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The Country of Origin Expert as Mediator between Cultural Worlds
- Apr 15, 2025
- Latest Journal
by Igor Cherstich & Elena Consiglio
Country of Origin expert witnesses (“CO expert”) play an essential role in asylum claims. This particular type of expert provides opinions either prior to the trial or in the judicial phase. The background of these figures is highly differentiated, from anthropologists to sociologists, comparative legal scholars, political scientists, cultural studies analysts, and regional experts. The purpose of these witnesses is to bring forth elements that help the adjudicators determine whether the asylum seeker is at risk due to reasons established by the 1951 Geneva Convention and the 1967 annexed Protocol.
CO experts must be impartial in the presentation of the evidence, and must express views which represent their true and complete professional opinions on the matters to which they refer. These experts should lay out the sources upon which their opinions are based, and these have to be consistent with reliable external sources: be it government reports, academic literature or independent NGO reports. Frequently, their opinions are presented in the form of a written report even though they may be called to provide their opinion in front of a judge at the hearing.
The role of the CO expert witness underlies a specific logic. This figure entails the notion that first-hand experience and in depth knowledge of specific geographical contexts can prove invaluable in evaluating the circumstances that force individuals to ask for protection. This is especially true with reference to countries whose social fabric and consuetudes differ from those of the Euro-American context. Dynamics of persecution and discrimination that are found in these countries might not be immediately evident or understandable to the untrained “Western” observer. Hence, they require the perspective of an informed third party.
The CO expert witness is supposed to provide ‘scientific evidence’. As such, the presence of this figure evokes the same complexities and conundrums that characterise other forms of scientific evidence in judicial trials, be it issues of objectivity, probability, admissibility, and, more broadly, questions concerning the relation between experts as periti in a particular area or subject and the judge as peritus peritorum. Yet, at the same time, the CO expert occupies a distinct position, one that carries with itself specific complexities. This is due not only to the specificities of asylum proceedings - where, unlike other trials, a 10 % chance of risk is deemed satisfactory to prove the claim1 - but also because of the particular nature of the expert’s work.
Doubtless, at a practical level, CO witness experts fulfil a plethora of different functions. For instance, these experts comment on the plausibility of facts and statements about facts reported in the asylum seeker’s account.2 In this sense, they are called to assess the veracity of the narratives provided by the asylum claimant. Furthermore, these experts often assess the authenticity of documents produced in the country of origin, be it IDs, licenses of various kinds, birth and death certificates or arrest warrants. Therefore, specific linguistic competences are required as well as an in-depth knowledge of local bureaucratic and legal practices. However, at the heart of these various tasks lies one, deeper occupation, a function that, we argue, is best described as ‘mediator between worlds’.
On the one hand, the CO expert is called upon to discuss social, legal, religious and political practices that take place in the country of origin of the asylum seeker. In doing so, the expert often unveils the intricacy of these practices and their hidden meanings. On the other hand, the expert witness is supposed to organise and present such knowledge in a language that makes sense to an audience which is un-familiar with the country of origin’s history and culture. In this sense, the most valuable function of CO experts in asylum cases is that of making the unfamiliar familiar. Their ultimate aim is to provide a form of cultural translation.
Naturally, there are specific issues that one encounters when attempting to translate cultural idiosyncrasies in a different cultural idiom, especially in a legal context. Some of these issues have been unpacked and analysed by various disciplines, including anthropology, philosophy, and comparative legal studies. Facing these issues, CO experts may adopt approaches from one of more of these disciplines. Yet, regardless of the specificities which characterise each expert, it is vital that CO witnesses retain what could be referred to as an ‘empathetic’ approach.
In contrast to more ‘externalist’ perspectives - according to which one can evaluate other cultures from an external point of view - an empathetic approach is based on the idea that cultural practices follow an internal, local logic. One that often requires observers to empathise with other cultural expressions and even rethink their own social categories and perceptions. Naturally, this does not mean to say that experts should suspend their judgment (which might be negative in case of practices that appear to be oppressive or violent). Ultimately, there is a difference between agreeing and understanding (and being aware of that difference is key to the quality of the CO expert’s opinion). Rather, this means that experts should approach the phenomena they are called to evaluate with an open, empathetic mind, and then, in the same empathetic vein, they should present their analysis in a way that is understandable to the judge and the people involved in the proceedings.
From a practical point of view, this means that in their reports CO experts cannot take anything for granted. The information they provide has to be conveyed using what anthropologist Clifford Geertz (and philosopher Gilbert Ryle before him) famously referred to as ‘thick description’:3 a rich and detailed - but also vivid and clear - presentation of the materials aimed at illuminating the most complex aspects of the phenomenon at hand.
