifaceted and ultimately able to acknowledge the fluidity of law in action, has nevertheless recognized the legitimacy of customary Hindu divorce. While the denial of divorce among Hindus is a recurrent argument, customary practices of marriage dissolution have been accepted as legitimate in a relatively consistent number of cases, and they are now even finding their way into the legal systems of the countries to which South Asians have migrated. This specific flexibility between rejection and acceptation of customary divorce practices will be at the core of this chapter because its translation in a restrictive or extensive perspective can make a sensible difference to the lives of South Asians abroad. By looking at the discourse elaborated in the process of expert report writing, this chapter will therefore explore the commensurability of Hindu practices of divorce within US legal procedure. Unlike most contributions in this volume, this chapter relates the single experience of an inexperienced ‘expert’. When I was asked to provide an expert report for the case that I am illustrating here, I had no experience of acting as an expert for a legal authority. However, I had studied customary divorce practices in India for approximately 15 years and I was familiar with expert report writing, having analysed a number of them. Savitri, the protagonist of this chapter, is a South Asian Brahman who has by now married thrice and divorced twice, first in India and subsequently in the United States of America, where she has integrated successfully as an IT engineer. When I first became acquainted with Savitri in late April 2007 I was visiting Griffith University in Australia and was occupied with the first draft of Hindu Divorce (Holden 2008). We engaged in a transcontinental correspondence whose extracts I have already published after the conclusion of the case (Holden 2008: 201–9). While I will repeat here the factual details for the benefit of readers, I will also include an analysis of the process of writing the expert report and will show some of the implications of the deontological ethics of social scientists providing cultural expertise. I will therefore elaborate on the options I faced when deciding to take

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up this case at the onset and later on when wording cultural evidence for the immigration court. From a pragmatic perspective, what are the exportable features of Hindu divorce in the American legal discourse? What are our professional allegiances? How do ethics and professionalism inform our decisions? And, finally, what is the role of cultural expertise vis-à-vis legal outcome?

Savitri, the IT engineer Savitri first contacted me by email, saying that she had been refused American citizenship and that her appeal hearing was less than a week away. The facts that she stated were quite basic. She had been close to obtaining American citizenship when she was accused of bigamy, allegedly because her first marriage had not been dissolved in India. Savitri was also accused of having lied to American immigration authorities when she had been granted temporary residence by virtue of her second marriage with an Indian-born American resident. Consequently, she was refused American citizenship on the grounds that her second marriage was null and void and, because she was polygamous and a liar, she did not possess the good character required to apply for American citizenship. Savitri had managed, although barely, to obtain a written opinion from an Indian lawyer, a scant statement, which affirmed the validity of her divorce on the basis of Indian law and jurisprudence. I was asked to write a report supporting the view that her first marriage was either null and void or had been dissolved. I should mention that the difference between the two legal notions was evidently not clear to Savitri. I knew that being contacted directly by the client may be considered unusual or improper, and I was unsure if talking with her would be considered as inappropriate according to standard legal practice. However, I needed to know more to write a report – specifically, what the object of contention was. As Trigger (2004: 25) puts it eloquently: ‘anthropologists […] do not seek or receive “instruction” from “clients”, but rather they carry out consultations, interviews and observations with those whom inform their investigative research’. Hence, although the targeted outcome was reversing the appeal, this information was only secondary to the scope of an expert report, which should evaluate a definite set of circumstances irrespective of the legal outcome sought by the client. On the basis of what Savitri had sent me I could only vaguely conjecture on the customary divorce between Savitri and her first husband. Savitri, however, had not made the slightest allusion to it. What should I have done given the tight schedule and paucity of information that I had? Would refusing to provide my expertise be ethical in the light of my commitment to the subjects of my research as an anthropologist? Would it be deontologically correct to provide expertise on the basis of what I considered as vague facts? The dissimilarity between the approaches of diverse disciplines to the notion of ‘fact’ had never been clearer to me than on that occasion. One can readily acknowledge that legal audiences tend not to scrutinize facts as social scientists do

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(Good 2007: 25–34), and we know that many expert reports rely on data that do not possess the depth of anthropological enquiry (see Good and Vatuk in this volume). The issue could be reformulated as a more significant interrogation on the nature of cultural expertise rather than just a personal ethical dilemma. If, in other words, anthropological expertise is required in view of a legal outcome, as anthropologists we are professionally bound to bring in our specific knowledge, and fieldwork may even be required, as is the case for example for most cultural expertise involving Aborigines in Australia. The issue may then become providing intelligible and useful data for the legal proceeding. A number of options become apparent in this regard, ranging from a specific normative framework for cultural expertise on the Australian model, to various kinds of collaborative multidisciplinarity. In this case, Savitri’s lawyer was not ready to take a formal stance on the matter and had left her client without any other option other than to contact me directly. As we have seen in this volume, this is not rare (see Shah and Menski in this volume). Hence, although aware of the risk of my report being undermined because of the direct communication with the client, I decided to find out the facts from her: ME: Savitri, can you tell me a little bit of your story? SAVITRI: Livia, I told you everything in the emails that you received in the last few

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days … Livia, I am a Brahman … Divorce should be a good option to have for any human being … why not Brahmans? Was your first marriage registered? The date of my marriage was … My first marriage was not registered. Can you remember the rituals of your first marriage? It was a small family wedding. It was a regular Hindu marriage. Regularly there is a fire and a priest, and a marriage is a marriage when the groom ties the mangalsutra [necklace or chain usually containing a piece of gold and worn especially in Southern India by the wife for the first time on the day of the marriage and ideally kept for the lifetime of the husband]. That dignifies the marriage … I do not remember exactly. It would be helpful to know some more details of the ceremony if I have to write a report … It was a legitimate marriage, Livia. This is all I would like to say now … actually … We thought that you may not want to enter in much detail concerning my first marriage … if we could kindly only talk about my divorce … Okay then – [I say, trying to not let my perplexity become evident] – Can you tell me something about your first divorce then? What happened was that my husband’s mother and father wanted money. They demanded money but my father refused. One day my husband’s mother called me while my father was visiting and she said to me abruptly: ‘Return the chain!’ And my father said: ‘Yes!’ He went then to talk to his own brother for advice and they both talked to me. They told me about the strain of the relationship with my in-laws because they wanted money. They had decided

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that it was better to end the marriage. The marriage was not even consummated because I was too young and I wanted to study anyway. So they told me that I should give the necklace back. They gave me some time to reflect to make sure that I could make up my mind. My family is traditional but they knew that I was young and had bright hopes. They said: ‘You make up your mind and in a couple of days you have to return the chain.’ I made up my mind and since the guy [my husband] did not even want to see me, I returned the chain. One day he came to see me at my parents’ house but after that he walked away and he did not respond to my calls or anything. The mother asking for the necklace was a proof that he did want indeed to cease any relationship with me. So I decided to give the necklace back. My father took it from me and he said: ‘Forget it happened.’ He said to me: ‘You are still young. Forget it happened. We’ll take care of you.’ He took the necklace from me, as he would have done with a doll … with an extreme delicacy. I was very upset and so were my parents but they were happy to see that I was safe at home in their care. Although I do not have any evidence of it, I was abused by my family-in-law. I was only 17 and had just finished my High School exams. So it was on one hand fine with me, but on the other hand it was also very sad. I thought to be married and to still be able to pursue my studies and going to College. But when it came to apply for the enrolment my mother-in-law said that there was no use for me to go to College. I complained about this with my own mother and at that point my in-laws started demanding for money. Luckily my parents are totally against dowry in spite of having arranged a child marriage for me. So my father decided for ending this marriage after discussing with my uncle who is kind of the head of the family. After that I was never again in touch with him and I never knew of him again … But you met him again in the United States, didn’t you? Yeah. I married again unfortunately and I had again a bad experience of abuse. I felt at that time that there was something wrong with me. I was already ashamed of being a divorced woman when I only was 17 years old. I did not want to get divorced again. So I put up with it. Then my friends at work realized that I was getting abused and told my sisters and my parents. Then my parents said: ‘No matter how many times you marry but physical abuse should not be tolerated.’ They said that I should speak to counsellors and do this and that … I did all that and did realize that this guy was not worth it. So I left my second husband as well. It is a very sad story but it made me strong … I am very lucky to have good parents and a very good sister. They made one mistake of arranging a child-marriage for me and it took a long time to put up with this. A child-marriage puts a lot of strain on a young girl who is not fully educated and not mature enough to understand. In India there is no way to experience life with a boyfriend. The only relationship with a boy is through marriage. And it is a big thing to be married or divorced. There are a lot of expectations from a married woman and only disappointment

