Reconsidering the Asylum Lottery: Refugee Determination and the Structure of Luck

Abstract

An influential body of legal scholarship suggests that luck plays a role in determining who gets refugee status where legal processes operate as a ‘roulette’ or ‘lottery’. These metaphors act as a powerful way of signalling how systems of justice produce unfair outcomes, but scholarship on refugee law has, to date, paid little attention to date on how luck functions as a concept. Drawing from other disciplinary approaches to conceptualising luck, this article uses empirical research on access to immigration advice in England to develop a more critical approach to luck. The findings demonstrate how experiences of luck within immigration systems are connected to structural inequalities and other factors that are often produced by – and can be addressed through – policy decisions. I argue that, as legal scholars, we need to be cautious about accepting individual narratives of luck at face value, because luck implies a lack of control and can therefore work to obscure these more structural issues. Paying closer attention to how experiences of luck are produced and structured by legal processes can, however, also help to expand the conceptual tools that we use to work towards fairer systems of justice.

Introduction

Luck is a common framing of the experiences of refugees. Media stories from around the world tell the stories of ‘lucky’ refugees who, seemingly against all odds, make it to their destination country to settle and build a new life (ABC News, 2016a; Daily Mail, 2016; The Economic Times, 2015), whilst those refugees who do not make it safely to their destinations are described as ‘unlucky’ (Calais Solidarity, 2016; NPR, 2021). Refugees themselves often describe how their own experiences have been influenced by luck (ABC News, 2016b; Belloni, 2016, 2019; Médecins Sans Frontières, 2016; Refugee Council, 2015; UNHCR, 2011; World Economic Forum, 2015).

In legal literature on refugee and asylum law, the idea of luck is mobilised to draw attention to unfair legal processes that result in different outcomes for similar types of asylum applications. Metaphors of ‘roulette’ and ‘lottery’ are applied to explain why some people get refugee status, when other people with similar claims do not. In the United States, Ramji-Nogales et al. (2007) developed the ‘refugee roulette’ metaphor to explain why people are likely to receive different outcomes on their claims depending on the location of their asylum appeal hearing and the random assignment of the judge. The idea of refugee roulette has been influential in legal scholarship (Ramji-Nogales et al., 2009; Sanderson, 2010) and applied across different jurisdictions to develop understanding of patterns in inconsistent administrative decision-making (Burridge and Gill, 2017; Ghezelbash et al., 2022; Kallinosis, 2017; Liew et al., 2021; Rehaag, 2008, 2012, 2019; Schneider and Riedel, 2017). Similarly, in the European Union legal scholarship draws attention to the role of luck in determining asylum outcomes (Camboulives, 2017). The European Commission has explicitly stated that ‘asylum must not be a lottery’ (European Commission, 2014: 3), but despite this, representatives of the refugee sector maintain that a lottery still exists for people seeking protection (European Council on Refugees and Exiles, 2022) and that this is a situation likely to persist (Bodeux, 2023).

Although the use of the roulette and lottery metaphors is widespread, literature on refugee and asylum law has so far been limited in its engagement with how luck functions as a concept to expose issues of structural inequality. This parallels a similar gap that Sauder (2020) highlights for sociological literature, which he argues has failed to systematically engage with questions of luck. Socio-legal research is well placed to address the gap in the conceptualisation of luck in relation to asylum law and policy, but there has not been any such engagement to date. To address this gap, I bring together literature from sociology, political philosophy and law, with empirical evidence from my own research, to demonstrate why conceptualising luck is important for informing how scholarship addresses questions of choice, inequality and responsibility. When discussing experiences of luck, scholarship needs to be conscious of the structural factors that mean some people are more likely to benefit from the effects of luck than others, and how the idea of luck functions in relation to responsibility. Otherwise mobilising the idea of luck risks shifting accountability away from actors with varying degrees of individual and collective control over the systems that determine refugee outcomes.

Methodology

My interest in the conceptualisation of luck within legal processes of asylum determination developed during my empirical research on access to immigration advice, for people with asylum and other human rights claims, in the South West of England. During 11 months of ethnographic fieldwork in 2016/17, I investigated how refugees, asylum seekers and people with other categories of human rights claims engage with the legal process of regularising their immigration status with limited access to legal advice. The policy background for the research is the provision of legal aid for immigration and asylum matters in England and Wales. In the British context, legal aid is a statutory scheme financed by public funds and intended to ensure that access to legal advice and representation is available to ‘those most in need’ (Ministry of Justice, 2019).

Legislation introduced over a decade ago placed significant limitations on the availability of immigration legal aid in England and Wales. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) made broad cuts to the funding of legal aid by removing immigration legal aid from the general scope of the scheme. As a result of these cuts, LASPO has created immigration ‘advice deserts’, which are areas where free legal advice and representation is either very difficult to access or entirely unavailable (Burridge and Gill, 2017; Wilding, 2021). Since conducting my fieldwork in 2016/17, advice deserts have continued to expand, limiting access to immigration advice across large areas of England and Wales (Rourke et al., 2023). The low fees paid to legal aid providers have exacerbated the spread of advice deserts, and in response to this, the government has recently announced a planned increase in the payment of immigration legal aid fees (Ministry of Justice, 2024), although it will be some time before the impact of this change can be measured. Previous research on immigration advice deserts in human geography identifies luck as one factor that determines whether people are able to access advice in these areas (Burridge and Gill, 2017). Following this, in this article, I draw from my empirical research on access to legal advice to inform a more detailed conceptualisation of luck.

My research is informed by my work with refugee communities in various capacities (paid and voluntary) in the South West since 2008, and the acute challenges that I have witnessed people encounter through the asylum process. The research presented in this article was developed in partnership with a local refugee charity to focus on improving access to immigration advice, as this was one of the issues commonly faced by the people who use their services. During my fieldwork, I spoke to people about their experiences of advice-seeking or supporting others to seek advice, including why people seek advice, the consequences when advice is not accessible and how to improve local service provision. This article draws primarily from qualitative data collected via a small sample of interviews with seven people about their experiences of seeking advice. The interviews discussed are part of a larger body of evidence collected during my fieldwork in 2016/17 with a total of 21 people based in a specific locality, including staff and volunteers at organisations providing advice services, and a group discussion with eight representatives of local advice organisations. I received ethical approval prior to conducting the research. All data has been anonymised and pseudonyms are used for all participants.

