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Alex Powell, "Queering UK Refugee Law: Sexual Diversity and Asylum Administration" (Bristol UP, 2026)
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Rinvi (Host)
Welcome back to the New Books Network. I'm Rinvi, your host. I'm here today with Alex Powell to discuss queering, UK refugee law, sexual diversity, and asylum administration. Welcome to the show.
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Alex Powell (Guest, Author and Legal Scholar)
Thank you very much for having me. It's wonderful to be here.
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Rinvi (Host)
So the first question that I like to ask people is, how did you come to this project in the first place?
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Alex Powell (Guest, Author and Legal Scholar)
So, I mean, the origin is actually as my PhD project, so I was completing a master's in law, and I had a particular interest in sort of gender and sexuality, and I sort of stumbled upon asylum. I mean, at that time, I wasn't that necessarily familiar with immigration law or asylum law, but. But when I. When I stumbled upon it, realizing that was an area of law where people were asked to prove their gender or sexuality as a part of an administrative process that. That's just something that really captured me as, you know, quite unique in the sense that, you know, there's very few other areas of, like, where we're asked to prove our gender or sexuality to a standard of proof for the purposes of attaining legal rights, in effect. So I found myself sort of really drawn in and that led to me doing a PhD, which focused on the question of how do you determine whether or not someone is LGBTIQA for the purposes of their asylum claim? And actually, much of the underlying work for that PhD is chapter three of the book. But then I wanted to supplement that by speaking to legal practitioners as well. So the project is sort of a development of my doctoral studies that sort of focuses on that really interesting artifact of this being, as far as I'm aware, the only area of law. I mean, obviously private immigration too, but immigration will be one of the only areas where you get asked to prove your gender or sexuality.
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Rinvi (Host)
So I'm a huge methods nerd and I love to hear about how people do research and I find that listeners are also interested too. So I'm curious if you can say a little bit more about how you conducted the research for this book before we jump more in, jump into the really rich material here. So I'm curious what your research process looked like and in particular, I'm curious to hear how you balanced legal analysis with review of government documents alongside other qualitative methodologies like interviews.
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Alex Powell (Guest, Author and Legal Scholar)
Yeah, I mean, so I think just epistemologically I'd situate it as a work in sort of in accordance with Jack Halberstam's idea of a queer methodology being a scavenger methodology. There's a use of a diverse range of methods. For example, even the empirics, as in the two interview datasets, are two different studies that I have combined together. And then there's added in a sort of use of Foucaultian and Buclarian frameworks. So, you know, very much a work in the queer canon that is seeking to combine a range of different methods and that doesn't strive towards that disciplinary coherence is much more about saying, well, how can we understand this topic in all of its complexity? Now, in terms of the empirics, the first study was an eight interview sample of people with lived experience of successfully seeking asylum in the uk, and it was very much focused on one question, which is, is the way in which the Home Office decides whether or not someone is LGBTIQA consistent with your lived experience? And what I Used there is what I called an ethnographically informed phenomenological narrative analysis approach, which it's a very long title to say. I asked people, talk about your gender and sexuality in your own language, and then compared that to the way in which Home Office and the broader UK refugee status determination process considered your claim. The second data set then utilized reasonably similar methods, but this term with 18 legal practitioners and people who work in the third sector supporting people seeking asylum. And again, it was about, how do you understand this system there. There was a bit of a dialogue as well with the legal consciousness literature. So how do you understand your own subjectivity as a practitioner? And I guess part of the idea here is that we're dealing with a really multifaceted and complicated side tier. So it's not just that you can say, well, does the policy map onto live experience? You also need to think about how broader factors like accommodation policies like provision of legal aid, how these sorts of things impact as well on LGBTIQA people, often in unanticipated ways. So I guess methodologically, it is a very much, very much a mixed methods approach. It is obviously with the data collection element there, you've got two separate studies, but then, as I say, it's also got the involvement of critical frameworks and all of that sits on top of a, I guess, a doctrinal context setting element. So for anyone who's a legal scholar listening, it does do the what is the Refugee Convention? What is the Protocol on Refugee status? How does that apply in the uk? And actually, all of this was happening, particularly the second study at the time that the UK government was bringing the Nationality and Borders Act 2022 and the Illegal Migration Act 2023 and the Safety of Rwanda Asylum and Immigration Act 2024 through parliament. So it also sort of frames out the implications these changes had, both in legislative terms and also on the people I was speaking to as practitioners and people navigating the system. So, yeah, it's very much mixed methods and I think, you know, in that Halberstamian sense, when we say Halberstamian, in that Halberstam based sense, you know, scavenger methodology that seeks to bring these things together to give us a really complex and rich picture and sort of there is defying the compulsion towards trying to simplify everything because it's not amenable to simplification.
