Asylum Policy Research Articles

The politics of discretion: Authority and influence in asylum dispersal

This paper considers how discretion, understood as both a capacity to make decisions and a form of influence that is often hidden, operates within the accommodation and support of asylum seekers. Combining critical discussions of discretion with accounts of a ‘local turn’ in migration policy, I argue that discretion plays a key role in shaping how policy is implemented and offers insight into the changing governance of asylum at national and local levels. Drawing on empirical material examining the development of the UK's asylum dispersal system, the paper extends accounts of discretion beyond ‘street-level’ to argue for a focus on how discretion reflects different claims to institutional authority. Addressing four accounts of discretion in dispersal, I argue that tracing discretion can offer insights into how ‘implementation gaps’ in asylum policy are negotiated and how tensions between national and local governments are contained. Tracing discretion in this way may advance critical interrogations of power relations in welfare bureaucracies and develop understandings of institutional agency and influence within liberal democracies.

Consolidating the European asylum regime’s coercive trajectory until the pandemic

How have European asylum policies developed during the COVID-19 pandemic, from the perspective of the long-term political trajectory of the European asylum regime? When the pandemic broke out, EU member states had for three decades been trying to resolve the shortcomings of the 1990 Dublin Convention. The weaknesses in the regime persisted both due to the overloading of frontline member states and the efforts to control secondary flows of asylum seekers within the EU. The pandemic has provided neither a hiatus nor a turning point in this regard but has produced a fluid situation that precipitated the United Kingdom’s withdrawal and the consolidation of the long-term trend of coercion of asylum seekers, between member states and at their external borders.

Limits at the Limes. Diffracted Sovereignty inside the Border Zones

Abstract This paper questions state sovereignty at borders, by referencing the contradictions that a border control approach based upon security concerns creates, and the distortions between societies of norms and situations of exception that the European migration and asylum policies generate. Meanwhile, whilst sovereignty should correspond in a legal theory perspective to authority, its expressions manifested in the European borders consists essentially in domination as bare violence is deployed. By investigating the hiatus between how sovereignty ought to be in theory and how it is observed in practice, it is possible to consider that the very sovereignty is diffracted in the thickness of the frontiers (i). This paper explores the methods states develop directly or indirectly in the borders, inside the border zones, basing the analysis on the notion of heterotopia Michel Foucault forged. Such a conceptual tool is deployed in order to underscore how states construct and exploit frontiers as useful margins and establish them as dissolution zones. Three methods – extraction, classification and obliteration – are highlighted that correspond to the main purposes of border surveillance – control, selection and removal – (ii).

“In the First Place, We Don’t Like to Be Called ‘Refugees’”: Dilemmas of Representation and Transversal Politics in the Participatory Art Project 100% FOREIGN?

100% FOREIGN? (100% FREMMED?) is an art project consisting of 250 life stories of individuals who were granted asylum in Denmark between 1956 and 2019. Thus, it can be said to form a collective portrait that inserts citizens of refugee backgrounds into the narrative of the nation, thereby expanding the idea of national identity and culture. 100% FOREIGN? allows us to think of participatory art as a privileged site for the exploration of intersubjective relations and the question of how to “represent” citizens with refugee experience as well as the history and practice of asylum. The conflicting aims and perceptions involved in such representations are many, as suggested by the opening sentence of Hannah Arendt’s 1943 essay “We, Refugees”: “In the first place, we don’t like to be called ‘refugees’”. Using 100% FOREIGN? as an analytical reference point, this article discusses some of the ethical and political implications of representing former refugees. It briefly considers recent Danish immigration and asylum policies to situate the project in its regional European context and argues that, similarly to its neighbouring countries, Denmark can be described as a “postmigrant society” (Foroutan). To frame 100% FOREIGN? theoretically, this article draws on Arendt’s essay, Trinh T. Minh-ha’s concept of speaking nearby, as well as the feminist concept of transversal politics (Meskimmon, Yuval-Davis). It is hoped that this approach will lead to a deeper understanding of what participatory art can bring to the ethical politics of representing refugee experience.