In this article, I consider the experiences of people with asylum claims or refugee status, as well as other types of human rights-based immigration cases. In work that discusses how Eritrean refugees see their attempts to migrate as a ‘lottery’, Belloni (2019) argues that making a clear distinction between voluntary and forced migration is problematic for theoretical and political reasons. Although refugee status occupies a unique position in international law, which signals the severity of the risks people face (Hathaway, 2007), making a distinction between whether people are forced to migrate or choose to migrate does not reflect the complex reality of the situations that many people face when moving across borders (Belloni, 2019; Crawley and Skleparis, 2018; Erdal and Oeppen, 2018). This article contributes to understanding of how legal advice influences the success of refugee claims (Bianchini, 2011; Liew et al., 2021; Ramji-Nogales et al., 2007; Smith-Khan, 2021) by examining how the accessibility of immigration legal aid shapes the choices that individuals make, and the types of immigration applications that individuals are able to pursue.

Although the idea of luck is significant in research on the outcomes of legal processes of refugee determination, I am cautious about over-emphasising the significance of individual narratives of luck. This is because, as the discussion below demonstrates, luck can function conceptually to conceal privilege as well as to expose it, as well as influencing perceptions of responsibility. I use the example of access to legal aid to show how experiences of luck in immigration systems do not take place against a neutral backdrop: they are structured by social conditions and policy decisions that produce relative types of advantage.

Context: Hassan's Experience of Luck

During my research, I spoke with Hassan, a Syrian refugee living in England, who explained that he felt the fact he was in the United Kingdom came down to luck:

Since the war started, I’ve never stopped thinking that it's so unfair that I’m here as a father, or that the most difficult day for me is when my son is not having enough playtime or something like that. Whereas there are fathers like me in Syria, and all over the world, who are just struggling to keep them alive.

Because it's so unfair I kept feeling that just to be able to live with myself, I have to do something, no matter how minimal it is, just to help some people. It's like a drop in the ocean, anything that I do, but at least it would help someone. It's better than nothing.

And on a selfish note, it will make me justify a little bit more my comfortable life here. You see there's absolutely nothing fair about us being under the same sky and just by that lucky strike that I came here just before the war, and people like me, and maybe better than me, were stuck. It's just not fair. But if you don’t just listen and watch and grieve passively at least you’ll be able to live with yourself. (Emphasis added).

Hassan's words have been significant to my own thinking about luck, because although Hassan explained how he felt lucky to have arrived before the war in Syria started, his experiences were not just down to chance: there were other factors that influenced his experience of the legal system.

Hassan was in a relatively privileged position because he was already living in the United Kingdom when the war started in Syria, which enabled him to make an asylum application once his existing visa was coming to an end. It is important to acknowledge that although refugees do not generally experience a privileged form of movement, individuals within immigration and asylum systems can experience relative forms of advantage. In the field of migration studies, research by Van Hear (2014) reveals the significance of class in determining who is able to move and how, as access to economic, social, cultural and symbolic capital play a role in determining individual mobility. Van Hear also acknowledges that generally the ‘poorest of the poor’ are less likely to move than others who are more privileged (2014: 111). These issues are not isolated to destination countries, as the stories I tell below demonstrate, they continue to affect how individuals interact with legal systems that determine immigration status, placing some people at a relative advantage when seeking asylum or making other immigration applications.

Hassan's story also shows how feelings of luck can produce feelings of responsibility for others. Hassan describes how feeling lucky makes him feel responsible for those less fortunate than him. His account is similar to the ‘survivor guilt’ experienced by people who survived the Holocaust: the feelings of ‘guilt, shame and grief’ that arise when survivors feel that they are ‘alive in place of others or at the expense of others, no less deserving or, indeed, more deserving to live than them’ (Fimiani et al., 2021: 178). Work in anthropology acknowledges that people who feel lucky often feel to blame for the misfortunes of others, even where these conditions result from factors beyond their own control (Kuan, 2017). As feelings of luck can produce feelings of responsibility, self-blame or guilt, as legal scholars we must take care in how we discuss the idea of luck to avoid reproducing this blame or removing individual agency. Paying attention to the ‘appropriate conceptual tools’ to discuss structure and agency in relation to migration is important to avoid framing people as ‘victims of circumstance and/or culpable for their situation’ (Squire, 2017: 255).

Hassan's experience raises important questions about the framing of luck (Sauder, 2020), particularly how we should interpret narratives of luck and understand the discursive effects of these narratives. When an individual describes themselves as ‘lucky’, what does this mean? To what extent do feelings of luck conceal or expose structural inequalities? And what are the implications for political responsibility and accountability when discussing the role that luck plays in determining the outcomes of legal processes?

What is Luck?

In liberal political philosophy, luck is often understood to be what happens to a person for reasons beyond their own control (Nagel, 1979; Nussbaum, 1986. For why this is problematic, see Dowding, 2010). This conception of luck can be traced back to Greek ethics, in which luck was not equated with events that are generally random or uncaused but used to explain what happens to a person for reasons not of their own agency (Nussbaum, 1986). Greek philosophy therefore sought to take control of luck and protect human life from luck ‘through the controlling power of reason’ (Nussbaum, 1986: 3).

Debates in contemporary political philosophy explore the relationship between agency, choice and control, and how theory should respond to the effects of ‘bad luck’. Luck egalitarianism is an influential area of political philosophy that broadly claims material inequalities should be addressed where these exist for reasons beyond individual agency that ‘do not derive from choice responsibly and freely made’ (Dowding, 2010: 71). Luck egalitarians argue that where people suffer the effects of bad luck for reasons beyond their own control and through no fault of their own, the inequalities arising from this bad luck should be addressed through the redistribution of resources (Dworkin, 1981; see also Knight, 2013).

