Summary

The practical implementation of Dutch asylum policy is the responsibility of the interviews and decision-makers at the Immigration and Naturalisation Service (IND). It is these caseworkers that decide on behalf of the State Secretary for Justice and Security whether an application for a residence permit on the grounds of asylum is granted or not. In order to be able to make this decision, they need information on the basis of which they can establish and appraise the relevant facts in light of the applicable legal standard. Their work involves a great deal of uncertainty, particularly when it comes to these facts. This follows not only from the pivotal question in asylum procedures – what would happen if an asylum seeker were to be sent back to their home country – but also from the reality that they have to determine this risk on information that, to a great extent, cannot be verified objectively. This means that the process of establishing a great deal of the facts boils down to assessing the credibility of the asylum seeker’s statements. Although this leaves facts uncertain, every asylum procedure must end in a decision, so IND caseworkers must find a way to deal with this. Central to this study was the question of how they do this. In order to answer this question, it was investigated which uncertainties IND caseworkers experience, which rules they have to deal with, what discretionary space they feel they have here, and which factors are influential in their dealing with uncertainty.

These questions cannot be answered on the basis of purely legal research. Mere examination of IND decisions and court rulings in this respect would only reveal what IND employees have entrusted to paper, leaving the preceding actions and considerations hidden in the black box that this study attempts to open. Hence the qualitative nature of this research. The core of this book is formed by an in-depth description of the way in which caseworkers claim to find facts at different stages of the asylum procedure, the choices they make and the justifications they give (Chapter 5). The determination of four different types of facts is discussed in more detail in the following chapter (Chapter 6). The research results are based on semi-structured in-depth interviews with caseworkers at the IND offices in Schiphol, Zevenaar and Ter Apel. In order to put these results into perspective, the theoretical framework is described in Chapter 2; where Chapters 3 and 4 provide the procedural, organisational and legal contexts in which the process of establishing the facts took place.

In Weber’s classic ‘ideal-type’ model, the implementation of policy is presented as a neutral activity over which individual bureaucrats do not exert any influence themselves. However, a great many empirical studies show that bureaucrats do not actually function as cogs in a machine, but can be better understood as individuals who try to express their professional and personal morality under given conditions within the discretionary space they experience. They will be faced with various forms of uncertainty along the way, i.e. in terms of how to act (action uncertainty), how to interpret laws and regulations (interpretation uncertainty) and how to weigh the available information or the lack of information (information uncertainty). The discretionary space that IND caseworkers are allowed to tackle these forms of uncertainty is first and foremost demarcated by rules. However, an examination of the rules alone is not enough to ascertain the discretionary space bureaucrats experience and use as their ability to manoeuvre is further defined by the way in which they are managed and controlled, by the instructions they receive, their work organisation and structure, and by informal standards within the office. The discretionary space they actually have, therefore, does not always correspond to the liberty that the legislator has allocated to the administrative body, nor to the leeway that the administrative body has designated to its employees. After all, discretionary space can also arise from doubts about the gist of the rules, as well as the extent to which bureaucrats have the ability to deviate from these rules in practice. Bureaucrats cannot avoid making decisions independently and relatively autonomously. This means that their actions and decisions can be influenced by personal opinions, experiences, beliefs and environmental factors. This study distinguishes three motivations for bureaucrats’ discretionary actions. First of all, they look for ways to deal with the circumstances of their work (coping). Secondly, they must interpret general rules and apply them to actual cases (tailoring). Finally, bureaucrats try to reconcile their personal and professional values as much as possible (ethical).

Chapter 3 describes the asylum procedure. It shows that the asylum procedure is characterised by a sequential structuring of the fact-finding process. That is to say that the structure of the asylum procedure itself determines what types of and when information is collected and appraised. The subsequent description of the IND’s organisational objectives and structure shows that it has aimed to develop its staff members into client-friendly professionals who use their discretionary space responsibly. If this can be taken as a sign that the IND has set out to develop from a ‘decision factory’ into a ‘decision studio’, one would expect IND staff to have been given more freedom to pay attention to material justice and the circumstances of each individual case than they had in the ‘decision factory’ where similarity in decision-making as a means of efficiency was the central objective.