Asylum policies and resettlement. Insights and lessons from Canada's experience

The resettlement of refugees is an important contemporary issue and several coun-tries responded to the global resettlement needs by implementing national pro-grams. This article aims to analyze current developments about refugee protection by focusing on Canada's experience in resettling and integrating refugees through the support of private sponsors. It elaborates on the outcomes and challenges of Canada's private sponsorship program implemented since the late 1970s and ex-plores its transferability in Europe. The authors affirm that, despite the program's vulnerabilities, it can be a model for European countries dealing with the resettle-ment of refugees.

Why do states admit refugees? A comparative analysis of resettlement policies in OECD countries

ABSTRACT Many refugee-receiving countries have restricted their asylum policies and stepped up their border control policies to prevent asylum seekers from reaching their territories. At the same time, the resettlement of refugees has gained popularity. Many states have introduced resettlement schemes or have increased the number of refugees they resettle. Why do states voluntarily admit refugees by expanding resettlement? This article develops a comprehensive theoretical account of countries’ resettlement choices and identifies the determinants of their openness to refugee resettlement through an empirical analysis of 33 OECD countries between 1980 and 2019. We find that the supply-side factor of wealth best predicts whether a country engages in refugee resettlement. The number of effective resettlement admissions tends to fluctuate with the demand-side factor of humanitarian need. Nevertheless, the expansion of resettlement policies has not resulted in a subsequent expansion of humanitarian protection. Instead, states combine resettlement policies with restrictive border control policies which allows them to preserve their humanitarian credentials while curtailing refugees’ overall access to asylum. These findings provide important insights into the policy-making of refugee resettlement and the strategic considerations in the asylum governance of liberal democracies.

The Politics of Compassion: Immigration and Asylum Policy by Ala Sirriyeh (2018)

Ala Sirriyeh (2018)<br />The Politics of Compassion: Immigration and Asylum Policy (Global Migration and Social Change series)<br />Bristol University Press<br />ISBN 978-1-529-20042-3<br />£75 (hardcover)<br />224 pp

Asylum burden-sharing within the EU revisited: are we moving on the right track?

ABSTRACT The refugee crisis evidenced a myriad of flaws in the EU common asylum policy, especially the lack of fairness in asylum burden-sharing. This paper reveals that, despite some progress in terms of inequality, a bi-polarised distribution gained ground. Moreover, two novel convergence approaches in this field reveal that the message of previous articles on disparity reduction is incomplete; there was no pure convergence, as it was achieved due to frontrunners, with no role for laggards. Consequently, urgent political action and greater leadership by European institutions are required to pave the way for distributive justice between states in asylum burdens.

The European Composite Administration Facing the Challenges of Migration

In classical theoretical reflections on international reality, one of the leading paradigms is the belief that the Westphalian order based on sovereign states has evolved into a diverse network of interdependent actors. From a legal perspective, a network such as this has the character of multi-level normative linkages. Legislation with varying degrees of impact in terms of its binding force is enacted within a number of parallel consultative bodies. Within the EU this network takes on a concretised, institutional normative dimension, the so-called European Composite Administration which is evident in specific areas such as cyber security, asylum and migration policies, energy, and financial market regulation. In the European Union, decentralised agencies play a leading role in a such compound bureaucracy. They are one of the main instruments in the European system for harmonising regulation and practices in specific areas of EU activity. In a crisis situation there is an increasing tendency to modify their powers. Within the European Composite Administration, bodies such as EASO, the agency responsible for migration and asylum policies, play a key coordinating role between the Member States. The crisis legitimises institutional changes, by expanding the catalogue of regulatory agencies’ competencies. While practitioners, especially in individual offices in the Member States, may find such processes acceptable in relation to the ideal of effi cient and effective administration, these phenomena may be regarded as worrying from the point of view of control over a growing complex integrated administrative apparatus.