The work of Dworkin (1981) has been influential in shaping luck egalitarian debates over luck, equality and responsibility. Dworkin established a distinction between two main types of luck: ‘brute luck’ and ‘option luck’. ‘Brute luck’ is a type of undeserved bad luck that an individual has no control over and for which they cannot be held responsible, while ‘option luck’ is the good or bad luck that results from the choices that an individual makes. Dworkin's argument suggests that where option luck results in material inequalities, the principle of justice does not demand that these inequalities should be addressed, but where people suffer from brute luck, resources should be redistributed to address inequality (Knight, 2013). Brute luck, therefore, generates inequalities that are not the result of individual choice and can be viewed as the ‘absence of’ individual responsibility (Vallentyne, 2008: 58). The argument that refugees experience brute luck due to circumstances beyond their own control has recently been used to justify policies of refugee burden sharing between countries (Hirt, 2021).

Anderson (1999), who coined the term ‘luck egalitarianism’ in response to the work of Dworkin and other egalitarian theorists, was critical of arguments for equality premised on the need to address the effects of bad luck. Anderson argued that by the time she was writing at the end of the 1990s, egalitarian writing in liberal political philosophy had come to be ‘dominated by the view that the fundamental aim of equality is to compensate people for undeserved bad luck – being born with poor native endowments, bad parents, and disagreeable personalities, suffering from accidents and illnesses, and so forth’ (1999: 288). Anderson makes an important point that the purpose of egalitarian justice is ‘not to eliminate the impact of brute luck from human affairs, but to end oppression, which is by definition socially imposed’ (1999: 288). Acknowledging that conditions of injustice are socially imposed is important in the refugee context because structural processes that produce conditions of oppression or injustice for refugees often result from intentional and deliberate policy choices that are within the collective control of societies and that can be changed (Hillier-Smith, 2023).

Anderson's (1999) critique of luck egalitarianism presents three key arguments: first, that luck egalitarianism views those who make bad choices as deserving of the resulting inequalities that they experience; second, that the luck egalitarian perspective encourages those with bad brute luck to be pitied, undermining human dignity; and third, that attempting to distinguish between the choices that people make and the types of luck that they experience results in ‘demeaning and intrusive’ judgements (Anderson, 1999: 289) about the capacity of individuals to exercise their freedom responsibly (for a summary of Anderson's critique, see Knight, 2013). A further practical issue with luck egalitarianism is that making a clear distinction between whether an individual's actions have contributed to their luck, or not, is often impossible (Dowding, 2010). This is relevant for considering the circumstances of refugees given the problematic distinction between voluntary and forced migration (Belloni, 2019; Crawley and Skleparis, 2018; Erdal and Oeppen, 2018). These elements of critique suggest that mobilising the concept of luck to describe refugee outcomes requires closer consideration.

An Empirical View of Luck

This article takes an empirically grounded approach to defining and understanding the role of luck in legal processes, drawing from Sauder's (2020) conceptual framework of luck for sociology. Sauder defines a lucky event or occurrence as ‘one that involves chance, is consequential (either beneficial or harmful), and is at least partially outside the control of the person or people affected by it’ (2020: 195). Sauder's definition explains that chance is not the same as luck: chance can influence a lucky outcome, but a lucky event is something that is consequential, meaning it has a good or bad effect. Crucially, luck is defined by events that take place at least partially outside an individual's control, and a key empirical question relating to luck is ‘how much control a person has (or is perceived to have)’ (Sauder, 2020: 195).

Sauder (2020) argues for greater attentiveness to luck on the basis that sociologists have often tried to explain away luck by attempting rationalise structures and institutions. Sauder suggests that taking account of luck can add an important perspective to theories of structural inequalities, by ‘helping to specify the importance of the large-scale forces (the forces of social institutions, of history, of nature) that people are subject to and pointing to the limits of self-determination’ (Sauder, 2020: 210). Accounting for luck can therefore provide an additional dimension to theorising structure and agency, going beyond explanations that explain the structural factors affecting refugees as solely produced or reproduced through human agency (e.g., as understood through structuration theory, see Healey, 2006). Sauder instead argues that as scholars we need to take account of the ‘untamed randomness of luck’ and the effect that this has on social structures (Sauder, 2020: 210).

Additionally, Sauder identifies two ways in which sociology can approach luck through empirical research: first, luck can be researched as an idea that is socially constructed, which for example requires investigation into how people perceive luck, how they define it and whether they believe in it or attribute their successes or failures to it. This first approach raises further questions about the framing of luck: when we can legitimately frame events as the result of luck or invoke luck as an explanation for the outcomes of events. My interest in luck, discussed through this article, is around this question of framing and under what circumstances the experiences of refugees should be described by others through the frame of luck. The second approach to the study of luck is that it can be approached as a real phenomenon with real effects that can be studied. Existing empirical studies of ‘refugee roulette’ (Ramji-Nogales et al., 2007) align more closely with this second category, helping to expose the elements of chance that can influence the outcome of legal processes, and which exist at least partially beyond individual control.

Structural Luck in Immigration Systems

Lotteries that operate based on pure chance should, in principle, produce a fair system of distribution where all participants have an equal chance of winning (Fineman, 2000; Imoagene, 2024). Far from indicating a lottery in the usual sense of the word, the idea of an ‘asylum lottery’ indicates a more structured form of luck where outcomes are influenced by a system that is unfair in its design: individuals do not have even chances of success as outcomes are affected by structural factors.