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towards a divorced woman. It did not change yet. One day I met my previous husband who had in the meanwhile also remarried in the States. And after many pressures from my second husband I did ask in the United States for the annulment of my first marriage. I obtained this annulment on the reason that it was a child-marriage. But it was a mistake because when I later went for the interview for citizenship with the immigration officer she asked me why I did not mention my first marriage when I got the permanent residence thanks to my second marriage in the United States. Livia, at that time my husband did everything for me and I could not understand anything. I just signed everything because his lawyer took care of everything. He later insisted that I also ask the annulment of my first marriage and this puts me in trouble now. What else should I say Livia? What else should I tell you? Well, I think that I know enough now for writing this report which will hopefully be useful. I will write that Hindu divorce in India is also recognized by official law with s. 29 of the Hindu Marriage Act. Your divorce was customary ritualized with the return of the necklace of marriage … [I am interrupted by Savitri]. You know what Livia? At this point I am not after the American citizenship, what I want is to clear my name from the accusation of me being a liar and a bigamist. I did not want to ask the annulment of my first marriage because I did suffer with both the men I have married. They are both American citizens today [cynically laughing]. Both men are happy. But nobody should say that I cheated and they should not say that I was married to two people at the same time. For me this is more important than getting the citizenship.

I felt under pressure because of the rapidly approaching deadline, and therefore I was possibly unloading some of this pressure on Savitri by questioning her. We did not have the luxury of paced rhythms and I was disconcerted by the instruction to focus on the customary divorce only. I had thought that by mentioning the rituals of the first marriage of Savitri to her cross-cousin (customary in Southern India) my report might have been more solidly constructed, but I may have relied too much on my academic background. However, a particular remark by Savitri had struck me. It concerned her own lack of awareness regarding the very existence of customary divorce: S:

L: S:

… the funny part, and I think God helped me here, is that I did not know there is a word called customary divorce [I chuckled] … I’m not joking Livia, I’ve studied, I have done things … I did not know there was a word called customary divorce until a United States lawyer told me! So how did you find out? He told me and my sister and my father went online searching for data … Because all Indian lawyers had told me: ‘No! Customary law is not accepted. You committed bigamy and you must face criminal procedure in the US!’

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The above extract will elicit a triumphal reaction among the scholars arguing that divorce does not exist among Hindus, especially in the higher castes (Holden 2008, especially Chapter 1). However, Savitri had also provided all the recurrent details of customary divorce practices. In hindsight it’s evident that I could have stopped collecting information at that point, as I had what I needed for writing an expert report evaluating her account on the basis of my field-research and publication. However, my inexperience was making me particularly preoccupied with Savitri’s reticence to talk about her first marriage. The silence of her lawyer did not help either. I gathered more information during subsequent phone calls. Savitri appeared undecided on whether she should plead the nullity of her first marriage or her customary divorce. Her lawyer, I believe, was keener on the first strategy, but customary divorce and nullity of the first marriage seemed to me opposite and conflicting versions of the facts. Moreover, pleading the nullity of a marriage that had been annulled only after Savitri’s entry in the United States might have been disastrous for her, potentially confirming the very reason for the refusal of American citizenship: Savitri had been a bigamist and a liar. Savitri’s sister, who was studying law in the United States, had convinced their father of the opportunity to mobilize customary divorce as a defence, and in fact (as I came to know after the decision of the case), Mr Tilva, who was considered to be the avatar of a family saint, was also consulted in India. During a trip to India in 2008 I meet Mr Tilva. Apparently it was his wish to meet me and my family and to give us his blessing. But nobody knew the whereabouts of Mr Tilva, as it was his custom to wander freely and to visit unannounced a number of families and acquaintances who consulted him regularly. In the light of that, Mr Tilva showing up in the living room where I was sitting with Savitri’s parents was interpreted as evidence of his spiritual powers. He had the appearance of a marginal person affected by a speech-impairment and possibly some mental disorder that made normal interaction very difficult. However, his inquisitive gaze was striking and his piercing eyes seemed to look at me and at my family with a specific awareness. Sadly, Mr Tilva was killed two days later following a controversy over a place to sleep at a bus station, and our encounter became a painful reminder of the gap that we, as anthropologists, are requested to fill when relating to our audiences. However, Savitri did not tell me anything about Mr Tilva until her case was already decided. She was not initially impressed by the customary divorce strategy. As the above extract demonstrates, she may have not even been aware of the existence of customary practices of divorce in spite of having undergone a customary divorce. Although this may sound paradoxical, those who have experienced communication within the framework of gender and age-group relationships know that barriers do not need to be visible for the people involved to disallow awareness of what is happening. Silence and lack of explicit acknowledgement is often the most effective device to keep facts from entering the family records, unless of course they would need to be reincluded under a different set

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of circumstances. This should not be confused with the absence of written documents that act as official records. It is well known that most Hindu marriages are not registered. Yet it suffices to remember the rituals and the celebration to make them an indelible family record. This is so widespread and socially confirmed that the only need for official evidence may arise when the parties involved come before foreign jurisdictions. Customary divorce, in spite of being sanctioned by rituals, is surrounded by silence and secrecy. Indeed, the whole debate among scholars surrounding the existence of divorce among Hindus is closely linked to the fact that Hindu divorce practices have been rhetorically denied for centuries, and it seems to matter little that they were observed to be widespread even in olden times. But if, notwithstanding the objections to cultural relativism, scholarly anthropological debates can still develop around conflicting perspectives on the same facts, for the purpose of cultural expertise within the legal proceedings, providing the court with opposing expert evidence may not be considered adequate. In other words, judges and lawyers in the various jurisdictions may find anthropological argumentations that expound co-existing but opposite conclusions confusing or irrelevant (Trigger 2008). It would be interesting to see if expert evidence is treated differently in the systems that stress the need to find ‘the’ truth (see Bouillier in this volume) than in the ones where only the ‘procedural’ truth is sought instead. From the point of view of the cultural expertise in court, the issue seems rather one of targeting the relevant truth. Hence, we may ask ourselves if an appropriate selection of data or even arguments, intended as the perspectives of different social groups or same group but at different times, within a given society, is suitable. A closer look at Savitri’s narrative is helpful. One of her first grievances when talking with me on the phone at the very beginning was, without any specific prompting, that divorce may not be considered legitimate for Brahmans. During our subsequent conversations it became clearer that as a Brahman she had serious reservations about disclosing facts that are considered to be immoral within orthodox Hindu society. I should have been aware of that from my field experience in South Asia, but I was unsure if in her case this feature of her moral make-up had persisted after her USA education and subsequent professional experience there. Furthermore, Savitri had acquired the language and the perspective of human rights and gender equality, on the basis of which an arranged and underage marriage is illegal. It took her time, she told me, to accept the possibility that her customary divorce might be the solution to her problem of being granted citizenship. In the meanwhile, Savitri’s sister had herself researched the scholarship supporting customary divorce in India. It was on the basis of the information collected on the Internet that Savitri’s family obtained the following opinion from a Southern Indian lawyer who was also shown my own publication: The judiciary perceptions concerning customary divorce seem to have drastically changed at the end of 1990s. The leading case in this turn around is