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Rinvi (Host)
So to jump a bit more into the book itself early on, and by early on, I mean in the first, I think three, maybe five pages, you mention what has now become a kind of infamous Suella Braverman speech in Washington D.C. where she talks about how illegal migrants inverted commas, big giant quote marks I'm making with my hands here were challenging the UK and how the UK quote will not be able to sustain an asylum, will not be able to stay an asylum in the UK immigration system, arguing that if, if in effect simply being gay or a woman and fearful of discrimination in your country of origin is sufficient to qualify for protection. That, that, that just, that was just sort of beyond her, her comprehension, I guess. And I was reading that and I was thinking about how you are very much situating this work in a particular time. And so you mentioned 2022 to 2025 as, as being of particular interest here, not just because it's the scope of your study, but also because of so many changes. So I'm curious again how you're thinking about time and change here, even in the context of these legal changes that you just alluded to a little bit, but even in terms of shifts in the political landscape.
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Alex Powell (Guest, Author and Legal Scholar)
Well, I mean, I think there's an epistemological point to draw out here actually, because for me, you know, one of the assumptions that you might traditionally see in many pieces of legal work is sort of this effectively liberal framing of reality as being something that we talk about as if there is this stable referent. And what we do is we have discussions around how we process, deal with and respond to that referent. I, as a post structuralist, fundamentally disagree with that. My view is that whether or not there's a reality that we can touch, the way in which we understand the world around us is deeply produced by discourse. So for example, drawing on your inverted commas point, whether someone is understood as an illegal migrant, again I will add my scare quotes to that. Or a refugee is a matter of sort of epistemological import. It determines whether they're viewed as someone who is rule breaking, entering without permission, a threat to the order within a nation, or whether they are vulnerableized, in need of protection and someone who deserves empathy. I mean, Nadine Alanani's talked really, really extensively around the sort of importance of empathy and how ideas like illegal migrant, foreign national offender are designed to foreclose empathy. So in that sense, I think the time is important because actually the way in which we need to understand reality shifts dependent on time. I do think, you know, I sort of set this out early in the book the culture war element, which by the way, the culture was not new. Like Stuart hall was talking about this in the 90s. This is just the political correctness gone mad thing all over again. But the reality is that what we're seeing in this current time is what you might call, in a Gramschean sense, like a war of position. Like the way in which we understand the world around us is reshaped by these political interventions. So Suella Braveman is not just making a throwaway point. She is making a fundamental attempt to shift the way that people process them world around them and make sense of it. And again, I think you can leave aside the question of whether there's a reality below that or not that's not really interesting. What's interesting is we don't touch unmediated reality. So those framings that come out are so fundamental to every other question. And actually, I think in that sense the timing is really, really important because this is a period where there are fundamental attempts to reshape the way in which people make sense of the world. I think, you know, Bart Kommerz is an academic at lse, has talked quite extensively about sort of this attempt to abnormalize social justice. And I think the book is sort of situated in that as well because what we've seen is a real mainstreaming of far right and I mean, frankly fascist narratives. And you can't think outside of those when politicians make these kind of interventions. I'm not directly accusing anyone era of fascism, but it has effects on the way in which people understand and process the world. And Suella Braveman knows what she's doing in that speech. She's playing on ideas of the dangerous other as well as on ideas of people being undeserving of protection. She is legally educated. She knows for a fact that discrimination is not a reason to claim asylum. She is trying to shift the way people understand things. So, yeah, I mean, I think in that way this book is a product of its time because it has to be. You can't understand these issues separate from the discursive contours within which they're formed.
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Rinvi (Host)
Thank you. Thank you so much for that response. I also just feel like every time we speak, every time I read your work or hear you present, I'm always just immediately struck by something else. And something that I appreciated a lot in this book, as someone who myself works in these intersections of sociolegal studies and who has, I've done my own research around UK asylum systems was how you thought about narrative. So you talk a little bit in this book about home office guidance and how that shifted and how that also, you know, impacted how people felt that they were. How asylum seekers, I should say. But also, you know, their, their legal representatives felt that they were able to express themselves or be understood or sort of at the end of the day, you know, receive status or be refused. But I also really appreciated that, you know, in your own work here that you are allowing people to express themselves on their own terms. Be a bit messy in, in particular, this, there, there are a couple moments where you, you offer some tension in terms of, you know, being gay, for example, as an identity versus something that someone does. Right. So this, this sort of difference there. So, yeah, I'm, I'm curious if you can, you can speak a little bit more to. Yeah, how, how asylum seekers were able to be understood or make themselves understood within the system. I realize that that's, that's a huge, a huge messy question, but I just, it's something that I found so, so, so compelling through this book and it's something that I really want more, more researchers and more practitioners to pay attention to.