The ‘refugee roulette’ study (Ramji-Nogales et al., 2007) is an example of work that implicitly exposes the structured effects of luck by highlighting the various factors that increase or decrease an individual's chances of success in winning their asylum appeal. Based on large-scale statistical analysis of refugee determination appeal outcomes across the United States, the findings demonstrate how specific factors such as the sociological characteristics of judges, including the gender of the judge and their prior work experience, or whether an individual has good quality legal representation, influence the likely chances of different outcomes for appellants. The authors of the ‘refugee roulette’ study conclude that ‘serious disparities’ exist in decisions for applicants from particular countries (Ramji-Nogales et al., 2007: 328), and an individual's country of origin can result in it being either much less likely, or much more likely, that their claim will be successful depending on the location of the court that hears the case and the random assignment of the judge. The authors of the study use the inherent unfairness of this ‘roulette’ effect to argue for a number of specific reforms to improve consistency, such as improving the quality of judicial training programmes (Ramji-Nogales et al., 2007).

In his argument for paying greater attention to luck, Sauder suggests that failing to take account of luck leads to a conceptual blind spot for addressing inequalities because the effects of lucky events can be ‘systematically conditioned by social position’ (Sauder, 2020: 200). Recent research on the Diversity Immigrant Visa (DV) Program in the United States (Imoagene, 2024) explicitly demonstrates how luck is structured in immigration systems through in-built biases that work to benefit some groups over others. Imoagene (2024) develops the concept of ‘structured luck’ to show that under the DV Program, which uses a lottery system to select visa applicants, the idea of luck is promoted although ‘an organised and structured process governs every step of the way’ (Imoagene, 2024: 5). Who succeeds through the lottery is influenced by other factors, including education and wealth, and in reality only the most skilled applicants can proceed through the system making it is ‘a visa for highly skilled immigrants’ (Imoagene, 2024: 159). Unlike the DV Program, asylum systems are not intended to operate as a lottery, but the ideas of ‘roulette’ or ‘lottery’ are used to indicate that chance plays a role in determining individual outcomes.

The concept of structural luck that I advance is inspired by an episode of the BBC radio show and podcast Thinking Allowed (BBC Radio 4, 2016) in which host Laurie Taylor is joined by two guests: Robert Frank and Lynsey Hanley. The discussion centres around Frank's (2016) book Success and Luck: Good Fortune and the Myth of Meritocracy, in which he argues that luck can be used to challenge the myth of meritocracy in the United States. For Frank, recognising the role of luck is important because it challenges the idea that people can become successful through hard work, a belief that he views as pervasive in the United States. Frank's work on luck encourages rich and successful people to accept that their success is not only down to hard work but that luck also plays a role in their good fortune.

The conversation between Frank and Hanley sparks an important observation in terms of the political implications of theorising luck. Reflecting on her own research in Britain, Hanley expresses the importance of class in relation to the critique of meritocracy that Frank puts forward, suggesting that while reading Frank's work she was struck by how ‘luck has a structure, there is a structure of luck’ (BBC Radio 4, 2016: emphasis added). The idea that luck has a structure indicates that experiences of luck are closely tied to socio-economic inequalities, providing a basis for understanding how structural conditions can facilitate experiences of good or bad luck. Sauder (2020) acknowledges that Frank's work highlights why paying greater attention to luck can have implications for policy because failing to recognise the effects of good luck arising from privileged socio-economic positions ‘makes us less likely to contribute to the infrastructures and environments that provide us with the opportunities to be successful (to have the chance to be lucky) in the first place’ (Sauder, 2020: 201). One argument for paying closer attention to the role of luck within legal scholarship is therefore that it can provide the impetus to address underlying structural inequalities through policy choices that produce or exacerbate experiences of luck.

Differently to Frank's argument, I do not seek to encourage refugees to view their own experiences as a matter of luck, although I respectfully acknowledge that individuals may choose to articulate their experiences in this way. I do however see a need to differentiate between experiential perspectives of luck, for example, where scholarship is informed by migrants or refugees’ own perceptions of luck (see e.g., Belloni, 2016, 2019; Gaibazzi, 2012, 2015) and analytical uses of luck within academic literature where luck is used to indicate a lack of control because the key questions become whose perspective does this represent and what can it tell us about who has more or less control over the factors that produce perceived luck. In the next section, I consider examples from my own research to demonstrate how structural factors influence the outcomes of legal processes through access to advice, often producing the appearance of luck but organising this in particular ways. These examples are significant for considering the relationship between both luck and privilege, and luck and responsibility, and crucially why the conceptualisation of luck matters for the study of law and society.

Luck and Privilege: Who is Lucky?

In everyday conversational usage, luck can stand in for privilege. For example, if someone explains how ‘lucky’ they are to enjoy a lavish lifestyle, they may legitimately feel lucky, but it can suggest an experience of privilege that is not necessarily based on personal merit (Frank, 2016). The discussion between Frank and Hanley (BBC Radio 4, 2016) indicates that some people are more likely to benefit from ‘good luck’ than others, a point also highlighted by Imoagene's (2024) work on the DV Program in the United States: not everyone who wins the lottery can go on to acquire a visa, there are other skills and resources that are required.

In their research on immigration advice deserts, Burridge and Gill (2017) argue that where legal aid is difficult to access resulting in a lack of choice, luck plays an increased role in influencing individual experiences of the legal process. The findings presented by Burridge and Gill indicate that whether someone is able to access high-quality legal representation ‘frequently hinges on whether they received useful information from others within their community, or happened to walk into the right drop-in centre at the right time and talk to the right person’ (2017: 33). For my participants, this was also true: factors beyond their individual control often had a significant impact on the progress of their case, and these were also often connected with structural conditions that produced relative forms of advantage or disadvantage. Although Hassan explained that he felt lucky, to what extent was his experience influenced by chance, and what were the other factors at play?