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Govindaraju v Munisamy Gounder. Significantly, the Supreme Court have held that it is a fact that the divorce was not known to the General Hindu Law, but then in certain communities, divorce, was recognized by custom and the Courts upheld such custom when it was not opposed to Public Policy. The scheme and object of the present act (i.e. Hindu Marriage Act) is to override any such custom which recognized divorce and effect is given to the same by the saving contained in this subsection. It is not necessary for parties in any such case to go to Court to obtain divorce on grounds recognized by custom. The custom must be of course, be valid custom. Therefore, the finding of the trial court that there cannot be a customary divorce after the advent of Hindu Marriage Act, is erroneous find of Law. The Lower Appellate Court approved the finding of the trial court without applying its mind. From the above sections of Hindu Marriage Act and the judgment rendered by Supreme Court as illustrated above, I am of the opinion that the recognized customary divorce is valid and the same can be applied to the marriage of Ms. … The report of the lawyer, in which I can recognize some of my own wording, supports Savitri’s customary divorce. He, however, could not refrain from stressing the general principle of the indissolubility of the Hindu marriage, although at the same time he revived the well known argumentative device that allows the exception of divorce within certain communities. It is interesting to note the gap between the extent of scholarly knowledge and applied knowledge. One may think that practitioners applying knowledge are closer to the everyday praxis thanks to the contacts with their clients, but as the case of H also shows, the implications of cultural expertise are meticulously articulated and quite complex (see Menski in this volume). Local lawyers as well as migrated members belonging to the same community as the litigant may be influenced by factors such as class divide and contempt for out-of-court practices, or concern for the self-image of the whole community vis-à-vis dominant groups. Savitri herself was not very happy about the South Indian lawyer’s report and seemed uncertain about which strategy to follow. However, in spite of both Savitri’s and her lawyer’s ambivalence over whether to concentrate on the annulment or the customary divorce, I thought the odds were with her. She had become perfectly integrated into American society. She was highly educated, and as well as being able to afford good lawyers, she was relatively confident, dispassionate and assertive in directing their services. Notwithstanding her hesitation she was in fact demonstrating a peculiar ability in navigating between traditional Hindu society and the modernist American society. All in all, she was in a position to explore both angles in order to support her claim before the US authorities. But at the same time I feared that the immigration officer might have mistrusted Savitri’s evidence should she have suggested her options – customary

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divorce and annulment – as equivalent argumentations. I knew of course that my role was not one of a legal adviser. But what if I were able to avoid a potential disaster? The silence of Savitri’s lawyer did not help and there was little time. At such short notice I was unable to enlist the assistance of anyone experienced in such matters. Some kind of corporative attitude prevented me, as an inexperienced expert, to receive advice and support from those of my colleagues who shared the specialist knowledge of the law courts. The only comment that I received from an anthropologist, one frequently called on to provide expert reports, was one of contempt because I was not demanding a fee. ‘The judge’ – he told me – ‘will not even read what you wrote, because he will think that you are not a professional.’ I remembered the words of another socio-legal scholar whom I had met in London some time ago: ‘Most of these cases are only bogus anyway.’ I felt the clash between an academic approach and the legal way of proceeding: the former being lengthy, reflective and analytical, and the latter always under pressure for quick and unequivocal positioning, possibly influenced by the dominant business-oriented perspective that makes only monetary transactions respectable. I was also surprised to realize the double bind of scholarship: critical thinkers in academia and pedant law-abiders in a law court (Herman and Chomsky 1994: 24–25). As Mattei and Nader (2008: 100) say: ‘it is often the case that the critical potential of a discipline is obliterated as soon as the discipline gets institutionalised and transformed into an “industry”’. Was I myself hesitating to provide an opinion based on the research that I had carried out for 15 years on the subject of Hindu divorce? Was I myself seduced by the prestige of the formalism that I scrutinize in my academic writings? In no way was I responsible for predicting the legal outcome of this case. Yet I felt even more profoundly responsible than I do with my informants in the field. A person’s future was at stake, and I felt that my credibility as an academic was also at stake. I genuinely wanted to help Savitri, but it was not just empathy. In fact, if I had relied on my feelings, I probably would have distanced myself from this case, which is the perfect example of how modern cosmopolitan middle-class revives practices that in other circumstances it would firmly deny because they conflict with its universalistic and homogenizing stances (Waghorne 2004). But I also felt that bearing witness on a particular case that was part of my specialization was also my professional duty. I had less than 24 hours to anguish over my fears and formulate a report, one likely to support Savitri’s customary divorce. I decided that I could not ask the United States immigration officer to read more than two pages. This was not out of any contempt on my part, but rather for a concern to provide information that could be realistically perused in a gap of time compatible with the workload of immigration courts. Following the blueprint of the reports that I had read so many times, I drew up the following: […] 4. The present case concerns Ms. …’s request of citizenship to the USA Immigration Services. Ms. … was refused citizenship on the assumption that

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when she married … in …, she was still married to her first husband. … The Immigration Officer maintained that Ms. …’s second marriage was void and consequently she was not eligible for permanent residence at the time of her immigration. 5. On the basis of the detailed description that I received from Ms … I am able to affirm that her first marriage celebrated on the … was legitimately dissolved on the … according to Indian Hindu Law on divorce. The Hindu Marriage Act, 1955 contains a specific provision regarding divorce, which totally preserves the customary system of divorce prevalent among Indian Hindus. The relevant law is found in s. 29(2) of the HMA of 1955: s. 29. Savings:– (1) … (2) Nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act. (3) … 6. The case law that I cited in my papers confirms that the Indian judiciary recognizes that in specific circumstances a Hindu marriage can be legitimately dissolved through customary procedures that vary locally. The following elements described to me by Ms. … are consistent with the usual pattern of divorce by custom in Southern India: repeated requests for dowry by the husband, desertion by the husband, unsuccessful attempts by both families to reach an agreement between the spouses, decision by the family elders on the dissolution of marriage, and final return of the symbol of marriage: a necklace called mangalsutra and received by the bride on the day of marriage. 7. This means that according to the relevant Indian law, Mrs. … validly divorced from her first husband on the … She was therefore free to remarry starting from that same date. 8. I believe that the facts I have stated in this expert report are true and that the opinions I have expressed are correct. I am available for answering any questions. Attachments: article by Holden, Livia (2005) ‘Official policies for (un)official customs: the hegemonic treatment of Hindu divorce customs by dominant legal discourses’, Journal of Legal Pluralism 49, 47–74, and decision by British authorities on a case concerning the recognition of customary divorce. I had decided to avoid disquisitions about Hindu divorce being or not being a custom of Brahmans for at least three reasons, namely: (i) notwithstanding the rhetorical expedients to deny the existence of divorce among Hindus, especially if belonging to higher castes, I have collected first-hand data about cases of customary divorce among Brahmans; (ii) the rhetoric of Hindu castes and the reasons for the

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denial of divorce appear quite irrelevant in the context of modern American society; and (iii) I provided the immigration officer with further readings which she could decide to take the time to read (and apparently did). I followed the conventional scheme of the expert reports, which was offering information on the expert’s academic credibility and experience in the field, the terms of the agreement with the client, the law of the country of the client, the content of the custom, and academic scholarship and case law supporting the expert’s opinion. I thought that the primary element in my report should be the consistency of Savitri’s choices with both US law and with the custom of her country. It seemed to me that ‘consistency’ would adequately express my engagement for the limited purpose of the report, and I felt satisfied that I might, at best, help Savitri and, at worst, I would not damage her position. Savitri appeared personally at the hearing and pleaded that she made the honest mistake of not disclosing her first marriage to the immigration officer when she was granted permanent residence. Here are the notes that the immigration officer made at that time: I got an annulment [of my first marriage] in [the] Superior court of [USA]. I got the annulment because I wanted legal documentation that I was no longer married. I had a religious ceremony in India with [my first husband]. A priest officiated. He [my husband] deserted after 45 days. I was 17 at the time which makes it a voidable marriage plus the groom was age 20 at the time and legal age for males to marry was 21 at the time. Priest married us in spite of age with parents’ consent because of culture. Marriage was not registered with any government. There was a cultural customary dissolving of the marriage. He left. My family tried to contact him unsuccessfully. I returned marital necklace to his family. Elders of his family and mine got together and decided that the marriage was over. No certificate was issued by the families. Both [my first husband] and I are Hindus. [USA] annulment date back to ab initio. There was no intent of fraud. I put forth that the 2nd marriage was legal because there had been a termination of 1st marriage and that if the customary dissolution is not valid, the [USA] annulment cured any defect as of date of marriage. Legal citations: Matters of Astoga #17 I&N B1A #1 1979 Matters of Astorga #13 I&N 26 B1A 1968 Matters of Samedi #14 I&N 625 ID2271 Matters of V #6 I&N 153 B1A1954 This termination of marriage was not done to get any immigration benefit. There was no marriage certificate for marriage #1. No record. I got the annulment to ensure that I am legally free and to prevent him [my first husband] from claiming anything from me or through me. Claim that I practiced polygamy is untrue because (1) I was never married to 2 people at 1 time and because (2) If there were 2 marriages at