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Alex Powell (Guest, Author and Legal Scholar)
I mean, I think it's a really, really fundamental question and I think, you know, a really, really interesting one as well, in the sense that, as I sort of opened with, this is one of the few areas where a legal framework attempts to determine whether someone is or is not lesbian, gay, bisexual. And so obviously under the Refugee Convention, what you need to prove is that you have a well founded fear of persecution for one of the five convention grounds. Now, most commonly claims based in sexuality or gender identity will be regarded as being part of a particular social group within the way that's been coded thinking all the way back to the Canadian Supreme Court. Actually, in the case of Ward, one of the ways in which that's established is this idea of an innate status or something so fundamental that you should not be required to change it. Both of those do sort of orient the whole idea of particular social group towards immediately this idea of an identity. Right. Now, aside from that legal framing, you also have the social framing where, and I very much follow Foucault on this, we, we've moved from a framing of sexual activity as something we do to a framing of sexual activity defining something we are a raison d'. Etre. This is partly, I would say, in Spivak's terms, a form of strategic essentialism. In many countries, the UK, Canada, the US there has been a sort of response from LGBTI2A people, often to the narratives of the religious right, that we were making sinful choices to say, well, we're not making sinful choices because we were born this way. This is innate. It's beyond our control. It's morally arbitrary. And Yoshino calls this the immutability defense. Basically, I think these two things interplay. You've got a legal framework that sort of cites the need for immutability, and then you've got a social framework that reinforces that need for immutability. So if you are a person seeking asylum, you are already set up in a framework that requires this idea of mutability. And then, because it's basically impossible to objectively prove sexual orientation and gender identity, we've also had a situation where there have been a series of models developed which are viewed as intent or at least are intended to be helpful to people representing their clients in order to help them to present their narratives. So one of these is the different shame, stigma, arm model. Now, this model calls for sort of a focus on early difference in someone's life. How are they different from the surrounding society? Did they experience shame and stigma as a result of that difference? And then sort of their emotional journey to realizing that they are queer and that they need protection on that basis. So what I would say there is that when someone is seeking asylum, regardless of their own experience at the moment, what they have to do is to contend with the model and the focus on immutability and to sort of translate their experience into something that corresponds to that. Now, again, I'm very clear the model is intended to be a helpful tool. But what I found from the people seeking asylum and the legal representatives was that they. They found that it sort of become calcified, that it was now functioning much more as a chat box. So, you know, do you have this emotional journey? And what that means is if your narrative rests in identity, then probably you're going to be okay. You're going to be able to say, you know, I realized at this age I was different. That made me feel this way. I realized I couldn't stay here anymore. I came to the uk. Here is how I live now. It involves going into spaces surrounded by other queer people because this is the fundamental part of my identity, that sort of narrative that will register, that will be legible to decision makers. If your narrative is instead, as some of my participants were, I don't see myself as different. I occasionally engage in sexual activity with people of the same sex. Someone else found out about that, so I had to flee. I don't think it's that important to who I am. You're going to really struggle. So one of the things actually, that legal practitioners end up doing in this area less almost than working on elements around persecution and stuff like that, is basically translating experiences into a legible framework and supporting people to meet the evidential expectations of the Home office, which will include things like going to queer venues, like being part of associations. I mean, something that came up again and again with participants, particularly the legal practitioners, was this sense of like, you know, the Home Office loves to say, yes, here's a lovely piece, body of evidence about how you've experienced inhuman and degrading treatment. But can you talk to us about some of the clubs you're a member of? As if, you know, we should all have a membership card or something? Honestly, I think, you know, here is basically a situation where there's a very, very set and fixed, limited way in which, which decision makers understand queerness. And that is correlating to that idea of immutability, to that emotional journey, to that ability to articulate your status as a gay man, a lesbian, a bisexual, a trans person as the central element of your being. And so, you know, I wanted to give voice to participants, but the system does not do that. And actually one of the conclusions I come to is that the model which again initially intended to be helpful, has now become more harmful and probably should be abandoned. Unfortunately, it is endorsed by the United Nations High Commissioner for Refugees in their guideline number nine. So there is a whole other thing there to address that. This has become one of the predominant modes not just in the uk, but in many other countries as well.
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Rinvi (Host)
So I appreciate you bringing up the shame, stigma, harm model because it provides an excellent transition to my next question for you, which is that you note something that I myself have noted. Some others I know who have done advocacy work or legal support or other kinds of work within UK asylum, the asylum system. I say asylum systems plural sometimes because it can get messy, which is this shift, especially over time since 2010, from discretion to disbelief. So can you explain what you mean by the shift within the Home Office from discretion to disbelief and how it particularly impacts those who are claiming on the basis of gender, sexuality?