Hassan was unable to access legal advice before making his asylum claim but felt able to pursue an application in any case, based on his understanding of the system. Hassan explained that his level of education (he came to the United Kingdom to study) and the country he was originally from (the policy for granting status to Syrian refugees was more generous than for refugees from other countries) helped him to navigate the asylum process even though he was unable to access any legal advice. Hassan tried to contact some advisers with legal aid contracts by telephone, but no one was able to see him locally, and it was too expensive for him to travel to London. Hassan felt confident about his language and knowledge of the system because he had already been living in the United Kingdom prior to making his application. He also had social networks that helped to inform his decision, as he had heard from friends that most Syrians in his situation were being granted asylum. Hassan explained that he carefully read the available information and was able to prepare his evidence on the basis of this:

I read every single word that was written on the government website about asylum and about Syria and then I prepared my case against the criteria that they mentioned for accepting or refusing applications. I kind of told my story in a way that makes it very clear for anyone who's going to read my case that corresponds with what you say is a reason for getting asylum. So I think that's the way it helped, that I can research well, and I can produce a piece of writing that is formatted well and corresponds to things that they mention are necessary.

Sauder argues that the luck involved in any outcome is an empirical question because the degree of luck or control involved will be perceived differently, depending on ‘who is doing the framing and their interests’ (2020: 203), meaning that whether a particular scenario can or should be described as the result of ‘luck’ often depends on who is speaking about it. Although Hassan described his experience through the frame of luck, his circumstances indicate that other factors, including his educational background and social networks, influenced his experience of the asylum process. These did not guarantee a positive outcome but allowed him to take a calculated risk to apply for asylum without any advice on this. Hassan's account suggests that although refugees can legitimately feel lucky, feelings of luck do not always represent events based on pure chance and can also indicate the underlying foundations of immigration systems that structure experiences of luck and privilege for some groups over others (see also Imoagene, 2024).

Other people I spoke with also emphasised how their educational background or contact with friends had helped them to navigate difficult issues, including where they received poor quality advice. For example, Karim initially paid for a solicitor because he did not know about legal aid, but the solicitor he paid helped him to make a human rights application that was initially refused. He was told he would have to pay more for an appeal, so a friend helped Karim to contact a local refugee charity, which referred him to an adviser with a legal aid contract. Following this, Karim was able to make an application with the help of legal aid and although he was unsuccessful in getting refugee status, he was given discretionary leave to remain. The adviser helped him to appeal this, and Karim then received humanitarian protection. Individual accounts such as Karim's indicate that although ultimately being able to access good quality, specialist advice is often critical to the types of applications that individuals are able to submit, where there is limited or no choice, other resources, including social connections, can help some individuals to navigate the system more effectively.

Burridge and Gill (2017) discuss the ‘strategies’ used by asylum seekers to navigate the structures that produce moments of luck, including finding contacts to help with signposting to good quality advice, or approaching charities for assistance, but they also acknowledge that there are some structural challenges that ‘any amount of personal resilience and persistence may not be enough to overcome’ (Burridge and Gill, 2017: 38). Research on civil justice shows that personal connections, including family and friends, often play an important role in facilitating access to advice services (Smith and Buck, 2015). However, not everyone who encounters the immigration system has these connections, and even when they do, they may feel unable to tell their friends and family about their insecure immigration status. For example, Zainab explained that she needed help to find advice funded by legal aid, because ‘it's not our country, we don't know so many things that [are] going on’. She described how some people would not necessarily want to talk about their immigration status, even if they knew other people that might be able to help, such as friends and family, saying: ‘for some people they do not feel confident to sit – like we are, to sit together – and talk about [their] problem. Some people they just wanna hide their story, they don’t want people to know what's going on’.

Zainab's comments demonstrate how individuals often have to make difficult choices within existing structural constraints, including the choice not to seek assistance from others. From a luck egalitarian perspective, it is unclear whether this should be viewed as brute luck or option luck: if it is seen as brute luck because it is a choice not freely and responsibly made (Dowding, 2010), then there might be a stronger moral imperative to address the consequences. Following Anderson's (1999) argument, however, this has the potential to cast these individuals as victims of circumstance and subjects of pity. Brute luck egalitarianism is also seen as problematic because it does not account for partial responsibility, for example, by addressing the effects of bad luck where individuals are not ‘substantially responsible’ for their circumstances (Arneson, 2000: 340), nor does it account for different types of choices that make people appear more or less deserving of help than others (Knight, 2021). Focusing on the extent to which individuals can be seen as responsible for their own bad luck under oppressive immigration systems is, however, counterintuitive to justice, because it averts attention away from the structural processes that create circumstances in which individuals must make difficult decisions. As Anderson's (1999) critique of luck egalitarianism indicates, understanding the extent to which individuals experience bad luck through chance or choice does not account for the ways in which oppression is socially imposed, and therefore overlooks the responsibility that other actors can play in shaping inequalities. It is therefore important to carefully consider whether luck legitimately plays a role in shaping individual experiences to avoid narratives that frame refugees only as victims, whilst simultaneously acknowledging the social contexts in which refugees make decisions over their own lives, and the constraints that these conditions can place on individual agency (Belloni, 2019).

In terms of the structural, institutional processes that influence individual chances of success in the absence of advice, one significant reason that people need to be able to access the appropriate type of legal advice is the complexity of substantive immigration law (Law Commission, 2019). Since I carried out my fieldwork in 2016/17, significant legislative changes have increased the complexity and hostility of the laws affecting migrants and refugees. For example, the Nationality and Borders Act 2022 and the Illegal Migration Act 2023 have been criticised for making the legal rules more complex and chaotic (Refugee Council, 2024). There have been further changes to the law following the election of a new government in 2024, including an amendment to the Illegal Migration Act 2023 to allow a backlog of asylum claims to be processed (The Illegal Migration Act 2023 (Amendment) Regulations 2024). The new government has also stated it will not implement the highly controversial Safety of Rwanda Act 2024 (OHCHR, 2024) and will introduce a new Border Security, Asylum and Immigration Bill (Prime Minister's Office, 2024). In an area of law where changes can be complex, fast-moving and have a critical impact on individuals, access to good quality immigration advice is essential.

