The UKBA and the ‘burden of proof’

This story about the UKBA demanding ‘proof’ of someone’s sexual preference if they seek asylum after fleeing persecution for being gay, lesbian or trans- is outrageous. It is another example of the testimony of the potential migrant/refugee being dismissed by the immigration authorities as ‘not credible’ and the immigration control system seeking another form of ‘proof’, particularly deferring to the physical body. This has overtones of the practice of ‘virginity testing’ in the 1970s and other cases where the physical body has been put under scrutiny by the immigration control system, such as the physical/medical scrutiny placed upon people seeking asylum or trafficked people found in the UK.

This also raises the question of where the ‘burden of proof’ lies within the immigration control system. Technically, the ‘burden of proof’ lies with the immigration authorities and the balance of probabilities should weigh in the favour of the applicant, unless the authorities can categorically prove that the applicant is being intentionally dishonest. It should not be up to the applicant to disprove allegations of dishonesty or quash doubts over credibility made by the authorities. Since the 1970s, there has been a criticism that the immigration control system actually places the ‘burden of proof’ upon the migrant/refugee, with the authorities being very dismissive of the testimony and documents produced by potential migrants/refugees. As seen in the Anwar Ditta case of the early 1980s, there is a false assumption that the ‘burden of proof’ lies with the applicant and that the allegations made by the authorities have no need for evidence. The requirement of ‘proof’ of sexual orientation by the UKBA is the latest episode in a shameful history of the British immigration control system.

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Related to this ‘burden of proof’ being placed upon the migrant/refugee and the inspection of the physical body, Marinella Marmo and I wrote this for an article on the use of x-rays in the immigration control system, which I thought was worth quoting here briefly. I especially like the quote by Fassin and d’Hallunin at the end of the paragraph:

In the UK border control system, there is a high level of suspicion inherent, with border control practices often starting from the assumption that migrants, visitors and those seeking asylum are attempting to evade or deceive the system. The default thinking of the border control system seems to assume that certain migrant groups are not who they say they are when interacting with the system. As Marmo and Smith have argued, there has been a long-standing belief in the UK border control system that migrants and asylum seekers, particularly from Asia and Africa, are potentially ‘bogus’ migrants, with constant mention by the authorities about the unreliability of the testimony of migrants and asylum seekers from these parts of the world, as well as a suspicion that documentary evidence provided by these migrants is likely to be fake. The authorities claim to weigh up decisions ‘on balance of probabilities’, but it is often the case that the border control staff begin from a point of total disbelief and shift the burden of proof onto the person applying to enter the country. With this burden of proof placed upon the individual, it is often difficult to persuade the authorities that their reasons to enter the country, as a visitor, a working migrant, a migrating family member or even as a refugee, is genuine, which is made more difficult by the presumption that testimony and documentary evidence provided by certain migrant groups is likely to be falsified. Under the intense scrutiny of the border control authorities, if testimony and documents are not considered to be convincing enough, the focus of the authorities may shift to physical examination, with the body becoming the marker of ‘truth’. As Didier Fassin and Estelle d’Hallunin (2005: 598)* wrote about refugees in the French border control system, ‘their word is systematically doubted [and] it is their bodies that are questioned’.

*Fassin, D & d’Halluin, E (2005) ‘The Truth from the Body: Medical Certificates as Ultimate Evidence for Asylum Seekers’, American Anthropologist, 107(4) 597–608

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