The Plasticity of Our Fears: Affective Politics in the European Migration Crisis

In the field of migration politics, a dominant rhetoric argues that liberal immigration and asylum policies must be avoided because they will inevitably lead to anti-immigration backlashes that exacerbate the very conditions they were supposed to remedy. Drawing on the work of German sociologist Heinrich Popitz and empirical data on the aftereffects of the European migration crisis, the article criticizes this “rhetoric of reaction” (Albert Hirschman) for ignoring the many variables shaping the consequences of more open borders. Backlashes to immigration are real and pose a constraint for liberal immigration policies, but these backlashes are not necessarily politically successful. Societies react neither uniformly nor automatically to rising immigration. A critical variable is the fear engendered by the (real, expected, or imagined) arrival of large numbers of migrants, and this fear can be either ramped up to paranoid levels or calmed by a politics of hope aimed at restoring what Popitz called the “human openness to the world.”

Doctrine of methods of interpretation of legal norms formed in the case law of the Court of Justice

The doctrinal approaches to the definition of methods and principles of interpretation of legal norms applied by the Court of Justice of the EU are analyzed. The traditional and special methods of interpretation inherent in integration justice are singled out. The dynamics of changes in the approaches to the interpretation of legal norms in the decisions of the Court of Justice of the EU after the signing of the Lisbon Treaty is described. Scientific approaches to defining the concept of interpretation of legal norms contained in domestic sources are analyzed. Foreign sources on the methods of interpretation of the law by the Court of Justice of the EU have been studied. The article analyzes several European publications written at different times before the signing of the Lisbon Treaty and established, which primarily draws attention to authors who have subjected the theological method of interpretation, and very few sources that influence the justification of methods or principles of their application by the Court. It can be concluded that the tendency of European scholars to emphasize the importance of the theological method of interpretation was related to their views on the constitutional nature of the Treaties and legal considerations about the need to adopt the EU Constitution. Such conclusions correlate with the limited jurisdiction of the Court of Justice, as before the signing of the Lisbon Treaty not all provisions of secondary legislation were interpretable (in particular, visas, asylum, immigration and other policies related to the movement of persons). on the constitutionality of the Treaties, although their form and content have become even more similar to constitutional acts, without losing a clear functional statement of provisions. Since then, the case law of the Court of Justice has been characterized by a variety of methods of interpretation, and European doctrine by publications that have re-substantiated the system of methods and paid more attention to their detailed analysis, making each of these methods autonomous and collectively interchangeable.

Right-wing populist affective governing: a frame analysis of Austrian parliamentary debates on migration

ABSTRACT In the aftermath of the ‘summer of migration’ of 2015, right-wing populist discourses became increasingly commonplace. This article by Thiele, Sauer and Penz investigates the resurgence of nativist and anti-migration attitudes in Austria by focusing on parliamentary debates between 2015 and 2019 concerned with migration, asylum policies and integration measures. Their theoretical approach builds first on Cas Mudde’s conception of right-wing populism—which proceeds from the premise of corrupt ‘elites’ and threatening Others—and then combines it with theories on the politics of emotion and affects. By employing a critical affective frame analysis, the study examines how right-wing populist arguments by political actors are always intertwined with affects, like anger, fear and hope, in order to mobilize followers and voters. They regard these connections as governing strategy aiming at right-wing exclusion, a mode of governing through affects, which tends to change the affective atmosphere in Austria, that is, what is conceivable, speakable and feelable with regard to migration and refugees. As it turns out, not only the notorious Freedom Party (FPÖ) (with a longstanding far-right tradition) but also the refurbished People’s Party (ÖVP) under their new leader Sebastian Kurz, draw on discourses that are exclusionary as well as affective, encouraging the Austrian population rather to fear migrants and to feel anger, in order to mobilize them against threatening ‘migration waves’ and ‘illegal immigration’.