During my interviews, the need for advice due to the complexity of immigration matters was expressed by Mariam, a woman from West Africa who had been living in the United Kingdom for more than ten years when she decided to see an immigration solicitor. Having overstayed her original visa, she wanted to regularise her stay, and she did not know how else to go about it. Mariam said that she knew some immigration cases could be complex, and hers would be one of these. She explained to me:

There was no legal aid, so we had to pay for the first consultation. It was very expensive, but we had to pay because I needed to get that immigration advice, because you don't know what to do at first, because sometimes some cases are a bit complex that you don't really know what to do. You definitely need an adviser to help you.

Not knowing what to do by herself, Mariam decided she would need help from an adviser. At the beginning of her application, Mariam's husband was working, so the family had some money to pay for private advice. When this money ran out, they became destitute.

Mariam's story highlights a couple of important points. First, it is an example of how experiences of the legal process can be influenced by the type of advice an individual is able to access. Mariam told me that although she was scared to return to her country of origin, she also had grounds for a human rights application and sought advice because she felt that it was important to have legal knowledge of the system prior to submitting an application:

When you see a solicitor – an immigration solicitor you are just a layman. You don't know anything about an immigration case. And when the solicitor tells you: ‘oh yeah, this is what you qualify for, and that is true’ it helps you to know where you stand. It helps you to know the possibilities for your case, whether you might get this status, or you might have to wait longer for that, or those sorts of things. And nobody wants to go back to a place where they were scared.

Mariam made an application on the basis of having a family in the United Kingdom because she was advised to do so by her solicitor, despite being fearful of returning to the country where she was born. From the information Mariam gave me, it was not possible to determine whether she had a potential asylum claim, but other participants, including Karim, and Mohammed whose story I explain in the next section, raised similar issues where the type of advice that they received guided them down a particular application route, even when this later turned out to be clearly incorrect.

Second, Mariam's account indicates how navigating the legal process is saturated with uncertainty, even for people who start from a relative position of advantage. Alongside the frame of luck, Burridge and Gill (2017) argue that uncertainty plays a central role in producing the precarity experienced by asylum seekers. When Mariam encountered problems with her solicitor and ran out of money, she had to seek other ways of moving her case forward, such as writing to the Home Office herself and contacting her local Member of Parliament. When I asked whether she felt any of these strategies had helped, she replied ‘I don't know if it's a 50/50 chance, I think it depends on the circumstance’. In Mariam's case, all of the people around her, including her family, had citizenship, and most of her friends were British. The only person she knew who had dealt with the Home Office was her husband, but he was well educated, and she was able to use her prior knowledge from his case to help her navigate the issues that she was facing. Despite this, she still felt that ultimately any strategies that she took to engage in the process would have uncertain outcomes and came down to chance in the end. Mariam's comments exemplify how feelings of luck can exist when individuals are deprived of choice and certainty.

When people are unable to afford to pay for advice and are also unable to access legal aid, the sense of uncertainty that they experience is intensified. At the time I spoke to Zainab, she needed to renew her visa but did not have enough money to pay for advice. She told me:

For now, I don’t know what I’m entitled to for [my] next [application], or what money I have to pay for it, so I don’t have any clue. I’m so worried for that. I know it's not there yet but I’m thinking if the right time came, and I don’t have anywhere to go for help to have support, it is going to be really bad for us.

Zainab's words indicate the lack of agency that she felt she had without access to legal advice. Although placing limits on individual agency can be disempowering and play into narratives of helplessness and victimhood (Evans, 2012), it is important to acknowledge that individuals often feel and articulate a lack of control of their own circumstances. The illusion of luck can also make people feel that they are caught up in a complex and uncertain set of processes where they have little agency, when in fact these uncertainties or risks do not relate to chance factors but structures that are the result of direct and avoidable policy choices (see Hillier-Smith, 2023). Rather than interpreting individual experiences of good or bad luck in isolation, it is therefore necessary to identify what these experiences or framings of luck tell us about wider structures, including the policy choices that exacerbate structural luck based on existing inequalities, or in other words, why some people are more likely to benefit from (perceived) luck than others.

Luck and Responsibility: Who is Accountable?

Acknowledging how policy decisions can structure individual experiences of luck is important because the idea of luck can shift perceptions of responsibility. Hassan's feeling of responsibility for others resonates with the Thinking Allowed conversation, in which Hanley describes her own experiences of success in breaking away from her working-class background. Hanley says: ‘I was incredibly lucky [. . .] I did really well, and I felt intensely burdened with [the] knowledge it should have happened to everyone else, but it only happened to me’ (BBC Radio 4, 2016: audio). Although refugees may choose to speak about their own experiences through the frame of luck, Nayeri (2019) observes that refugees should not have to feel grateful or lucky for living in another country, and even where they do possess these feelings, these should be personal rather than expected or compelled by others.

Very differently to Hassan's experience, during my time working in refugee communities, I have witnessed many people struggle to deal with their cases in the absence of legal advice, including people who have chosen not to do anything to resolve their status for prolonged periods of time due to the anxiety and uncertainty of engaging with the Home Office. Although Hassan felt lucky to be in the United Kingdom and was successful in seeking asylum without legal assistance, most of my participants expressed serious concerns about the difficulties that they faced when they were unable to access a lawyer, sometimes with extremely serious consequences.

One example of someone who was unable to resolve his immigration status without legal advice was Ali, a refugee from Iran who waited for over a decade to get his papers. Ali's case was initially refused by the Home Office after he arrived, but he was never removed from the country. For years, he had no legal representative and there was no progress on his case. Eventually, he found a solicitor to help, but this was only through the help of a friend who he knew from the South West and who had moved to London. Ali explained:

I [had] a friend, he was living [in the South West] and now he's living in London. He's Persian, he told me that ‘there's a good solicitor why you not coming? This solicitor is working for somebody who is living here more than seven years’. Then I went to [the solicitor] and he told me ‘you should have an address in London. Then I’ll work for you’.

It was only with the help of this solicitor that Ali was able to make a further application. And when his application was refused, he won on appeal with the help of his legal representative.