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one time they were outside statutory period. I have Good Moral character. I never entered into a bigamous marriage and never knowingly entered into bigamous marriage. The 2nd marriage was lawful and my entry was lawful. Savitri had undoubtedly been well advised. She skilfully articulated her argument, choosing to mobilize customary divorce strongly, leaving room however for the use of her secondary strategy, the plea of annulment, which might succeed should her plea of customary divorce fail. As a word that inheres with potency in today’s American socio-legal vocabulary, ‘culture’ was offered as a term par excellence. By implying Savitri’s beliefs and sensibilities within the South Asian community, ‘culture’ was self-explanatory and did not necessitate further specification. Interestingly, this proceeding, which implies that only minority groups have a culture (see Ballard in this volume) does offer an excuse in the legal setting, and yet it is susceptible to being refused by the minority groups as a whole since it potentially diminishes their respectability in their own eyes. Savitri, however, demonstrated determination and adhered to the instructions of her lawyer. The immigration officer was offered the choice between recognizing customary divorce and as a consequence Indian law or accepting that the first marriage of Savitri had been dissolved ab initio by American law. Both outcomes promised honourable success for Savitri, who also demanded moral compensation. The first would have meant a familial success for the cross-continental efforts of all members of Savitri’s family. The second, by signifying the triumph of American law, would possibly have reinforced the already acquired integration of Savitri into the American mentality. After five months Savitri’s application for naturalization was finally granted on the basis of the recognition of her customary divorce. However: Your application for naturalization was denied because you failed to establish you were a person of good moral character, in that you entered into a bigamous marriage. Furthermore, you were not lawfully admitted to the United States and therefore you do not meet the continuous residency requirements for naturalization. On … 2007 you appeared for a Review Hearing. You presented additional evidence showing that your first marriage was a religious ceremony and it was dissolved through custom. Therefore, your second spouse was valid and you entered the United States lawfully. It is determined that you have sufficiently overcome the reasons for the denial of your application for naturalization, and your application is now GRANTED. You will become a citizen upon taking the Oath of Allegiance to the United States, and you will receive an appointment notice by mail scheduling you for the oath-taking ceremony.

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The above was an unexpected achievement by the immigration authorities of the United States. The recognition of the Hindu customary divorce of Savitri meant the avoidance of expensive and time-wasting procedures that, in other cases, appear to have the essential purpose of imposing conformity. Savitri’s case will be hopefully considered as an example by the jurisdictions called on to decide the legitimacy of customary Hindu divorce outside India. A year after Savitri was granted American citizenship I received a slideshow from her depicting the lengthy Brahmanic rituals of her third marriage. Her parents had found a suitable party, and she had flown to India to inspect her potential husband-to-be. This time, she told me, she wanted to see for herself, but after thinking it over, she readily agreed. After marrying in India, the couple flew to the US. The husband had got a visa thanks to his American spouse. Interestingly enough, the couple does not possess any written evidence of their marriage (see Menski in this volume).

Conclusions With the number of South Asians living outside the sub-continent nearing 31 million, the South Asian diasporas are a striking example of the extent of legal import that the West is bound to take into account. However, except for the general feeling of insecurity and anxiety vis-à-vis ethnic minorities, this de facto legal pluralism has received very little attention. In fact this situation, most of the time described as a conflict of laws, has attracted the attention of those policy-makers who were alarmed by the potential danger of what resembles an ‘offshore’ company able to circumvent national regulations (Sachdeva 1993 and Ballard 2003). Applied social science demonstrated an institutional concern for the challenge that the South Asian diasporas were allegedly representing for the legal systems of the ‘host’ countries. Although the term diaspora itself was challenged as a denomination that might not correspond to the highly mobile groups of South Asians who had relatively thin transnational links with India and were essentially concerned with improving their opportunities on their own terms (Ballard 1994), socio-legal scholarship has only recently become aware of the reverse trend to the conventional legal transplantations which brought Western models to the countries of the ‘South’ (Shah and Menski 2006 and Shah 2007). As this volume demonstrates, the legal cultures of the ‘South’ are travelling with the migrants from these countries. The legal proceedings of European and North American countries have already incorporated some sort of cultural expertise for the management of this newly acquired cultural diversity. However, academia seems not to have realised the extent of this import, its ramification and its conceptual implications. In fact, whereas social sciences became extremely sensitive to the risk of reification of culture, they did not acknowledge that ‘culture’ is becoming a legal argument capable of achieving outcomes in court. I will draw particularly on Savitri’s case, but most cases expounded in this volume would lead to similar considerations. While matrimonial

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litigation in India is informed by a complex dynamic between state and non-state sources of law (Holden 2008), those different and concurrent sources of law tend to collapse and merge into a generic reference to ‘culture’ in the case of transnational or indeed transcultural case law, including those cases that, by involving the members of South Asian communities out of India, require some knowledge of either state or non-state law in India. Although I still think that a radical approach of legal pluralism would substantially contribute to avoiding unnecessary procedural accumulation (Holden 2004 and 2008), I must admit that legal pluralism tout court has become an unrealistic perspective in the current international panorama. However, close observation of everyday legal practice shows that some level of accommodation of ethnic diversity is taking place. Hence on one hand a variety of post-colonial strategies are deployed, whereby control of overseas territories is enforced through the maintenance of geographical boundaries and control of ethnic diversity. On the other hand, legal narratives in the context of migration are acquiring more facets in order to include instead of exclude; even if, as with Savitri, the only successful inclusion is of those middle-class cases that do not challenge Euro-American host societies. The urgent issue that should be broached at an academic level and ideally in collaboration with legal practitioners is that the divide between academia and applied social sciences makes cultural expertise a kind of a secondary occupation for socio-legal scientists in need of extra income or ready to engage in occasional pro bono activities. This relegation to the backstage may enable flexibility, especially when accompanied by the absence of a rigid normative framework. However, it is also likely to neutralize the specialization of cultural expertise by making it a mere argumentative device. This is indeed what happens in cases where too many experts are called (see Shah’s chapter in this volume). One can only speculate about the financial implications of these serial expertise cases and on how they are likely to affect legal outcomes. Menski’s chapter in this volume has indeed questioned this sensitive issue by alluding to the exaggerated fee charged by an unscrupulous lawyer in the case of H (p. 162). But if we look at the specialist knowledge required for cultural expertise, Savitri’s case is a good example. The Indian lawyer who was consulted initially not only undermined the letter of the law that provides for statutory recognition of customary divorce (Hindu Marriage Act, section 29(2)), but he also lacked the perspicacity to be able to recognize the modern trend that makes the boundary fuzzier between state and non-state law in India. Notwithstanding the pressure for a universalistic legal positivism, often called the rule of law at a macro-level, my field-work data indicates an increasing overlap between state and non-state law, together with an increasing ability of middle-class social actors to mobilize those legal devices that better suit their contextual needs. Courts therefore should not take it for granted that a lawyer practising in the country of the litigant, or community members for that matter, can act as experts without any prior training. At the same time, one cannot but ponder on the reasons why most expert witnesses

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do not belong to the same community as their clients. In fact, anthropological or socio-legal training irrespective of ethnic belonging may be a more appropriate requisite for cultural expertise than ethnic identity. Another very sensitive aspect of cultural expertise is its boundary with advocacy (see Good and Menski in this volume). I find the distinction between advocacy and expertise as it is formulated by Edmond (2004) very helpful. Edmond points out that social scientists who provide expert reports are often confused over having to take up both the role of advocate and that of expert. By acting as an advocate, the anthropologist is susceptible to undermining the weight of the expert report. By acting as an expert and abiding by the formalism of the legal process, the anthropologist might not be ideally placed to voice the cause of the client fully, and yet he may ‘discreetly’ influence the outcome of the trial. As Edmond (2004) ironically observes, anthropology (and, I would add, its conceptual tools) is being appropriated and becoming itself an object of colonization: Through its attempts to interpret and understand societies and their cultural practices, professional anthropology is now itself subject to appropriation and legal colonisation. The impact of this colonisation can be detected in changes to the sources of funding, conference and research directions, employment opportunities, the creation and revision of codes of ethics, publications, collaborations and other forms of (social) capital far away from the courtroom […]. It can also be seen where anthropologists make recourse to legal proceedings as forms of authority in professional practice and debates […]. More effort is needed to understand not only the potential of anthropological expertise within the formal legal setting, but also the danger of a straightforward manipulation of anthropology and of socio-legal scientists within the formal setting of official law and policy-making. It is significant that the warning should come from within the legal domain. It is my suspicion that, as social scientists, we are too easily impressed by the solemnity of the law, and we may shy away from the fact that our professionalism and deontology require us to balance respect for the law with our peculiar closeness to the subjects of our study. The purported need for a stringent logic in a legal setting (Trigger 2004) should not be translated as the failure to formulate our expert knowledge in a way that is intelligible and relevant to the court. Hence, in Savitri’s case, my stress on the fact that telling the court that Brahmans are not supposed to remarry according to Hindu orthodoxy does not bear the same weight and significance that it does when telling this to an academic audience – and this is irrespective of the legal outcome. The epistemological weight of our considerations varies owing to the different kinds of inferences in anthropological and legal reasoning. From this perspective I would say that my lack of experience as an expert made all the more evident the position of the anthropologist expert witnesses who are in measure to help the court thanks to their specific

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closeness to the subjects of their research. Multidisciplinary communication may be the key. Ideally, anthropologists who act as expert witnesses should be able to address both law and anthropology audiences appropriately and, irrespective of legal outcomes, they should not be requested to depart from closeness to the subjects of their study.