Significantly, this means that often, in order to explain a particular case or situation, CO experts have to move between different topics and domains. In some geographical contexts, for instance, religion and politics are deeply intertwined and rather than uncritically assuming a Western perspective - which would entail the separation of these two spheres - the expert has to convey this inextricable relation. In many cases, this particular aspect proves crucial in the understanding and in the analysis of specific forms of persecution or discrimination that might otherwise be invisible.
In some contexts, individual religious beliefs - a domain that might appear to pertain to the private sphere - are as much a private matter as a public one. These beliefs might be tied to family reputation and social status, and, as such, they might place individuals in situations where they are persecuted or ill treated. Similarly, in some settings tribal dynamics might be more socially relevant than state dynamics, and in order to grasp certain forms of persecution one has to unpack this multilayered social dimension, showing that notions such as ‘individual’, ‘ family’ or ‘state’ might mean different things in different contexts.
In light of this clarification, it is important to stress that the strength of the written report that is compiled by the CO experts does not stem from their authority. Rather, the effectiveness of these reports comes from the capacity of the experts to be cultural mediators. It stems from the ability to provide understandable explanations of local phenomena that at first might seem un-understandable or even invisible. Crucially, this aspect bears a significance that extends beyond the specific case of the asylum claim with which the expert is involved. More specifically, the work of the CO expert has broader implications, some of which are distinctively political.
The first of such implications is international in nature. Normally, nation states do not appreciate their citizens to be recognised as refugees, as this may imply the state’s responsibility in the violation of its citizen’s fundamental rights. It can also imply lack of willingness or capacity on the part of the state to prevent such violation. This may be regarded as shameful and may attract international political criticism. Hence, in a way, the work of the CO expert is always embedded in a network of wider international relationships. Though experts are supposed to stay as much as possible neutral and objective in the formulation of their opinions, it is important that they are aware of these wider dynamics.
Secondly, the figure of the CO expert has political implications that are domestic in nature. International asylum law provides an exception to the rule that sovereign states have the prerogative to establish conditions for the lawful entry and stay of foreigners on their territory. Therefore, while it is true that judges are called to act independently from politics, it is also true that judicial decisions on matters of asylum have the potential to indirectly affect local political determinations concerning the number and the characteristics of migrants that can lawfully enter and remain within the state’s borders. The information provided by the expert, therefore, may have an effect, big or small, on the domestic affairs of a nation state. This is particularly true in the case of a common law system based on precedents. Once again, it is crucial that experts are conscious of this dimension, though this should not influence their opinion.
Doubtless, as with any other expert, the judge has the last word on the admissibility of the evidence provided by the CO expert. Furthermore, given that often CO expert witnesses are chosen and instructed by one of the parties, the role of the expert is deeply intertwined with that of the lawyers involved in the asylum claim. Lawyers and their teams provide all the relevant material on the case, and frame specific questions to the expert. They too, therefore, have an important role to play with regards to the admissibility of the expert evidence. Nonetheless, the contribution of CO experts remains fundamentally unique.
Ultimately, at the cost of sounding pretentious, one might argue that the presence of these figures as cultural mediators sheds light on the very nature and on the innermost character of the law: its being not only a system of rules, but an inextricable set of norms and interpretations of such norms which are always framed according to specific cultural criteria. These criteria may or may not differ from those of the asylum seeker’ s country of origin. Still, one thing is certain: when it comes to the law, interpreters, actors and decision makers are influenced by cultural parameters, though they are often unaware of such influence.
References
1. In various jurisdictions, this assessment is referred to as ‘reasonable possibility’, ‘real chance’, ‘reasonable chance’, ‘real risk’ or ‘actual risk’. In other words, there must be a ‘real as opposed to a fanciful risk that future events will happen’ (R v SSHD, ex parte Sivakumaran [1988] AC 958; MAH (Egypt) v Secretary of State for the Home Department [2023] EWCA Civ 216 (28 February 2023).
2. On the different kinds of evidence provided by the expert (evidence of fact, opinion evidence, opinion evidence of fact) and on the criteria to assess the admissibility of such evidence see Kennedy v Cordia (Services) LLP (Scotland) [2016] UKSC 6 (10 February 2016), available here: https://www.bailii.org/uk/cases/UKSC/2016/6.html.
3. A ‘thick description’ includes the way in which social actors attribute meanings to their own actions and interpret such meanings. Geertz, Clifford (1973) The Interpretation of Cultures. New York: Basic Books, pp. 3-10.
Funded by Next Generation EU and Ministero dell’Università e della Ricerca, Project PRIN – 2022 Equal - Equitable Algorithms, Promoting Fairness and Countering Algorithmic Discrimination Through Norms and Technologies - Prot n. 2022KFLF3E_001 - CUP J53D23005560001.
Authors
Dr. Elena Consiglio is a legal scholar and a lawyer, she has been acting as expert witness since 2014.
Dr. Igor Cherstich is an anthropologist and a lecturer at UCL, he has authored several expert reports for British courts.