Lado and the Need for Uniform Procedures in European Asylum Proceedings

• Jurisdiction: European Union
• Citation: Vol. 31 No. 2
• Publication year: 2017

LADO and the Need for Uniform Procedures in European Asylum Proceedings

Carla T. Elias Nava

LADO AND THE NEED FOR UNIFORM PROCEDURES IN EUROPEAN ASYLUM PROCEEDINGS

ABSTRACT

Language analysis for the determination of origin (LADO) is a process whereby an individual's speech is used as evidence of his national origin. Language analysis has commonly been used when asylum applicants are lacking documentation and the receiving nation is in need of objective evidence of asylum seekers' identity, origin, and nationality. Despite the widespread use of language analysis, however, there is significant variation among the methods that are used by different agencies and government departments that carry out the analyses, leading to inconsistent results in asylum proceedings across different nations. This Comment responds to the variation and inconsistency among LADO procedures and suggests that a uniform method of analysis that ensures consistent and reliable results must be implemented, such that asylum seekers will have similar opportunities and outcomes regardless of where they choose to seek asylum. Specifically, this Comment proposes a standard LADO procedure to be used throughout the European Union (EU), where a model of uniformity in asylum proceedings has been established through the creation of the Common European Asylum System (CEAS). Through the creation of the CEAS, the European Union has acknowledged the need for a standardized method of processing asylum applications and the difficulties that may arise if such a method is not established in an area of open borders and free movement. This Comment discusses the development of LADO, the difficulties that have arisen from flawed LADO, and a proposed set of guidelines that should be followed in addressing these flaws. Although the CEAS need not require states to conduct LADO, it should incorporate a standard, regulated procedure that must be applied whenever it is used. The implementation of a common LADO procedure in the CEAS will protect the interests of the EU member states by giving them access to accurate linguistic evidence in asylum proceedings, and will respect the rights of asylum seekers by ensuring that their linguistic evidence is used properly and fairly.

Introduction

After World War II, the United Nations recognized that, because the grant of asylum placed unduly heavy burdens on some countries, the refugee problem

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could not satisfactorily be solved without international cooperation.¹ Due to an increased need for a general, internationally accepted definition of refugees, the United Nations adopted the 1951 Convention Relating to the Status of Refugees.² The 1951 Convention defines a refugee as a person who can show "a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion" in their country of origin.³ This definition requires asylum seekers to observe fear—a subjective frame of mind—and requires the fear to be "well founded"—supported by an objective situation.⁴ This juxtaposition of objective and subjective elements in evaluating individuals' refugee status requires states to assess asylum seekers' credibility where a case is not otherwise clear from the facts on record.⁵ Aspects of an applicant's personal background are considered in determining whether the predominant motive for the application is fear, and thus whether the applicant's story is credible.⁶

Nations often question an asylum applicant's credibility in more detail when the applicant does not have documentation to prove his identity or place of origin.⁷ Individuals who lack documentation thus possess two types of evidence: (1) their bodies, which present medical evidence and may provide insight into individuals' age and any history of torture or injury they may have undergone and (2) their stories, which include the interviews, recordings, and statements made by individuals throughout the Refugee Status Determination process.⁸ Because individuals' stories often lack scientific support, many nations have attempted to provide objective evidence in support of those stories by observing asylum seekers' language use.⁹ Language Analysis for the Determination of

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Origin (LADO) has been used to confirm or deny the individuals' claims where the degree of certainty or truth in an individual's story is in question.¹⁰

Because language analysis is purported to determine asylum seekers' national origins, it is often used to isolate fraudulent asylum applications: claims by individuals who falsely allege they are from an oppressed nation.¹¹ Although language analysis has been used increasingly to determine speakers' origins, there is no standardized method for conducting the analyses¹² and this lack of a standard has led to significant variation in the methods and procedures used throughout the international community.¹³ This variation has led to inconsistent and unreliable results among nations, which may cause applicants to be wrongfully denied international protection.¹⁴ This Comment responds to the lack of uniformity and reliability of language analyses, particularly in the context of the contemporary refugee crisis, and proposes a standardized procedure to be implemented in asylum proceedings. Additionally, this Comment uses the European Union's (EU) effort to create and enforce a common asylum procedure as a model under which a standardized LADO procedure may be implemented. This Comment asserts that the Common European Asylum System (CEAS) must address the use of LADO to evaluate asylum applications throughout Europe if it hopes to reach its objectives of fairness, efficiency, and transparency.¹⁵

Part I of this Comment provides the background of these objectives and describes the process by which the CEAS has been created and developed. Part II then explains the use of LADO and illustrates occasions in which LADO has been conducted improperly or has yielded incorrect conclusions about speakers' origins. Last, Part III analyzes the first seven guidelines set forth in the Guidelines for the Use of Language Analysis in Relation to Questions of National Origin in Refugee Cases (Guidelines), a set of standards for conducting language analyses that has been suggested by the Language and National Origin

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Group. Part III discusses the importance of incorporating each of these Guidelines in the CEAS. This Comment provides recommendations for the incorporation of a standard LADO procedure in the CEAS by applying linguistic scholarship to the creation of a common asylum system.

I. Asylum Policy and the Common European Asylum System

By developing the CEAS, the EU has acknowledged the need for a standardized method of processing asylum applications.¹⁶ Despite the European Commission's continued efforts to welcome refugees through a unified European asylum system, many EU Member States fear that unpredictable financial costs may arise from irregular migration and that immigration will threaten the national interest of international sovereigns.¹⁷ These concerns are widespread, but unfounded—they are not representative of the actual costs of migration and asylum.¹⁸ In fact, research has found that migration can create economic growth and the economic benefits of migration outweigh the detriments.¹⁹ Additionally, although many European nations have come to define state sovereignty by a state's ability to exclude non-citizens, "porous borders allow[] for the free circulation of goods, capital, and economically desirable migrants."²⁰ Despite these facts, concerns of instability continue to be particularly salient for EU Member States, who "are restricted in terms of what measures they can legitimately impose to restrict entry" of migrants.²¹ The ideals of open borders and free movement that define the European Union call for such restrictions and conflict directly with states' desire to act independently on issues of migration.²² This conflict between the interests of sovereign states and those of the European Union has created the need for a joint approach to migration, which would "guarantee high standards of protection for refugees."²³

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Internal migration control within the European Union was initially established in the Single European Act of 1986, which required European states to "cooperate on policies involving the entry, movement and residence of third country nationals."²⁴ The Single European Act created a platform for common migration and border policies and eventually led to the formation of the European community.²⁵ Following this Act and the Amsterdam Treaty of 1997, European nations were further obligated to consider asylum and migration under the guise of a newly established community—the European Union.²⁶ However, despite the creation of the European Union, many EU Member States continued to follow their own practices "regard[ing] migration control as primarily a matter of state sovereignty."²⁷ A joint approach had not yet been achieved and the continued recognition of the need for "an open and secure European Union . . . able to respond to humanitarian needs on the basis of solidarity"²⁸ became the focus of the development of the CEAS.²⁹ The European Council (EC) addressed "the creation of an area of freedom, security and justice in the European Union" in October 1999 during a special meeting that spearheaded the creation of the CEAS.³⁰ Freedom and security, according to the EC, should not be denied to individuals whose circumstances lead them to seek access to European territories.³¹ Thus, nations, in honoring their commitment to international law, should do more to protect refugees.³² Europe must "develop common policies on asylum and immigration, while taking into account the need for a consistent control of external borders."³³ This meeting, therefore, established a shared responsibility among EU Member States to welcome asylum seekers and ensure that their...