Ali had been unable to afford to pay for legal advice and during the time that he spent without refugee status he spent many years homeless and destitute. This had a traumatising effect on Ali. Ali explained: ‘it was very unhappy and upsetting. It was very bad. You don't have accommodation and you can't work [. . .] I got many nasty things or unhappy things. It is not nice, you live in a country and you don't have any rights to work or to get any rights’. During the time that Ali was waiting for his case to be resolved he was unable to visit his family. Some of Ali's family, including his parents, died during the time that Ali was unable to see them. These were events beyond Ali's control, but it would be problematic to suggest that Ali's experiences were just a matter of bad luck: there are a number of controllable factors that could have helped Ali much sooner. For example, had Ali been able to access free, good quality advice much earlier, the trauma he experienced during his wait for refugee status could potentially have been avoided. Nor is Ali's experience unique, many people who are unable to access legal aid become stuck in a state of limbo, unable to leave the country and unable to regularise their immigration status (O’Nions, 2020).

One problem with framings of luck that suggest some people are lucky while others experience bad luck through no fault of their own, is that making these types of judgements can alter perceptions of moral responsibility. The idea of moral luck considers the extent to which individuals can be judged for the consequences of their actions that are beyond their individual control (Nagel, 1979; Williams, 1981). Pritchard and Smith (2004) argue that debates over the idea of moral luck reveal how perceptions of luck can alter our moral judgements, or how we judge the outcomes of events in moral terms. If someone is seen as lucky or unlucky, they may be seen as more or less responsible for the outcomes of their actions, and therefore also more or less deserving. The ‘brute luck’ luck egalitarian viewpoint taken by Dworkin (1981) argues that individuals should be compensated where they experience bad luck through no fault of their own, but this can shape perceptions of who is or is not deemed deserving of compensation, and therefore also influences whether there is political accountability for the inequitable treatment of different individuals or groups. Anderson (1999) resists the idea that the imperative of justice should respond to inequalities that arise from bad luck or accidents of birth, such as the place where someone is born or the parents they are born to, emphasising that ‘people, not nature, are responsible for turning the natural diversity of human beings into oppressive hierarchies’ (1999: 336).

Legal literature that engages with the idea of ‘refugee roulette’ indicates that one way to take control of the influence luck at a structural level, and make refugee outcomes more consistent, is through the provision of good quality legal advice and representation. Providing a secondary analysis of the refugee roulette study, Liew et al. (2021) argue that lawyers play a more significant role in determining the outcomes of refugee status than previously accounted for in the literature. Liew et al. see this as ‘good news’ (2021:71) because it provides lawyers with the opportunity to make positive changes to the legal process through the quality of legal representation provided to individual applicants. Improving access to legal advice is, therefore, one potential way to reduce the structural effects of luck.

Although lawyers can play a role in improving access to advice, the responsibility does not and should not fall only to lawyers. Research on advice deserts shows that although many legal aid lawyers are ethically motivated to improve experiences of the legal process for their clients, policy decisions restrict the work that they are able to undertake: legal aid lawyers often have to make the decision to either provide good quality advice to a small number of people or to compromise the quality of advice to deliver financially viable services (Wilding, 2021). During my research, people often expressed concerns about the quality of advice where it was available, and four of the people I spoke with (Zainab, Karim, Mariam and Mohammed) were directly affected by issues around the quality of the advice they had received at various stages of their asylum or immigration cases. Issues that individuals experience in relation to the quality of advice are exacerbated by advice deserts because it is difficult for individuals to find an alternative adviser if they believe they have received incorrect advice (see also Wilding, 2021). My participants also described examples of unethical practice, for example, private solicitors taking on immigration cases without telling individuals that they may still be eligible for legal aid under LASPO via a separate application process (the Exceptional Case Funding scheme).

Although in theory lawyers can work to reduce the effects of structural luck, in practice the options available to lawyers given the broader policy context are often limited. Some lawyers attempt to fill the gaps in legal aid provision through low-cost alternatives to legal aid, such as the unbundling of services, fixed fees and short, free consultations. These provide some limited legal assistance but do not always resolve the immigration issue because an individual may be told that they have grounds for making an application but are then unable to afford any further legal assistance with the application. In these situations, individuals can become caught in a complex immigration situation without knowing how to progress their case. For example, Ibrahim told me that he visited Citizens Advice (CA) and they mentioned legal aid, but they also told him about a free consultation at a nearby service, so he chose that. This decision resulted in him not receiving appropriate advice for his situation for many months:

I went to see the [CA], so the lady in the CA she mentioned legal aid and me being destitute. If I was destitute, it would be easier for me to get legal aid, but there is no more legal aid here, the nearest is Bristol. So I spoke to the CA lady and everything is confidential there, so basically she told me with my case I need to be… if I'm destitute I would be able to be fine with the legal aid. So that's the only moment she told me. And then the free service was to see a solicitor for free half an hour, so I went there twice. The solicitor was kind of expensive, £2,800, so I wasn't able to provide that money and still I have no money to… because I have no income it's all about money really, if I had the money, I'm not worried.

In Ibrahim's case, the need to travel for up to two hours to get advice meant that he opted to attend a free consultation, but he was told he needed to pay for further assistance. As a consequence, he was left destitute for months without being able to access appropriate help to resolve his immigration status.

The accounts of my participants expose the different ways in which policy factors, including legal aid policy and the complexity of immigration law, often combine to create significant barriers for individuals in trying to secure their immigration status. Although these can result in experiences perceived to be luck, there are a range of actors involved in producing unfair or inconsistent outcomes. Mohammed's case is another example of this, demonstrating how the complexity of the law and changes to legal aid can combine with the quality of Home Office decision-making to fail individuals. Mohammed is originally from Syria but has a European wife. He was able to access legal aid for his asylum claim but received incorrect advice: his adviser specialised in asylum (the most widely available category of immigration legal aid post-LASPO) so was unaware of the immigration rules relating to his wife's status. Mohammed heard from a friend that he might already have immigration status, but when he tried to tell his adviser, they told him to just wait for the Home Office decision. After waiting for months and receiving an initial refusal on his asylum claim, the decision was appealed. It was only at the point that his case was ready to be heard by the tribunal that a barrister (also funded by legal aid) became involved and advised Mohammed that he already had permission to reside in the United Kingdom based on his wife's nationality.