‘Tuscans are different’: the cognitive dimension of local asylum policymaking during the 2015 European ‘refugee crisis’

ABSTRACT This article sheds light on the so-far-neglected role of decision-makers’ subjective interpretations and cognitive factors in local asylum policymaking, complementing and challenging the existing literature explaining local policy responses to the 2015 European ‘refugee crisis’. How and why do local decision-makers interpret the environment in which they operate? Do subjective interpretations contribute to influence local asylum policymaking, and how? To analyse these questions, the paper adopts an actor-centred approach grounded on framing and sensemaking theories and on Bevir and Rhodes’ concept of ‘situated agency’, and it develops a methodology based on anonymous interviews and social network analysis. Such an approach is applied to the heuristic case of Tuscany, an Italian region where the local asylum policies produced during the ‘crisis’ cannot be convincingly explained by looking merely at structural, institutional or strategic factors. Three arguments are developed here. First, at least in situations of ‘crisis’, local decision-makers are not mere passive recipients of information, but active interpreters and rationalizers, whose subjective interpretations result from framing processes and several judgement heuristics. Second, these interpretations can decisively influence local migration policymaking. Third, these interpretations can be also shaped by policy outputs, meaning that local asylum policymaking processes can have important constitutive effects.

Migration and asylum law of the V4 in the European Union context: between harmonisation and reluctance

Abstract Ever since the 2015 migration and asylum crisis, the legal regulation of this field in the European Union has been debated strongly in almost all its aspects. The member countries of the Visegrád Group (V4) have voiced dissent regarding a number of EU measures in this field, leading to political and legal confrontation. After a brief review of the public law context of EU migration and asylum policy and the general attitude of the V4 towards these regulatory fields, this paper elaborates how the EU and the V4 reacted – in legal terms – to the 2015 migration and asylum crisis and to each other’s measures, focusing on three key V4 policy goals. The paper also analyses the reception of the 2020 proposal on the New Pact on Migration and Asylum and discusses whether it can be seen as the way forward in terms of a more consensual policy approach. The paper finds that although the approach of the V4 has had a perceivable effect on that of the EU, elements of disagreement remain; it further argues that the harmonious elements of the approaches of the EU and the V4 could potentially be built upon to reach a compromise, but maintains that policy-based reluctance cannot have an effect on obligations laid down by EU law.

(The Struggle for) Refugee integration into the labour market: evidence from Europe

Abstract We study the labour market performance of refugees vis-à-vis comparable migrants across 20 European countries and over time. In the first part of our analysis, we document that labour market outcomes for refugees are consistently worse than those for other migrants. Refugees are 11.6% less likely to have a job and 22% more likely to be unemployed than other migrants with similar characteristics. Their income, occupational quality and labour market participation are also relatively weaker. These gaps are larger relative to economic than non-economic migrants, and persist until about 10–15 years after immigration. In the second part of our analysis, we investigate the role of economic conditions and migration and asylum policy regimes at the time of arrival in shaping integration paths of refugees. First, we find that immigrating in a recession produces scarring effects for all migrants but no differential effect for forced migrants, leaving little role for this channel to explain observed refugee gaps. Secondly, we focus on the impact on refugees of being subject to spatial dispersal policies. Our estimates imply that dispersed refugees experience a persistent impact on their residential choices and substantial long run losses in their economic integration with respect to non-dispersed refugees.

The asylum\u2013child welfare paradox: unaccompanied minors in Austria

Existing research shows that right-wing populist imaginaries and discourses on “bogus asylum seekers” mobilise feelings of fear and panic and serve to legitimise increasingly restrictive asylum policies in Europe. In light of this ongoing development, this paper addresses a more intrinsic and structural aspect of asylum, which requires balancing the inclusion and exclusion of persecuted third-country nationals. This paradox is most evident with unaccompanied minors who are caught between state norms and practices that are both exclusionary and repressive (asylum) and inclusive and caring (child welfare). In order to tackle this dilemma, we explore how the asylum–child welfare paradox is organised and formalised by the state and how it affects unaccompanied minors. Based on interviews with unaccompanied minors in Austria and experts who work with them, the findings show that child and youth welfare norms and practices that are formalised as part of the asylum procedure improve unaccompanied minors’ living conditions without dismantling asylum norms and practices of surveillance, conditionality, and scarcity. Judging by their simultaneous implementation, the state preserves and reinforces exclusionary and repressive asylum norms not despite but through child welfare norms and practices.