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Alex Powell (Guest, Author and Legal Scholar)
Yeah, I mean, so the framing of shift from discretion to disbelief sort of calls back to a period sort of before what I was just talking about. In effect, nowadays when someone claims asylum, the sort of main hurdle which needs to be crossed is proving that they are or will be perceived as lesbian, gay, et cetera. But and just to say that I think it's really important to be clear, I'm not trying to limit when I use the categories in that way, that is how specific one is required to be to navigate the asylum process. If you say that you are bisexual at one point in your play, when you say that you are lesbian in another, you will be told that is not credible and that will likely undermine your chances of success very significantly. So the categorical language is a product of a system there. But, you know, before that, particularly in the UK, prior to the year 2010, the focus used to be much less on prove that you are or will be perceived as less lesbian or gay, et cetera. And instead was much more focused on basically this idea that, well, you won't fear persecution because you can return to your country of nationality and when you return you will be discreet and therefore you won't have a fear of persecution. So the ground for refusal didn't used to be so focused on, we don't believe you. It used to be much more focused on you'll be discreet. Now, in the uk, this fell under what was called the reasonable tolerability test. So the test that Decision Maker would have to apply is, would it be reasonably tolerable for you to be required to be discreet, or would the discretion itself constitute persecution? Now, the UK lesbian and gay immigration group, as it was called at the time now called Rainbow Migration, put out reports sort of documenting that this resulted in a 98 to 99% rejection rate for LGBTIQA claimants. So it was a lot worse than it is now, to be clear. But in 2010, the, at the time, very new UK Supreme Court issued a judgment called H.J. iran and H.G. cameroon, where they found basically that the reasonable tolerability test, the idea of discretion, was in incompatible with the Refugee Convention because it required the person seeking asylum to hide the very characteristic that is protected by the convention. And so basically the cynical framing here would be that decision makers lost one ability to reject someone and went for the other. They stopped being able to say, you'll be discreet, and they instead went to, well, we just don't believe you. So often now, you will see, not always, but generally the Home Office might well admit that persecution would happen to an LGBTI person in that country, but then they will say, you know, but that's not relevant here because this person is, in fact not, say, bisexual. So that's sort of the shift and it's notched in the uk. Jenny Milbank talked about it in Australia, and Australia overturned discretion in 2003, so seven years before the UK. It's been documented in many, many other asylum systems where we've seen the move away from discretion. So, you know, interestingly, it sort of changed the questions. And I do think within the literature, it's really important to make a sort of Pre and post 2010 split, because the issues, there were many similar issues, but there's also been this fundamental change. Now, it's also important to say here that in the uk, the issue of disbelief is not just something that occurs in LGBTIQA claims. So there is a very well documented culture of disability belief within the UK Home Office. There is also a need to recognize that following the Nationality and Borders Act 2022, the UK has raised the standard of proof in a stone claim. So it used to be that all you needed to show was a reasonable degree of likelihood, which basically, you know, the standard there is, basically, it's possible now you need to show on the balance of probabilities more likely than not. So where you already had a culture of disbelief, where you already had this massive issue of not being able to evidence something like sexuality in a way that satisfied the Home Office because their expectations were too high, that has now been exacerbated. Now it is too early to determine the exact effect of that. But, you know, as a bit of a supplement to the book there, I obviously know many people in the sector and it does seem like that is starting to become an even bigger problem than it was at the time I was writing the book. Yeah,
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Rinvi (Host)
it is interesting as well just to hear you speak on this too, how fast things are changing and unfortunately continue to change, to shift a little bit. Something that you mentioned that again, I know is familiar, at least to some extent to those of us who know a little bit about UK asylum systems is these demands for proving or evidencing gender and sexuality, this idea of belonging to clubs, of going to events, again, as you mentioned, as if there's some sort of membership card that can prove, proof, prove whatever. And something that I think you do really, really well in this book is talk a little bit about spatialities. And so there's a bit of a double move here. Right. So when we're talking about this, it's not just people coming to the UK fleeing persecution, but also who are then subsequently dispersed inside the uk, often to rural areas. So how did you see this dispersal shape things for the people you worked with, whether those were in interviews with asylum seeker, with practitioners or with third sector workers? Because again, to me, this is something that is so, so important. And again, I was really excited to see that come up in your work.