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Index

academia 74, 78, 80, 92, 93 n.1, 204, 208, 209 adequacy 105, 190, 191 adoption 2, 41, 67, 154, 168 advocacy 6, 8, 76, 151–171, esp. 154 and 161, 210, Agamben, Giorgio 172 Ahmadis/Ahmadiyya 23, 25, 26, 42 (see also Pakistan and Muslims) All India Muslim Personal Law Board 45 alterity 36, 48, 124 American 15, 18, 23, 81, 85, 207 (see also United States) African 15, 27, 31 n.12, 32 n.25, born citizens 13, 15, 17, 197 citizen 19, 31 n.14, 194, 197, 200 citizenship 197, 200, 201, 208 city 14 criminal procedure xviii courts 14 expert Witness 79 family law 14 green card 16 immigration 16, 197 judiciary 13, 14 law 13, 14, 19, 207 legal system 13, 18, 197 lifestyle 17 Muslim 15, 20, 31 n.11, non-Muslim 18 population 14 South Asian 14, 17 society 14, 203, 206 spouse 208 white 24 American Community Service 14 American Community Survey Reports 31 n.6

Angel-Ajani, Asale 10 n.5, 84 anthropologists 1, 2, 5, 26, 33 n.35 and 37, 51 n.26, 54, 79, 83–84, 88, 92, 104, 125, 147, 173–174, 177, 178–179, 181–182, 184, 185, 187, 190, 192,195, 197–198, 201, 204, 210–211 anthropology xiii, xviii, xx, xxi, 1, 6, 83, 146–147, 209–211 asylum 9, 20, 21, 22, 24, 26, 30, 38–39, 58, 62, 76, 94, 95–97, 101, 102, 107, 108, 112, 116, 120, 172, 174, 184, 185 appeals 23, 94, 99, 116, 117, 119 applicant/Seeker 4, 21, 22, 28, 42, 58, 62, 94, 98–104, 106, 114, 115, 119, 120, 172, 174–178, 184, 188, 190, 191 case law 5, 119 court 94–120, 117 grant rate 119 hearing 94, interview 94, 99, 100, 101, 102, 105, 106, 108, 112, 174 lawyer 99, 100 Asylum Policy Instructions 98, 104 asylum procedure 5, 99, 172–191, 192 Immigration and Asylum Tribunal 41, 43, 97 Australia xv–xvi, xvii, 4, 28, 50 n.4, 94, 196, 198 citizenship xv, xvi bad character 195 Ballard, Roger 2, 4, 5, 6, 7, 8, 9, 10 n.4, 49 n.1, 50 n.6, 51 n.26, 54, 123–148, esp. 124 and 148 n.1, 2 and 3, 170 n.3, 207, 208

Index Bangladesh 13, 31 n.10, 32 n.22, 34 n.39, 41, 44, 46–47, 52 n.34, 54, 62, 133, 134, 172, 174, 178, 180–182, 185–187, 189, 190, 194 n.18, Awami League 180, 182–185 divorce 47–48 Jama’atul Mujahideen Bangladesh ( JMB) 180 Jatiya Party 21 marriage 47–48 Bangladeshis 15, 21, 41, 44, 47, 70 n.3, 144, 172, 178, 180–182, 187, 188, 193 n.12, Barth, Fredrik 83, 125, 126 Bauman, Zygmunt 172 Berman, Harold 37, 38, 48, 50 n.6 bigamy 19, 197, 200 (see also polygamy) Bingham, Tom 82, 97 Bonnichsen, Hans Jørgen 90, 91–92 Bourdieu, Pierre 81, 82, 92 citizenship xvii, 2, 35, 163 American 195, 197, 200–202, 204, 208 Australian xvi British 169 dual 35, 36 European 37 French 66–68 law i, 9 Office of Citizenship and Immigration Services (USA) 20, 33 n.27 Pakistani 58, 168 through adoption 67 Christian 21, 23, 25, 26, 37, 66 community 26 marriage 51 n.23 Christianity 31 n.12 as cultural order 36 Western law 36–37 universalization 50 n.6 Clayton, Gina 38, 49 n.3, 50 n.7 and 17, 51 n.20 Clifford, James 10 n.5, 116 cohabiting partners civil partnerships 38 heterosexual 38–39 homosexual 38–39 consistency 94, 97, 98, 105, 107, 117, 179, 193 p.15, 206

227

credibility 4, 8, 49 n.3, 84, 94–122, 174, 176, 177, 179, 183, 184, 186, 188, 189, 191, 193 n.13, 204, 206 assessment 98–99, 116–120 importance 97–98 internal and external 98, 120 negative 99, 104, 117 cultural defense 3 cultural expertise 1, 2–4, 5, 6, 7, 8, 9, 22–24, esp. 24, 196, 197, 198, 202, 203, 208, 209, 210 culture xiii, xiv, xviii, 1–3, 7–8, 16, 28, 29, 54, 66, 83, 91, 145–147, 206–209 conflict 134 culture blindness 39 culture of impunity 25 culture sensitivity 65 European 36 French Legal Culture 53 ghetto 18 Indian 27 legal 69, 105, 208 Muslim 14 South Asian 30, 35 Denmark 73–93, esp. 74, 76, 77, 78, 79, 80, 82, 84, 87, 88, 89, 90, 91, 93 blood-money 88, 93 n.4 Foreign Affairs Committee 81 gang warfare 74, 82–85, 89–90, 92 Hell’s Angels 85–86, 89 hashish 86 Pakistanis in 170 n.1 Security and Intelligence Service (PET) 85 discourse xviii, 3, 6, 60, 105, 173, 177, 187, 188, 195, 196 culture 2 law/legal 2, 4, 8, 9, 189, 191, 197, 205 polyphonic 184 social science 4 discretionary leave to remain (UK) 38 divorce 2, 3, 13, 17, 19, 20, 28, 29, 31 n.15, 41, 48, 49, 56, 66–68, 69, 125, 135, 137–139, 158, 159, 161–162, 163, 167, 197, 201 Bangladesh 46–47, 52 n.34 decree 161, 164 Hindu customary 157, 158, 159, 160, 161, 162, 163, 164, 166, 171 n.10, 195–211