A Liberal Region in a World of Closed Borders? The Liberalization of Asylum Policies in Latin America, 1990–2020

Recent scholarship has claimed that countries across Latin America have been adopting an increasingly liberal and more advanced legal framework for the protection of refugees. Yet little systematic cross-country evidence beyond case studies exists to back up this claim. To address this gap in the literature, I develop a new methodology — called the Asylum Policies in Latin America (APLA) Database — to measure policy outputs on asylum across Latin America over time. Applying this new methodology, I present the results of the codification of 19 Latin American countries, over a 31-year period (1990–2020), using 65 indicators to track the development of policy measures on asylum. The findings from this new database confirm the claim from existing research that countries across Latin America have developed an increasingly complex and more liberal legal framework for the protection of refugees. This liberal trend in asylum legislation stands in contrast to findings of increased restrictiveness over the same period across OECD countries. The APLA Database represents a unique contribution to the fields of migration and refugee studies, as it provides systematic data on the nature and development of asylum policies in Latin America through highly disaggregated data on policy outputs. Additionally, APLA demonstrates the existence of intra-regional variation. It also allows scholars to develop and test hypotheses in the field of asylum studies and provides a reference database for comparative analyses of asylum policies in Latin America, as well as a framework for the comparative study of asylum policies across the globe.

Impacts of political and social contexts on refugees’ experiences: A comparison between Southeast Asian refugees arriving in France in the 70’s and recent refugee migration

ABSTRACT The influx of refugees into France since 2015 has been framed as a crisis and marked by a restrictive turn in arrival and asylum policies. By comparison, in the 1970s Southeast Asian refugees fleeing from communist regimes were welcomed warmly in the country. This article compares two in-depth case studies of refugees, analysed using the biographical policy evaluation method, to retrace how the policies and collective representations of these two different historical moments affect the experiences of refugees over time. It shows that policies play a significant role in shaping refugees’ experiences in respect of their access to papers, housing, language courses and work, thus impacting, but not determining, their possibilities of reconstructing life in exile. The comparison also raises the question of how personal experiences of arrival, viewed as a rejection or a welcome, influence refugees’ life courses.

Disproportionate Surveillance: Technology-Assisted and Automated Decisions in Asylum Applications in the EU?

Abstract Since the terrorist attacks of 11 September 2001 in the United States, the association between migration and security has been continuously strengthened, with multiple States working to tighten their border controls. In the European Union (EU), this trend has been shown by the frequent overlap between asylum application and migration policies and the agenda concerning border control, security, and terrorism. This securitization of migration discourse is claimed to justify the use of controversial practices to examine asylum applications. Against this background, the article reflects on the use of technology-assisted and automated decisions in this area. In particular, it questions whether the existing safeguards provided in the EU data protection framework ensure asylum seekers’ rights to privacy and the protection of personal data. In doing so, the article seeks to offer a more nuanced understanding of European asylum policy and the potential flaws therein that allow individuals’ fundamental rights – enshrined in the EU Charter and the European Convention on Human Rights – to be infringed. In conclusion, the article engages with the debate relating to the use of automated decisions, in particular those based on artificial intelligence, and whether they should be excluded from certain policy areas, such as migration.

Wilful Non‐Compliance and the Threat of Disintegration in the EU’s Legal Order

AbstractThis article focuses on the problem of wilful non‐compliance with EU law and the threat it poses of (partial) disorderly disintegration within the EU’s legal order. Taking the example of migration and asylum policy following on from the 2015 migration crisis, I positdifferentiated integration (DI), which occurs through processes that are formally mediated and collective, andnon‐compliance, which is unmediated and unilateral, as alternative strategies for member states which are unwilling to accept further integrative steps. While DI does carry costs, including the risk of legal fragmentation, I argue that it is a valuable tool for pre‐empting wilful non‐compliance – a phenomenon which both exposes and compounds the normative limits of EU law and is, consequently, more corrosive of the EU’s legal order. Thus, the article suggests that the EU ought to be more open to DI, especially when legislating in policy areas that are highly politicised.