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Alex Powell (Guest, Author and Legal Scholar)
Yeah, I mean, so obviously there is the sort of, let's say, conceptual issue that I've raised already. Do you understand yourself in the way that you would need to jump the hurdles the Home Office is setting? There's then this broader issue about the, lets say, structural factors that limit the ability to equally sum out those evidential features. So one of those, as you mentioned, is the dispersal policy. So in the uk, generally, accommodation is allocated on a no choice basis. So if you are seeking asylum, you're in the asylum system, you will be told you are going here. If you refuse it, then you could well end up in detention. But there are also other penalties, such as the Home Office saying, we're no longer obligated to provide you with any accommodation if you refuse it. So there are really, really big issues that people will often get put in you Know, one participant was talking about how they were a legal representative representing people in sort of rural Wales. So we're talking here, you know, a good like 200 miles, possibly from the nearest gay bar. Just a weird metric to say your distance from the nearest gay bar. But it's really pertinent here because you've got someone who's being asked by the Home Office, you know, well, where's your evidence? Can you show your engagement with the community? Well, that same organization that's asking them to prevent that evidence is housing them in, you know, a field in the middle of nowhere where they basically have access to one village pub. Now, unless that village pub is designed to host normighty Pride party, it actually really affects their ability to dispense with the evidential requirements. There are also other issues with spatiality, though. One of the things that the UK has been doing recently, and this has been a major, let's say, tension point in many ways in UK politics, is using larger scale accommodation facilities, including hotels. So again, if you are LGBTQA and you have experienced persecution on that basis, you are quite likely to be very, very aware of who is around you. And you are then put in a situation where you are being put into accommodation with people you do not know, some of whom may be from your country of nationality and who, irrespective of whether or not it is a fair assumption, you may well assume hold views related to those held in your country of nationality. Obviously that might mean that people are not happy to be open. And so you're in this situation where again, you're expecting people to sort of show this community engagement on one hand, but then you're accommodating them in, in situations where actually very many people feel like they still need to be in the closet. Just because they're in the UK does not necessarily mean they're able to be open about their gender and sexuality. This also presents other issues, though, in terms of spatiality, because other things that they may not be able to do easily. For example, the use of dispersal also massively impacts provision of legal aid. So again, the Home Office might say, oh, well, we're putting all these people into this hotel that, that generally has very little regard to the amount of legal aid provision within that area. So, you know, in, in certain counties, you're in a situation where you might have perhaps one firm that does immigration legal aid, the Home Office might decide that they need to accommodate people in a hotel in that area and suddenly you've got four or five hundred people being brought into the area where maybe the entire representative pool in terms of people who will do legal aid immigration work is like three people. And again, that also has disproportionate effects on LGBTIQA cases because such cases are inherently complex. In particular regard to the fact that you often have to do more in the cases. For example, one of the things that the Home Office would often do is look at what's called country of origin information. That information has details on the general situation in a country. So if someone is seeking asylum from that country, they can look at that and it will say, you know, perhaps there's a particular religious group who are persecuted in this country. And that obviously means that their legal practitioner, if it aligns with the person seeking asylum, doesn't have to do the legwork of presenting the evidence for that. Now, quite a lot of country of origin information still doesn't mention gender and sexuality. So just as a really headline example, sometimes legal representatives will have to do more work to firstly prove that there is a risk of persecution in that country before they even get to the identity. Now, this obviously means that where you have massive influxes of additional need, again, those sorts of complex cases are likely to pull down the ladder. It's really important to say here as well that because legal aid immigration and asylum work is very, very poorly funded, the other dimension to this is that fewer and fewer firms are willing to take it on. And in that situation, sort of encouraging firms to take on what they complex cases can also be really, really difficult. And I make no criticism of practitioners. Then every immigration asylum lawyer I know is absolutely trying their best, but structurally, I mean, and I think I basically make this point directly in the book, the Home Office could not do more to undermine its own system than the range of policies it currently enacts.
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Rinvi (Host)
So before, before we circle back to the really important point about, about capacity use, I do just want to touch briefly something that I think you have unique insight into as someone with legal training who has lots of connections with those who are practitioners in the sector, our current concerns, and I was a sort of messy combination of sad and grateful to see the section around safety concerns of those who are, again, practitioners in this area. And so I'm curious if you can speak a little bit to what you saw, what you heard in those conversations, or what you've engaged with, because I think for many, they outside, outside the UK context, they may not realize, you know, things got bad enough, right, that you have the Law Society of, of England and Wales making statements of concern about, about Safety and well being.
- [36:01]
Alex Powell (Guest, Author and Legal Scholar)