228

Index

divorce (cont.) Indian divorce deed 2003 161 Muslim law/Islamic 42, 45, 139, 171 n.19 procedure 67, 69 England/English law 47, 52 n.34, 154, 156, 158, 162, 163, 166, 170 n.6 domestic violence 14, 18, 25, 39, 51 n.25, 126 advocate 17 concession 39 court 13 Police Domestic Violence Unit (UK) 135 Douglas, Mary 172 Edmond, Gary xvii, xxi, 4, 210 English law 50 n.17, 126, 147, 151, 152, 153, 154, 155, 156, 157, 158–160, 162, 163, 166, 167, 168, 169, 170 n.7, 171 n.13 Civil Procedure Rules 29, 51 n.24 and n.26 School 157 ethics 1–10, esp. 8, 197 code of ethics 210 social scientist 196 European Convention on Human Rights 40–41 European Union law 38, citizenship 37 European Court of Justice 37, 40 European Economic Area 37, 40 family migrants 37–38, 50 evidence xiii, xv–xx, 3, 22, 23, 24, 29, 33 n.33, 39, 40, 41, 42, 44, 45, 46, 47, 48, 49 n.2 and 3, 50 n.12, 51 n.29, 52 n.32 and 33, 78, 84, 91, 94, 96, 97–98, 99, 100, 104, 106, 112–120, 121 n.8, 13 and 20, 123, 124, 127, 128, 130–132, 137, 140–144, 146–147, 151–155, 157, 158–162, 164, 165, 166, 168–169, 170 n.7, 173, 177, 182, 185, 187, 188, 190, 191, 193 n.15, 197, 199, 201–203, 207, 208 oath 207 reliability xix–xx veracity 29, 49 n.1, 76, 79, 183, 186 witnesses 4, 23, 24, 26, 30, 78, 79, 83, 84, 85, 90, 91, 92, 96, 97, 98, 128, 142, 151, 186, 209, 210, 211

expert xiii, xix, 1, 2, 4–5, 8, 9, 22, 24, 25, 30, 42, 54, 69, 75–77, 79, 80, 81, 86, 89, 127, 128, 140, 147, 151–170, 173, 182, 190 academic 90, 206 anthropologists 51, 147 country 5, 94, 97, 152, 173, 190 cultural 2–3, 4, 5, 24, 29, 210 demand-driven performance 74 evidence xix, 39, 41, 152, 154, 155, 157, 160–161, 165–168, 169, 202 fee 5, 24, 26, 28, 29, 162, 164, 165, 204, 209 Hindu law 157, 161 information flow to 42 intervention 41, 42, 155 law/legal 2, 3, 49, 59, 195 opinion 38, 206 psychological and social 63–66 report 27, 47, 137, 145, 158–160, 162, 163, 164, 169, 195–211, esp. 195, 196, 197, 198, 201, 204, 205, 206 and 210 role xiii, 30, 49, 84, 151, 173 single joint expert 51 n.26 objectivity 99 socio-legal 8, 9 South Asian law/South Asia 35, 74, 151 television 75, 76, 88, 89 (see also media) testimony 28, 54, 151 UK Border Agency 39, 42 witness 22–24, 25, 26, 27, 28, 30, 42, 74, 77–79, 82, 83–84, 90, 91, 92, 93, 114, 123–125, 127, 128, 142, 151, 152, 182, 186, 211 expert report 27, 47, 137, 144, 158–160, 162, 163, 164, 169, 195–211, esp. 195, 196, 197, 198, 201, 204, 205, 206 and 210 criteria for inclusion in 209 outcomes 8, 13, 95, 119, 146, 170, 195–211, esp. 207, 208, 209 and 211 treatment within legal proceeding 6, 48, 96, 112, 198, 202, 205, 208, 2010 writing 195–211, esp. 196 Fabbri, Paolo 173 facts 4, 98, 113, 141, 176, 179, 185, 201, 202 assessment by expert of 29, 113–114, 142, 161, 179, 197 assessment by court of 54, 166, 185, 187–88, 189–192

Index factuality 105, 191 family 17, 20, 26, 39, 49, 65, 151 court (UK) 41, 46, 47 feud 88, 123, 125, 126, 131 reunion (reunification) 2, 15, 36, 37, 38, 39, 40, 48 South Asian 39 support 21 family law 8, 9, 13, 38, 48, 49, 55, 153, 154, 155 American 14 British 157 cases 152 English 156, 157, 160 Family Law Act 1986 (England) 157, 161, 162, 163, 166, 167 Indian 156, 157, 159 Muslim 26, 32 n.22 South Asian 151 foreign law 55–57, 151–155, 161, 163, 166, 168–170, 171 n.8 Foucault, Michel 2, 189 France 5, 6, 9, 15, 50 n.9, 53–70, 90, 187, 192 n.5 criminal court (Assize) 54, 58, 60, 64, 65 judicial institutions 58 legal system 55, 58 gender 7, 33 n.28, 34 n.41, 80, 119, 126, 146, 201 equality 202 roles 26 segregation 125 Good, Anthony xvii, 4, 5, 6, 7, 8, 9, 24, 29, 33 n.37, 34 n.40, 54, 121 n.10 and 16, 173, 174, 177, 190, 192 n.5, 193 n.13 and 15, 198 governance xiv, 5, 7, 175 governmentality 1, 9 Greimas, Algirdas Julien 173, 187 Gujarat 31 n.7, 41, 70 n.3, 155, 164, 165 Gujarat Registration of Marriages Act 2006 52 n.32, 164 habitus 6, 35, 79 Hindus 21, 41, 92, 151, 156, 157, 158, 165, 166, 178, 180, 182, 183, 189, 195, 196, 201, 203, 205, 206, 210 customary rites 157 divorce 158, 161, 162, 163, 166, 167, 195, 196, 197, 200, 202, 204, 205, 208

229

marriage 156, 157, 160, 164, 171 n.10 and 11, 198, 202, 203, 205 Hindu law 41, 92, 154, 156, 157, 158, 160, 166, 167, 195, 203, 205 marriage xxi Hindu Marriage Act 1955 (India) 163, 166, 167, 171 n.10 and 11, 195, 200, 203, 205, 209 honour 77, 78, 85, 124, 125, 126, 132, 135, 142, 144 crime 25, 78, 124, 125, 140, 145 honour in English law 126 South Asian honour (izzat) 126 honour killing 2, 21, 77, 79, 124, 125–126, 140, 141, 144, 145, 153 human rights xiv, 22, 25, 41, 82, 83, 91, 97, 113, 120, 151, 152, 155, 156, 161, 167, 168, 190, 202 abuse 25 European Convention on Human Rights 40–41, 50 n.18, 51 n.19 Human Rights Watch 24, 36, 125 lawyer 23 report 24–26 violation 25, 26, 154, 190 humanitarian leave to remain (UK) 38 immigrants xxi, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23, 24, 26, 27, 30, 31 n.5, 32, 33 n.34, 50 n.4, 58, 62, 63, 70 n.3, 79, 83, 84, 85, 86, 89, 156, 159 African 63 Battered Immigrant Women’s Protection Act (US)17 country of origin 15 husband 28 illegal 62, 70 n.3 Muslim 13, 15, 32 n.16, 32 n.26 Pakistani 18, 31 n.14, 32 n.16 South Asian 13, 14, 17, 26, 32 n.26 spouse 38–41 woman 17, 18 immigration xv, xvi, xvii, xxi, 3, 5, 9, 13, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 32n.16, 33 n.27 n.28 n.31 n.33 n.38, 35, 36, 37, 38, 39, 40, 41, 43, 44, 46, 47, 49, 49 n.3, 50 n.4, 50 n.10 n.11 n.13 n.17, 54, 70 n.3, 112, 116, 119, 120 n.3, 130, 152, 155, 156, 157, 161, 162, 163, 164, 166, 172, 195, 197, 200, 203, 204, 205, 206, 207, 208

230

Index

immigration (cont.) agent 19 American based 16 Board of Immigration Appeals (USA) 20 Department of Immigration and Multicultural Affairs (Australia) xv Immigration and Refugee Board of Canada 97 US Citizenship and Immigration Services 33 n.27 Yearbook of Immigration Statistics 33 n.27 Immigration and Asylum Tribunal (UK) 41, 43, 51 n.24, 97 Immigration Law Practitioners Association (UK) 43 immigration rules 38, 40, 50 n.11, 13 and 17, 99 discretionary leave to remain (UK) 38 domestic violence 39, 50–51 Indefinite leave to remain 39, 46, 156, 159 Humanitarian leave to remain (UK) 38 immigration rules/laws for cohabiting partners heterosexual 38–39, 50 homosexual 38–39, 50 immigration laws/rules for spouses 50 abusive spouse 17 age requirements 7, 36, 40, 50 asylum 38–39, 119 civil partnerships 38–39 entry clearance application 161 European Convention on Human Rights 40–41, 50 European Union 37, 38 forced marriage 36, 40 France 67, 68 language tests 36, 50 Points Based System (UK) 39 South Asia 37 polygamy 37 reunification 38, 48 UK 32 n.16, 38, 39, 40, 41, 44, 133, 156, 157, 158, 160, 161, 162, 164, 166, 167 US 13, 16, 17, 119, 205, 207, 208 India 13, 26, 27, 28, 29, 31,32 n.22, 34 n.39, 41, 44, 45, 46, 52, 54, 56, 66, 67, 74, 75, 92–93, 134, 154–167, 193 n.9, 195–209 customary divorce 157, 161–162