A particularly worrying aspect of Mohammed's case is that during interviews with the Home Office, the decision-makers working on behalf of the government did not realise that Mohammed already had a recognised category of immigration status and therefore did not need to make an asylum application. A news article by BBC News in 2018 published similar concerns about the quality of Home Office decision-making (BBC News, 2018). The news article reported that Home Office caseworkers in the asylum team were expected to make five decisions a week, despite this being an ambitious target because asylum cases are legally complex and require close scrutiny of evidence. The article explains that, regardless of the complexity of a case, caseworkers were expected to complete their review of the applicant's circumstances in a short timeframe. Failing to meet these targets could result in individual members of staff being dismissed from their employment. In the article by the BBC, a caseworker claims that Home Office staff would ‘often take decisions based on what the easiest result will be to get through the decision as quickly as possible’, meaning that sometimes the easiest decision would be to grant asylum and sometimes it would be to refuse it. ‘In that sense’ he suggests, ‘asylum seekers face a lottery’ (BBC News, 2018).

As previous academic work on refugees and luck acknowledges, refugee determinations can be a matter of life or death (Rehaag, 2012), which makes the claim that decisions are made quickly, and without thorough consideration of the evidence, certainly a disturbing one. But the risk of describing Home Office decision-making as a ‘lottery’ is that it indicates that there is a degree of chance in decision-making processes, or that decisions are made at random. If chance is viewed as the opposite of choice, describing decision-making as a lottery indicates an absence of responsibility. Thomas (2009) warns against ‘any temptation to castigate the asylum process as nothing but a random or arbitrary lottery’ (2009: 164), because although consistency is desirable, it can in any case be difficult to obtain given the complexities of decision-making in asylum cases. Rather than viewing outcomes as random, Thomas argues that from the perspective of decision makers there may in fact be ‘a patterned and rational process at work’ (2009: 164). This is supported by other independent research, for example, a recent report by the UNHCR (2023) describes the pressures faced by Home Office staff involved in the asylum screening process, and the risks this poses to the welfare of asylum seekers. As Mohammed's story indicates, there are certainly times where mistakes occur within government decision-making processes, but these occur within the broader context of policy choices, including the complexity of immigration rules, access to advice and other controllable factors.

Where chance is perceived to determine a particular outcome, it can influence the extent to which individuals are seen to be responsible for their own fortune or misfortune, but it can also diminish the responsibility that other actors are perceived to have. Inconsistent refugee outcomes are often perceived as luck on the basis that they occur beyond the control of individual asylum seekers, but there are structural factors that produce inconsistent decision-making that do not result from chance. Although moments of ‘good luck’ have been seen to determine who is able to access a legal adviser (Burridge and Gill, 2017), the conditions that produce the scarcity of advice do not wholly come down to chance, they are the result of policy decisions including the legislative provisions that govern legal aid. Rather than producing experiences of bad luck, these can be more appropriately viewed as a form of oppression resulting from choices that are ‘socially imposed’ (Anderson, 1999: 288). Given that experiences of legal processes can be influenced by avoidable and controllable policy decisions, such as legal aid policy, we need to be cautious about when and how we deploy the concept luck to explain experiences of asylum and immigration systems. Scholarship in law must take a more critical approach to understanding luck, with careful consideration of how and why luck is being mobilised as a concept, what the idea of luck can expose or conceal, and the potential for luck to shift responsibility or obscure accountability for legal decision-making.

Conclusion

Literature on refugee law and asylum determination has often used ideas of luck to highlight the injustices faced by individuals, but as I have demonstrated through this article, luck is not atheoretical. Legal scholarship must pay closer attention to what is meant by luck because the idea of luck can make us more attentive to the moral implications of structural inequalities, but it can also shift who is seen to be responsible for the outcomes of legal processes. Viewing luck from an individual perspective can tell us about how refugees perceive luck, but we need to be cautious in accepting these narratives, as taken in isolation they do not necessarily tell us about the inequalities that structure these experiences or how the effects of luck are distributed. Furthermore, given that perceptions of luck can alter how the circumstances of individuals are judged in moral terms, it is important to consider how conceptualising luck has the potential to strengthen or minimise political accountability.

In mobilising the concept of luck, legal scholarship must therefore be critical in its approach: what is meant by luck? Are metaphors of luck intended to emphasise random or chance events, or an absence of choice and control? What are the moral implications of deploying luck as the basis for addressing inequalities: should we aim to promote conditions of good luck, or address the effects of bad luck – and what implications does each of these have for understanding formal systems of justice? Who experiences events due to the real effects of luck, and where does luck operate as a proxy for privilege or advantage? What are the wider implications of describing refugees as lucky or unlucky? Using the example of access to immigration advice I have started to demonstrate why these questions need closer attention and how the concept of luck can be understood to operate in relation to structural inequalities and political accountability. Attributing refugee experiences to luck can strengthen the moral imperative to respond to the injustices that refugees face, but this can come at the cost of diminishing the agency of individual refugees as well as the responsibility and culpability of other actors who play a role in creating the situations from which perceived experiences of luck arise. There is, however, scope for further work that examines the implications of conceptualising luck in relation to asylum outcomes. To improve the fairness and consistency of who receives refugee status, access to good quality advice and legal representation is one potential way to control against the effects of luck alongside other policy decisions, but as scholars we need to be cautious about our analytical application of luck to avoid making some individuals appear responsible for their own good or bad luck. Refugees like Hassan should not have to feel the burden of responsibility for the experiences of other refugees.