Yeah, I mean, it's really quite alarming, the situation that that's arisen over the past few years. Now, I think it's important firstly to say that I would situate LGBTQA plus immigration and asylum in particular, particular as sitting at the intersection or invention of two different, but also conjoined moral panics. So firstly, there is a moral panic around immigration and asylum, particularly around the highly racialized and spectacularized image of small boats. Now this, I think you can see that this is a moral panic in the sense of that people seeking asylum, people traveling over on small boats, making irregular journeys, become sort of blamed for a range of social ills which have nothing whatsoever to do with them. They are in that sense the very traditional folk devil, which is blamed in the context of a moral panic. So, for example, people will talk about how well they can't get a doctor's appointment, and it must be because of all these small. We are talking about an infinitesimally small number of people compared to the population of the UK will have virtually no effect. Yet politicians, including the previous Prime Minister, literally stood on a podium with the legend Stop the boats. It became the only policy in effect of the Conservative Party between 2023 and 2024. It basically dropped a pretense of having any other purpose than seeking to push through their Rwanda plan and address what they saw as the problem of small boats. So there's that moral panic going on, and I'll come back to that in just a second. There's also a second moral panic going on that is the moral panic relating to the rights of trans people, particularly trans women, and the false perception that these undermine the rights of cisgender women. Again, here you have sort of representation of a very, very small, vulnerableized, for many other reasons, group of people presented as if they were the biggest threat to women's rights and as if, for example, patriarchy wasn't an ongoing issue in the uk Again becoming a central talking point for politicians in a way that sort of defies all rational thought. You know, in the uk there were situations where one of the questions of Prime Minister's questions, which happens every Wednesday, and his chance for the leader of the opposition, the head of the opposition party in the UK as well as other members of Parliament to ask questions of the Prime Minister. You had questions being raised in that setting by the Prime Minister of the leader of the opposition of whether or not a woman could have a penis. It's absurd that these things were going on, but these sorts of Moral panics are not. I guess the point is, they'd be laughable if they weren't so dangerous. Of course, the reality is that when you see these kinds of moral panics, what they do is they play on existing ideas of the dangerous other. So across social scientific literature, you might refer to them as the subaltern, the other, but you have this figure who is constructed as being outside of the people and who is represented as an existential threat to the people. Now, in immigration and asylum, as well as in LGBTIQA groupings, you have people who are being represented as somehow a threat to the general public, a threat, if you like, to the normal. I'm doing extreme scare quotes around normal population. Now, you know this. Firstly, it's really important to say that Gayle Rubin has very clearly theorized how anxieties about gender and sexuality often figure at moments of hegemony. So I've talked already about that sort of war of position, and this is. This is part of that. But what this has meant is that in the uk, both politicians and the media have spent basically four years telling the public that the reason everything is broken is because of us very small people of number, because of a very small number of people seeking asylum. And they've also spent years telling the public that they could deal with this if only those lawyers would get out of the way. Now, there have been some extremely dangerous moments in that, including home secretaries making reference to lawyers in the same category as people smugglers, implicitly, or at least I won't say quite implicitly, but implying that lawyers are engaging in forms of human trafficking. We've also seen prime ministers talk about legal challenges to their plans, particularly the Rwanda plan, which was the plan to send people seeking asylum for processing to the Republic of Rwanda, to have their claim processed in Rwanda and then to be given refugee status if successful in Rwanda. We've seen politicians talking about lawyers challenging this through the courts through legitimate means within a liberal democracy established along the lines that were generally agreed upon a decade ago as enemies of the people. And also using the idea of, you know, the will of the people. It's worth saying, literally no one ever voted for that plan because it wasn't in any manifesto. There was no mechanism anyone could express a vote for that plan. So it would be rather a strange interpretation of the will of the people. I would say there that there could even be some allusion to the idea that if you think that's the will of the people, you may be trying to embody a sort of almost a Schmidtian dictatorial stance where you see yourself as personally embodying the will of the people. Again, I'm not necessarily making personal allegations there, but there is a very pervasive anti liberal, anti democratic logic to this as well. But what that has meant is that in the interviews, I was really struck just by the number of legal practitioners who made references to feeling unsafe to do their job, who made references to having, for example, their address leaked online on far right forums, who talked about having to close down their office, I. E. Not be able to do their job or see people seeking asylum in their workplace because, again, the address of the office had been found on a far right blog and therefore they now needed the police to do a sweep because credible threats had been made against the lives of the staff worked in there. In August 2024 in the UK, we saw dramatic false allegations spread that the perpetrator of the Southport attack was an asylum seeker. This resulted in multiple days of rioting, which included rioters attempting to burn down a hotel housing asylum seekers. The level of dehumanisation resulting from these moral panics is incredibly dangerous. And it has reached a level where, you know, I guess bluntly, many legal practitioners do, from these interviews, fear for their lives doing. Doing this job. Now, obviously, most of them are extremely professional. They want to keep doing this. They really care about the people they represent. And I think it's also worth pointing out, though, that, you know, legal aid, immigration and asylum work is not well paid. And a whole nother element of this is the frequent populist tendency to refer to sort of fat cat lawyers. Was the quote Boris Johnson used that they certainly are extremely well paid lawyers. They are not human rights lawyers by and large. So, you know, it was really striking just to sort of talk to people about how they, as professionals, also felt unsafe. Now, to be clear, you know, that's nothing on how many of their clients were feeling. So, you know, practitioners were also telling me about how with the announcements of the Rwanda plan, they experienced people, they were representing people seeking asylum, running away from hotels, needing major mental health interventions because they were terrified that the things that the Home Secretary and the Prime Minister were saying referred to them. There's also just the broader things. These kinds of announcements also fueled just considerable anxiety. And the whole other undocumented element of that