Gujarat 52 n.32, 155, 164, 165 Hindu divorce 161, 163, 166, 167, 195–197, 200, 202, 204, 205, 208, Hindu law 41, 92, 154, 156–158, 160, 166, 167, 195, 203, 205 Maharashtra 51 n.23, 52 n.32 marriage 58, 62, 156 Muslims 46, 57 Muslim law 42, 43, 45, 58, 92, 167, 168, 171 n.19 Indian 16, 21, 31, 48, 58, 61, 65, 68, 70 n.3, 133, 156, 196, 197, 200, 203, 205, 209 Asian 15 asylum applicants 21 citizen 58, 66 criminalization 49 culture 27 government 16 legal advisor 160 marriage 48–49, 157, 158 Non-Resident Indian (NRI) 16, 31 n.15 origin 68, 154, 155, 197 Indian Law 32 n.22, 44, 52 n.32 and n.33, 154, 156, 158, 159, 161, 162, 165, 166, 167, 197, 205, 207 court 160, 166 deed of divorce 157, 159, 160, 161 divorce 156, 160, 161, 164 family 156–157, 159 Hindu 41, 156, 158, 160, 162, 167, 205 Muslim 31, 32, 45 state law 165 statutory 160–161, 195, 209 international human rights law European Convention on Human Rights 40–41 Refugee Convention 94, 101 UNHCR 98, 113, 114, 176, 193 n.15 international protection of refugees 175–176, 177, 178, 183, 186, 188, 193–194 interpreter 54, 55, 58–65, 68, 69, 70 n.8, 92, 99, 100, 101, 105, 106–110, 114, 117, 121 n.18, 147, 175–176, 183 (see also translation and translator) Islamic law 13, 32 n.22, 82, 153,168 adoption 2, 41, 67,153,168–169 Islamists 89–90, 180,182,190 Italy 5,9,172, 174,176–177, 183, 185, 192 n.5 Follonica 174–175, 177–179, 183

Index Red Cross 175 Lampedusa 174–175, 178, 181 SPRAR 174–179, 181 Territorial Commission (TC) 174–193 Jarvis, Catriona 80, 94, 98, 117, 118, 119, 120 n.2, 122 n.21 kinship 7, 26, 27, 32 n.16, 35, 63, 70 n.3 and n.9, 124, 130, 148 n.1, 181, 193 n.13 Lash, Scott 174 lawyers xvii, xviii, xx, xxi, 1, 3, 5, 6, 10, 21–30, 32 n.21, 35–37, 41, 42, 47, 48, 50 n.10, 55, 56, 58, 60–62, 67–69, 78, 79, 83, 89, 90, 92, 94, 99–103, 106, 115, 119, 121 n.17, 126, 152, 156, 157, 165, 166, 171 n.13, 173, 178, 179, 186–191, 197, 198, 200, 201–204, 207, 209 Immigration xvi, 22 legal advice and representation 14, 21, 32 n.21, 37, 43, 47–48, 50, 162 legal aid 22, 24, 32 n.21, 51 n.28, 100 legal education 152,157 legal discourse 8–9, 189, 197, 205 Libya 176, 181 Litigants 2, 4, 9, 13, 23, 24, 43, 48, 54–56, 58–60, 62–64, 69, 100, 101, 123, 152, 153, 163, 203, 209 Lotman, Yuri Mikhailovic 182 Lynch, Michael xix, 6–8, 69 n.2 Maharashtra notes 51 n.23, 52 n.32 Malkki, Liisa 172, 174. 193 n.10, 194 n.17 marriage xvi, xxi, 2–3, 13, 16–21, 26–28, 31 n.16, 32 n.16, n.17, n.22 and n.23, 35–41, 43–49, 51 n.22 and n.23, 52 n.31 and n.32, 56–58, 62, 66–68, 70 n.11, 92, 121 n.9, 124–125, 130, 132–134, 135, 138–141, 153, 155–161, 163–169, 170 n.6, 171 n.10 and n.11, 195–203, 205–209, annulment 66, 70 n.11, 206 arranged 16–19, 66–68, 70 n.11, 125, 130, 141, 199, 202 child 199, 200 contract 45, 56 customary 156–160 forced 21, 40, 121 n.9, 153

231

Hindu xxi, 156, 157, 160, 163, 164, 166, 167, 171 n.10 and n.11, 195, 198, 200, 202, 203, 205, 209 Green card 19–20 limping 168 Muslim 16, 43–46, 56 non-registration of 52 n.32 registration of 44–45, 52 n.32, 158, 164 rituals 157–158, 165, 198, 200, 202, 208 transnational 2, 35–37, 38, 155–156, McKinley, Michelle 121, 191 media 51 n.29, 73, 74–77, 78, 81–82, 83, 85, 88, 89, 91, 193 n.10 (see also television) interviews 14, 55, 69, 75, 76, 77, 88, 94, 101, 106, 109, 112, 118, 134, 137, 175, 176, 197 men 17, 19–20, 27, 32 n.17, 80, 85, 90, 102–103, 107, 118, 126, 133, 135, 144, 166, 180–181, 200 Menski, Werner 1, 3, 4, 6–9, 10 n.1, 32 n.22, 41, 45, 48, 52 n.30, 151–171, esp. 151, 152, 153, 170 n.7 and 171 n.8, 9, 16, 19 and 20, 198, 203, 208, 209, 210 methodological nationalism 36 Ministry of Overseas Indian Affairs 16 migrants 1, 15, 37, 39, 43, 49 n.1, 125, 153, 154, 157, 169–170, 172, 174, 178, 193 n.10, 208 citizenship xvi–xvii, 2, 9, 20, 33 n.27, 35, 36, 37, 58, 66, 67, 68, 163, 168, 169, 195, 197, 200, 201, 202, 204, 208 highly skilled 44 family 51 n.19, 165 migration 1, 3, 4, 38, 48, 51 n.19, 52 n.29, 120 n.1, 152, 154, 156, 165, 170, 174, 192 n.5, 209 family based 38, 39, 132 misunderstandings i, 7, 8, 9, 16, 54, 55, 56, 58, 60, 65, 66, 68, 97, 100, 114, 115, 182, 193 n.13 and 16 linguistic 14, 59–60, 69, 70, 173, 175, 184, 187 multiculturalism 3, 4, 36, 53, 54, 83, 146, 166, Muslims 13–34 esp. 15, 18, 23, 25, 26, 31 n.9, 10 and 12, 31 n.14, 32 n.22 and 25, 43, 45, 46, 53, 56, 57, 70 n.3, 86, 87, 88, 89, 91, 92, 124, 125, 132, 139, 151, 167, 168, 169, 171, 180, 189–190, 193 n.12

232

Index

Muslims (cont.) Ahmadi/Ahmaddiya 21, 26 (see also Pakistan) American 15, 31 n.11 culture 14 Danish 87 Kashmiri 151 Pakistani 22, 32 polygamy 32 n.22 immigrant 13, 15, 32 Indian 45, 56 South Asian 13, 14, 15, 16, 18, 19, 20, 30 n.4, 32 n.16 and 26, 43, 124 Sunni 45 Muslim law 42, 43, 45, 58, 92, 167, 168, 171 n.19 adoption 168–169 All India Muslim Personal Law Board 45 All India Muslim Women Personal Law Board 45 Indian 45 Marriage (India) 44–46, 56–58 Muslim Arbitration Tribunal (UK) 49 narrative xiii, 7, 8, 9, 61, 94, 105, 109, 112, 114, 116, 149–211 esp. 151, 155, 172, 173, 176, 177, 178, 179, 180, 181, 184, 185–189, 191, 193 n.13 and 195, 202, 209 coherence (internal and external) 97, 105, 179, 184, 193 p.15 nikah/nikkah 41, 44, 45, 46, 56, 57 certificate 44, 45 unregistered 44–46 nikahnama 45–46 oath 207 objectivity 99 Pakistan 13, 19, 21, 23, 25, 26, 31 n.10, 42, 51 n.20 and 25, 54, 75, 125, 130, 139, 168, 172, 174 Ahmadis/Ahmadiyya 23, 25, 26, 42 plausibility 94, 113, 115, 116, 118, 120, 173, 190, 191 polygamy 13, 32 n.22, 50 n.9, 51 n.22, 206 (see also bigamy) private international law 52 n.34, 55, 152, 154, 156, 157, divorce 47, 48, 161, 162, 166, 169 marriage 38, 47