Chapter 4 describes the general requirements under administrative law that the caseworkers of the IND, as representatives of the administrative body, have to fulfil in the preparation of their decisions on asylum applications and the discretionary space they have in a legal sense. As the most important requirement for decision-making, Dutch administrative law specifies that decisions must be prepared carefully and without bias. This stipulates that decisions by the IND must be based on relevant and correct facts and that the methods used to establish them must be appropriate. In establishing the facts of a case, there is, in principle, no discretionary space for the administrative body, which means that the court is entitled to carry out a full review of the establishment of facts. But when it comes to the rating of the facts, the administrative body often does have the discretion to decide, in which case it would befit the court to be more restrained. The administrative body also has some leeway when it comes to the investigation into the credibility of statements that are not substantiated by evidence.

The second part of Chapter 4 describes the elements of asylum legislation that must be assessed by the IND in order to determine whether an asylum seeker is eligible for international protection in the Netherlands. It is primarily the responsibility of the asylum seeker to substantiate their application with evidence, but the applicable standards do take into account that they are often unable to do so. For this reason, plausibility is the standard of proof applied in asylum legislation. Throughout the process of establishing facts, IND caseworkers must collaborate with the asylum seeker in order to get all the relevant facts on the table, which means that they should inform, counsel and facilitate any and all asylum seekers throughout the decision-making process in order for them to communicate their account accurately and provide all the available information.

Chapter 7 discusses the main findings of the study and the conclusions. The study has shown that IND caseworkers experience all three types of uncertainty described in the theoretical framework, but in day-to-day practice, they mainly experience information uncertainty. With regard to some types of facts, such as an asylum seeker’s alleged religious conversion or sexual orientation, this information uncertainty can be so great that some respondents believe that the truth of these allegations can actually never be established with adequate certainty.

For IND staff, rules and legislation are a source of both certainty and uncertainty. Most of the respondents stated that the increase of rules that they have to consider has actually made their work increasingly more difficult over the years; they have led to expanding categories of groups that qualify for a residence permit with growing detailed criteria. New rules come into effect without any clarification as to how they should be applied, and trusted routines have to make way for new routines without caseworkers knowing whether the new ones will pass the test of scrutiny of others within the organisation, let alone in court. Moreover, policy changes can send out the implicit message that the former working method was inadequate, which can hurt caseworkers in their sense of professionalism or even arouse resistance. This is particularly frustrating when the rule makes it more difficult to reject applications while caseworkers have the impression that asylum seekers are ‘abusing’ the ‘flexible’ regulations. It also takes some time for IND caseworkers to be able to monitor their actions and consequences whenever a new rule has been implemented. They have different ways of coping with this knowledge. Some respondents are concerned about changes in practices and the ensuing legal inequality. Others see it as their duty to seek the limits to their discretionary space in applying a new rule. In their view, the responsibility for the demarcation of the meaning of the rule lies primarily with the court. They believe it is their duty to ensure that a judge is confronted with borderline cases.

Decision-making in asylum procedures is usually not the work of one individual, but the collective result of the efforts of several caseworkers. Part of the work is formally organised as a group process, but some cases are nevertheless a joint effort, be it an informal one.

The formal variant involves the separation of the case worker’s interviewer and decision-maker roles, on the one hand, and the dual control principle, on the other. Practice shows, however, that experienced staff are free to choose to whom they submit their draft decisions. This study revealed that there is no fixed working method, and that that IND caseworkers can use this fact strategically. As for the separation of the role of the interviewer and decision-maker, the day-to-day practice is just as questionable. Experienced staff can sometimes decide for themselves whether they also want to take on the decision-making role after interviewing. Furthermore, there is a great deal of informal collaboration and regular contact during both the interviewing stage and the preparation of decisions. Although it is a way for staff members to learn from one another, they can also share their subjective opinions about the asylum seeker and their story. This, in turn, can influence the attitude of their co-worker, making them take on a more – or less – critical stance. This is significant in a context where uncertainty is the sole basis for the discretionary space in making different considerations in comparable cases. It also brings the risk of group formation and group thinking whereby alternative actions or beliefs are no longer considered.