is just the number of further sector organizations and legal practitioners who had to spend days of their working time where they could have been representing their clients, fielding anxious phone calls and reassuring people that, no, if you've already lodged your claim this doesn't affect you because, you know, the government didn't seem to have any regard to what impact these kinds of announcements would have. And I do think it's worth pointing out there that the evidence, including research undertaken by the Home Office itself extensively documents that pull factors, I. E. The idea that people come to the UK because the conditions are good have almost no impact on where people seek asylum. Most people do not know reception conditions prior to arrival. So this, the policies that were being announced which fueled these moral panics, because by the way, the only way in which this policy works is if you inflate the idea that it's a problem that you can then be seen to be solving. That's, that's what the political trade off in inflating the issue is. That's why politicians do. Well, partly maybe it's because they don't understand, but if they are understanding what they're doing, then they're doing it because of the, what's called the signification spiral, where the boat devil becomes seen as more and more deviant and they're where they can be seen as the ones who stepped in to deal with it. Now, if you actually read moral panic theory in full, like generally not a good idea, because all the policy response does is exacerbate further the tension. We have seen that with asylum and immigration. I frankly think that the, the discourse and the narrative and the discussions we now have about asylum and immigration in the UK have no basis whatsoever in reality. I, in the book talked about Judith Butler's notion of a phantasm and I do think we're in a phantasm here. There is a astounding unreality to the way in which public figures talk about asylum immigration. It's completely detached from any concrete reality and it's become imbued of all these social ills. So, you know, there's the safety element, there's also the capacity element. And it's just fundamentally this goes back to what I was saying at the start, right. The reality is reshaped not just through concrete policy, but through the meta politics that is shaped through language and discourse. And what political actors and the media have done in relation to asylum and immigration has created a situation that is extremely dangerous. And you know, I talked in the book as well, like we need to be clear here. I am no longer sure I can say with confidence that in regard to this area, the UK complies with, for example, the UN basic principles on the role of lawyers. I think several statements by Boris Johnson and Rishi Sunak as Prime Minister, for example, were fairly clear cut violation of those. We also have to remember, you know, the UK Government was caught keeping dossiers on lawyers. It was caught keeping a dossier on the immigration lawyer, Jacqueline Mackenzie. So, yeah, I understand why practitioners are scared in this context.
- [47:34]
Rinvi (Host)
So my last question about this really wonderful book and the penultimate question of our interview, and so generous with your time today, I want to circle back to the caseload question. And here you note that there are two increases happening at the same time, which has a sort of multiplying effect in terms of the impact on legal practitioners, but also on third sector organizations who are also trying to support people through the process, which is this increased volume and the number of cases of claims and also an increase in the number of changes. So I'm curious if you can talk a little bit about these, about this sort of double increase that's happening and how you see it as really shaping the landscape, especially for LGBTQ asylum seekers in particular.
- [48:32]
Alex Powell (Guest, Author and Legal Scholar)
Yeah. So, I mean, in terms of the increase, I think it's important to say when we talk about increased claims, it's not so much that there is a headline increase in claims, but individual practitioners are taking on more and more, and that is basically because people are leaving the sector. So, you know, we've seen several major firms exit the provision of legal aid, asylum and immigration work. We've seen several practitioners exit the firms that are still working in those areas. And so, you know, this really came across in the interviews was sort of some of the participants responding, you know, if one more person leaves, then this whole region goes down. You know, one reflection was sort of talking about how in South Wales, there were now less than five people doing legal asylum work. That's, you know, a reasonable part of a constituent country of the United Kingdom with basically no one practicing in this area. So there's that first thing of, you know, many people now carrying caseloads of upwards of 100, 150 cases. Now, I already talked about how complexity of LGBTIQA claims means that they often require more time. But it's not just the complexity. It's also the fact that you are supporting someone who, for the first time, potentially is talking about the fact that they are queer in one way or another. They may not have a language exactly to articulate that, but you're also aware, as their representative, that they, when they come to their substantive interview with the Home Office, must be entirely consistent. They can't, for example, say at one point they're bisexual, and at another they're gay, that would be just not credible. So you need to be able to create a comfortable environment for them to tell you their story. You need to help them to ensure that they are aware of what is going to be expected of them within the decision making process. So, for example, that requires you to spend the time building up trust and rapport. And you also have to keep in mind that many people seeking asylum, indeed most people seeking asylum will be doing so because of a fear of state persecution or. Or in fact, if I put this or in, then it's everyone, or because officials within their country of nationality failed to protect them from another party persecuting them. That is the very center of asylum. The idea that your state cannot or will not protect you from a threat that another poses or is itself the agent of persecution. It must be stated persecution or a state failure to protect you from persecution in order for your asylum claim to have a prospect of success. Now, in many cultures, lawyers, well, not even in many cultures, right, lawyers are sort of part of the establishment. So there's also the whole thing there of breaking down the fact that they probably view you as an official, that you need to therefore show them that you are a safe person who they can confide in. None of that is possible when you're dealing with a caseload of hundreds and you only have, say, half an hour to give to a given client. Now, again, the reality is that lawyers just go above and beyond on this stuff. Many of them work 14, 15 hour days. They do spend the time that they in fact