Ramji-Nogales, Jaya 20, 21, 33 n.28 and 30, 118, 119, 122 n.23 Ramos, Alícida Rita 3, 10 n.5 reflexivity 1–10, esp. 6 refugee xxi, 27, 33 n.30, 39–40, 65, 70 n.3, 88, 94, 95, 97, 99, 101, 103, 105, 116, 118, 119, 172, 174–177, 179, 186, 189, 192, 193 n.10 and 15, 194 n.17 (see also asylum) asylum seekers’ and refugees’ Protection 192 n.5, 193 n.7 Bosnian 105 camps 88, 174 Immigration and Refugee Board Canada 97, 116 Refugee Convention 94, 101 reliability xix–xx religion xiv, 13–15, 18, 20, 23, 28, 31 n.9, 43, 53, 66, 83, 91, 160, 178, 180, 183 Renteln, Alison Dundes 3, 10 n.3 and 5 Rosen, Lawrence xvii, 10 n.4, 30 n.1, 190 Sachdeva, Sanjiv 39, 49 n.3, 170 n.4 and 5, 208 secularization 36, 50 n.6 semiotics 173 Severi, Carlo 182, 193 n.14 Sharia (see also Muslim law) 45, 46 Denmark 87 Sikhs 27, 49 n.2, 50 n.7, 70 n.3, 121 n.20, 134 community 134, 148 n.2 family 132 local 134 temple 132 South Asian 7, 13, 14, 15, 17, 18, 19, 20, 22, 23, 31 n.4 and 5, 32 n.16 and 25, 35–52, 55, 65, 125, 127, 128, 196, 208 American 14, 17 anthropologist xx applicant 21, 23 asylum seeker 21 Brahman 195, 196 community 14, 35, 49 n.2, 207, 209 context 18, 141 countries xiv, 17, 39 culture 14 descent 78, 123, 127 diaspora xviii, 6, 8, 9, 208 family 39, 65, 127, 128, 151 history 45

Index immigrants/immigration 13, 14, 26, 33 n.33, 39 jurisdiction 35 legal practice 8, 9, 10 n.1, 35, 41, 44, 79, 151, 152, 171 n.13, litigation/litigants 9, 53, 57, 59, 55, 58, 61, 63, 65, 69 Muslims 13, 14, 15, 16, 18, 19, 20, 21, 23, 25, 27, 29, 30 n.4, 31, 32 n.26, 43, 124 narrative 7 origin 15, 32, 54, 59, 64 parentage 14 population 55, 69 scholarship xiii spouse (husband, wife) 17, 19, 20, 37, 49 n.3 tradition/practices/notions 62, 63, 126 women/men 17, 31 n.4, 31 n.5, 50 n.12, 65, 195 Sri Lanka 54, 60, 61, 62, 63, 64, 65, 70 n.3, 102, 103, 106, 107, 111, 112, 113, 114 spouse 16, 32, 39, 40, 41, 42, 44, 47, 48, 49, 56, 57, 66, 67, 70, 133, 162, 164, 165, 205 abusive 13, 17 age 40 deportation/return to home 17, 22, 23, 29 forced marriage 21, 40, 121, 153 Hindu 167 NRI 166 sponsor 38 Tamil 60, 61, 63, 64, 65, 70 n.3 and 9, 102, 103, 104, 106, 111, 112, 114, 115 terrorism 2, 74, 78, 82, 83, 90–92 text 45, 60, 93, 173, 179, 180, 183, 192, 192 n.3, textual 172, 180, 181, 182, 187, 189, 191, torture 25, 103, 104, 111, 116, 117 Medical Foundation for the Care of Victims of Torture 103, transcoding 173, 192 translation 1, 29, 45, 53, 55, 58, 59, 60, 61, 88, 106, 114, 147, 173, 183, 192, 196 (see also interpreters and translator) translators xi, 9, 54, 58, 59, 63, 147

233

Trigger, David 4, 197, 202, 210 transnational social fields 35–36 Turner, Victor 105, 172 United Kingdom xv, xx, 5, 6, 9, 33 n.37, 34 n.40, 37, 38, 39, 40, 44, 46, 50 n.18, 54, 82, 90, 94, 95, 99, 107, 112, 113, 123, 124, 130, 132, 133, 134, 138, 139, 140, 148 n.2, 151, 153, 155, 156, 158, 159, 162, 163, 164, 165, 166, 167, 168, 169, 170 (see also immigration rules) asylum decisions/procedures 95, 120 n.1 case law 108, 121 n.11 country of origin information 42, 44 citizen 130 government 44 Immigration and Asylum Tribunal 97 immigration authorities 41 legal order 41 UK Border Agency 39, 40, 42–44, 45, 51 n.29, 94, 95, 96, 98, 99, 100, 102, 104, 106, 107, 108, 109, 111, 112, 114, 121 n.13 and 21 United States of America/United States/ US/USA/U.S xiii, xx, 1, 3, 4, 6, 13, 14, 15, 16, 17, 18, 19, 21, 22, 23, 26, 28, 31 n.7 and 15, 32 n.16, 33 n.28 and 32, 38 n.33, 48, 54, 79, 80, 82, 94, 118, 119, 121 n.9, 195, 196, 199, 200, 201, 207, 208 (see also American) Appeals Court 19, 119 Board of Immigration Appeals (BIA, USA)) 20–22 Battered Immigrant Women’s Protection Act 2000 17 Census 14 citizen 17, 22 Citizenship and Immigration Services 33 n.27 Circuit Court of Appeals 20, 22 court 70 n.7, 79, 100 Department of Homeland Security (DHS) 20, 21, 33 n.27, 119, 122 n.23 Department of Justice 22 Department of State Bureau of Democracy, Human Rights and Labour 25 Domestic Relations Court 13 education 202 government 45

234

Index

United States of America (cont.) immigration 3, 16, 30, 195, 204 immigrant Services 204 judge xix jurisdiction 9 law/legal procedure 20, 196, 206 litigation 8 Muslim population 15 National Academy of Sciences xix Office of Citizenship and Immigration and Services (USCIS) 20, 33 n.27 Pakistanis 23 South Asian 17 Superior/Supreme Court xix, 14, 33 n.28, 206 Violence against Women Act 1994 (VAWA) 17, 32 n.21 universalism 5, 53, 55, 69 Vacchiano, Francesco 177, 194 n.18 veracity 29, 49 n.3, 76, 79, 183, 186 verification 183 visas 18, 38, 43, 44, 47, 48, 49 n.3, 50 n.11, 134, 178, 208 application 17, 22, 164, 165 entry xvi Non-Resident 20 officer 42, 46, 47, 48, 51 n.23 Permanent Resident 19, 27 refusal 42, 47, 165 spouse xv, 22, 39, 40, 44, 47, 163, 165 temporary 20, 178 tourist 22

type 17, 18, 32 n.21, work xvi, 29, 51 welfare State 68, 84 Weston, Amanda 55, 94, 97 witness 4, 37, 42, 75, 78, 79, 84, 85, 89, 90, 91, 96, 97, 98, 99, 128, 130, 142, 191, 192, 204 box 79, 89, 128, 137, 142 expert 10 n.4, 22–24, 25, 26, 28, 30, 33 n.28 33 and 34, 42, 74, 77, 78, 79, 83, 84, 90, 91, 92, 151, 182, 186, 209, 210, 211 public 84 report 25, 62 statement 42, 94, 96, 100, 102, 105, 118, 121 n.8, 127, 132, 140, 142, 143, 178 women 14, 17, 18, 20, 25, 26, 27, 28, 31 n.14 and 15, 32 n.23, 45, 46, 80, 102, 118, 125, 126, 131, 166 American 16, 27 Asian 39, 46 divorced 28 Hindu 196 immigrant 14, 17, 18, 19 Muslim 30 n.4, 45 Pakistani 32 n.17 rights 56, 68, 196 South Asian 31 n.4 and 5, 50 n.12, 65 Tamil 102 Wray, Helena 36, 40, 171 n.12