Who is a refugee? Uncertainty and discretion in asylum decisions.

Abstract

Assessing claims for refugee status is a task often riddled with uncertainties, not least because of the challenge of establishing the credibility of the claims. The uncertainties enable divergent interpretations of both evidence and legal rules, thereby constituting a space for discretion in the refugee status determination process. This article explores how decision makers in the Norwegian asylum system reached a conviction about the outcome of asylum claims, despite numerous uncertainties. Decision makers who worked closely together developed a system of distinction that enabled them to single out applicants with protection needs from those who were not considered to be eligible. This system ordered the space for discretion, thereby reducing doubts about the outcome. It was based on the law and other formal sources, but also on recognizing patterns of difference and similarity with previous decisions. The emphasis on comparison between cases meant that the outcome of an individual application could not be understood in isolation; the distinctions between applicants who were accepted and those who were rejected depended, in part, on the case set as a whole. The findings suggest that, in a context of uncertainty, refugee status is to some extent determined by producing a local yardstick of who ‘the refugee’ is.