Most caseworkers aim to complete their task within one day as also stipulated in the procedural rules. Although they feel free to decide to do so, they prefer not to take advantage of the possibility to extend the procedure and, for example, seek expert advice. Most only do so if they truly don’t see any other way to come to a decision, usually referring to the costs involved. The desire to complete an interview within the specific timeframe can encourage caseworkers to occasionally adopt a selective attitude - with the risk that the asylum seeker might be cut short if they declare things that the case worker suspects to be irrelevant when, in fact, they are not. The framework of reference that the caseworkers use to differentiate between relevant and irrelevant facts is policy documents that list the most frequently occurring risks and dangers in a specific country. The potential consequence of all this is that asylum seekers may only be given the opportunity to make a statement in regards to these types of risks specifically. If the workload is high, caseworkers may lack the time to look critically at the work of colleagues and have the tendency to accept or agree to information indiscriminately. Whether this happens depends mainly on the reputation of the colleague and the perceived time pressure.

The way in which IND caseworkers use their discretionary space depends on the informal, rather than the formal socialisation process, this study shows. New caseworkers are gradually authorised to conclude interviews or to make a decision on an asylum application. They mostly learn this on the job, which gives their more experienced colleagues considerable influence, although they will start to develop their own style when they have gained some experience. This style depends mainly on the informal contacts in the office. There is an ‘oral tradition of law’, as Eule coined it. The meaning of rules is not learned through formal training but on the job from co-workers. The study also found an ‘oral tradition of practice’ at the IND, which can lead to the creation of local standards and customs at different levels. Many of these differences can continue to exist, because managers exert only limited control over the way in which employees perform their duties. The actual substance of the work is almost exclusively in the hands of the courts, be it that judges have merely a limited insight into the various less significant choices that are made during the decision-making process as they are neither reported in the final decision nor the underlying documents.

Informal conversations between staff members regularly address the question of whether an asylum seeker’s statement should be considered normal or plausible, since many statements lack reference material. The greater the information uncertainty, the higher the possibility for unsubstantiated assumptions and the use of stereotypes. Whether or not an IND caseworker believes a story partly depends on the picture they form of the asylum seeker’s social environment. This picture is inevitably also based on subjective judgements, stereotypes and other unconfirmed assumptions. Ultimately, it is not a question of whether IND caseworkers are personally convinced of the story, but whether they consider the statements to be credible in the light of policy. They must be able to justify their professional judgment so that it can stand up in court. Nevertheless, the question of whether IND caseworkers are personally convinced of the asylum seeker’s story does play a major role. It is one of the factors that determine the scrutiny of their investigation into the facts. If they doubt the truthfulness of the asylum seeker’s statements, they will make more efforts to ‘catch’ them contradicting themselves and question them more extensively over details. This increases the chance of discovering ‘inconsistencies’ in the story. In contrast, if, based on the same stereotypical considerations, a case worker is convinced that the asylum seeker is telling the truth, they will take a less critical stance whereby they actually increase the asylum seeker’s chances. In order to be convincing for IND staff, a story must not deviate too far from what they know, even if this knowledge is based on unsubstantiated assumptions. A story shouldn’t sound too much like other stories either, because that arouses the suspicion of a rehearsed story.

This study found that whenever there remains enough uncertainty at the end of the decision-making process, IND caseworkers actually experience an opportunity to choose whether they reject or grant an application. They are not always able to make this choice on objective grounds alone. They also make less significant decisions throughout the procedure that are not (or cannot be) fully justified on objective grounds, the respondents admitted. Such choices always boil down to applying the benefit of doubt, or not.

In asylum procedures, the truth cannot be established with certainty, and caseworkers are well aware of it. The facts almost always remain uncertain. The study showed that establishing facts is not a neutral activity in the Dutch asylum procedure. It is a process of IND caseworkers transforming information into facts and applying abstract rules to concrete cases. The way this transformation takes place can only be partially understood through an examination of decisions and court rulings. In order to acquire more understanding of this transformation process, this study explicitly focused on the caseworkers’ perspective. It is the sum of their actions and choices that determines how facts are established in the asylum procedure.