don't have trying to cover this stuff. But the increasing pressure due to the complete collapse of the UK legal aid system in regard to asylum is making that more and more difficult. And you don't need to take my word for it. You know. Another book that I would recommend people read is Joe Wilding's book on the legal aid market in the uk. This alarm bell has been well and truly rung before I rung it. All I do in the book is sort of identify that there are some further specific vulnerabilities that emanate from that for LGBTI people. But the other dimension of this is just the frequency of change. So if you are a legal practitioner, you had to continue representing your clients, but you also had to be aware of the changes made by the Nationality and Borders Act 2022. You had to understand how they might affect your client. Obviously, the general principle is that legislation does not have retrospective offender. There were some times in this period where that principle was also violated. We could have a whole nother conversation about how asylum in particular might be viewed as the canary in the coal mine for the rule of law and the protection of human rights. But what that means is just thinking about 22 act for a second, you'd be in a situation where, okay, this client over here, client A, they entered prior to the enactment of the Act. They are under the old legal framework. This client, client B, entered subsequent to the act of the Act. They are under the new system. System you then had the illegal Migration Act 2023. So you might then have a third person who entered after the enactment of the 2023 Act. Now, the 2023 act had some elements of retroactive effect. So you then have to look back and think, oh, how does it affect those clients who came before? But you also then have to think, oh, well, now there's a slightly different third system that this person might be under. Also some of the things done under the Nationality and Borders that were then partially repealed. Interestingly, one of the ones that was repealed was the idea of temporary status at a period of 30 months. Remarkably exactly what the Home Secretary, Shabana Mood has just proposed to introduce in the UK, literally introduced by the previous government in the 2022 act, now being proposed to be reintroduced. So just the level of change and it's what the immigration rules, which contain sections on asylum and I've referred interchangeably to immigration asylum, but we should be really clear, asylum is not immigration. Asylum is seeking, surrogate or international protection. However, the immigration rules contain in part 11 details of the asylum system and how it operates. So actually, if you are a person seeking asylum, I just want to really care about complexity. You need to have awareness of the refugee convention, the 67 protocol, the immigration Rules, the Nationality and Borders act, the Illegal migration act, about 14 different acts which contain different parts of immigration law passed prior to 2022. The illegal migration act, the government currently has a bill before Parliament. I mean, a lot of my academic work over the past three years, apart from the book, has just been digesting what gimmick the government is proposing to introduce now. And I don't say gimmick lightly, because the other dimension of this is that again, most of these policies have utterly no basis in reality. You know, the current proposal for the Home Office to introduce temporary status at a period of 30 months, requiring a re review every 2.5 years. There is no planet on which the Home Office is able to deal with that. They cannot deal with the volume of initial claims they currently see. There is again A backlog of building. So it's not only the capacity of legal practitioners, the Home Office. And obviously when I say the Home Office, there is a political part of the Home Office in the form of the Home Secretary, who is a government minister and part of the governing political party. There is an administrative part on the main. The people in the administrative part are not responsible for these decisions, but they will have to implement them. Now, putting that in there, the policies being proposed by the Home Secretary will completely outrun the capacity of her own department. So it's not only the lawyer's capacity, it's also the fact that this will introduce further and further backlogs. And I do want to mention here some of the people I spoke to who had sought asylum in the UK had waited years, in some cases over a decade, to get their status, that life lived in limbo. And the government is proposing things that are going to exacerbate those problems. And it. I sometimes I really struggle with how to express this. It's almost everything the Home Office proposed to address the problems that they say, you know, we need to do this to fix the problem, will make the problems they say they are trying to fix massively worse.
- [57:04]
Rinvi (Host)
I realize that that is a. A difficult note to, to end on, but I really appreciate you bringing us through your really wonderful book and situating us into the present, into an uncertainty of what this will look like in 1, 2, 3, 5, 10 years down the road. So to offer you the classic New Books Network closing question. So we'd love to know what you're working on now. Listeners are always curious about what's next for the authors we feature. So what are you working on now? That queering asylum is happily out in the world.
- [57:45]
Alex Powell (Guest, Author and Legal Scholar)
So I already sort of talked about how. Well, we already talked about this sort of thing around practitioner safety. And something I really want to follow up on is sort of what are the effects of this moral panic and deep politicization on the ability of legal practitioners to do their job? So I'm really keen to go back into the field, pending ethics, et cetera. This is a brand new proposal, but to go back into the field and to speak to legal practitioners about their experiences in more depth. Because actually all of the findings are honest in the book were almost a side note. They weren't things I particularly was looking for, they're things that came out in the interviews. But I want to have a much more systematic study of basically immigration and asylum lawyers and how they are coping in the current politicized narrative. How they are able to do their jobs? Do they feel safe? What is the impact of political rhetoric? What is the impact of media reporting? But also, I would like to also explore what is the impact of far right organizing, because I think there's a whole other thing going on here where, you know, I know many immigration lawyers who have, when I've spoken to them, have been like, oh, yeah, I can't go into the office at the moment because we've had a bomb fract or we've had some other indication that it's not safe to come in. So I'd like to look at that in more depth.
- [59:17]
Rinvi (Host)
Thank you so much for your time today, Alex.
- [59:21]
Alex Powell (Guest, Author and Legal Scholar)
Thank you. It's been a pleasure.
- [59:35]
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