The asylum–child 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.

Part 2 Asylum, 8 The Concept of Asylum

This chapter focuses on the concept of asylum. The meaning of the word ‘asylum’ tends to be assumed by those who use it, but its content is rarely explained. The Universal Declaration of Human Rights refers to ‘asylum from persecution’, the UN General Assembly urges the grant of asylum and observance of the principle of asylum, and many States’ constitutions and laws offer the promise of asylum, yet nowhere is this act of States defined. A distinction may be made between the clear, discretionary, sovereign right of States to grant asylum without it being considered a hostile act, which other States are bound to respect; and the individual right to asylum, which thus far has only been explicitly recognized in some regional human rights instruments and national constitutions, but not in any treaty applying universally. While individuals may not be able to claim a right to be granted asylum, States have a duty under international law not to obstruct the individual’s right to seek asylum. This includes the obligation to provide access to an asylum procedure (refugee status determination), which necessarily calls into question the legality of non-arrival and non-admission policies increasingly employed by States as tools of migration control.

Part IV Access to Protection and International Responsibility-Sharing, Ch.33 Credibility, Reliability, and Evidential Assessment

This chapter explores credibility, reliability, and evidential assessment in the asylum procedure. Credibility assessment in asylum appears to be constrained by a conceptual framework, as are other fields of law. Refugee law offers a particular constellation of the burden of proof, the standard of proof, and the benefit of the doubt. However, there are serious logical deficiencies in the way that these three concepts interact in asylum, with the result that they are unable to restrain discretion and regulate decision-making. If one looks beyond these legal concepts and rules in search of restraint in proxies for credibility, scientific studies in psychology and traumatology suggest that standard credibility criteria, such as behaviour or the coherence and plausibility of statements, are also deficient. These studies in effect undermine the validity of the standard criteria used in the UNHCR Handbook and the EU Qualification Directive. Without functioning legal constraints and valid credibility criteria, the discretion of decision-makers occupies too much space. Empirical studies confirm that the allocation of a case to an individual judge is the weightiest factor in dictating the outcome of an asylum case, leading to the conclusion that evidential assessment actually plays a minor role, suggesting that evidential assessment in asylum law is deeply dysfunctional.

Part IV Access to Protection and International Responsibility-Sharing, Ch.32 Asylum Procedure

This chapter addresses the standards on asylum procedures that apply within various regulatory contexts. Its normative focus includes not only the standards for determination of refugee status under the Refugee Convention and Protocol, but also those concerning the examination of applications for complementary or subsidiary forms of protection. Nonetheless, the legal interaction between asylum procedures and Convention refugee status will be the starting point. As the Refugee Convention is scant on procedural standards, the chapter discusses the soft law standards that partly fill the normative gap. It also examines procedural standards concerning subsidiary or complementary protection that have been developed on the basis of human rights norms prohibiting refoulement beyond the scope of the Refugee Convention. Human rights treaties generally include the right to effective remedies at national level and are therefore relevant for the administrative or/and judicial procedures that apply when States parties to such treaties examine asylum applications. Although directly linked to the protection against refoulement under human rights treaties, the requirement of effective remedies has indirect effect also for procedures concerning the determination of Convention refugee status.

What are they waiting for? The use of acceleration and deceleration in asylum procedures by the Dutch Government

In the period 2014–2019, the Dutch authorities governed the duration of asylum procedures in order to control the influx of asylum seekers. They prioritised and accelerated cases with poor chances of success, while they deprioritised cases with good chances of success. This resulted in long asylum procedures for asylum seekers with a likelihood of success and short asylum procedures for those with a poor chance of success. This article contends that this Dutch policy is an illustration of ‘temporal governance’: a governmental strategy to control and discipline migrants by means of time. This form of governance is based on a detailed knowledge of processes of asylum procedures, which enables qualification, categorisation and differentiation between different groups of asylum seekers. The focus of this research is on how such temporal governance functions and how it relates to law. A traditional understanding of law and sovereign power entails that law legitimates and restricts power. Strikingly, temporal governance regulating the asylum procedure seems to have a different relationship to law. This article demonstrates that legal standards, in this case the standards of European Union legislation, provide Member States a large amount of room (temporal discretion) to apply temporal governance. Moreover, only a few limited legal remedies remain available, if the duration of the asylum procedure appears unlawful. Instead of limiting temporal governance, law provides ample opportunity for the acceleration and deceleration of asylum cases in order to delay due process of asylum seekers and deter others from arriving. We cannot prove that the Dutch government aimed at deprioritising and decelerating complex asylum cases and cases with good chances of success – which would have been unlawful. However, this was the net result of their chosen policy. We illustrate that instead of a legitimation and restriction of sovereign power to govern the asylum influx by means of time, law can function as a set of tactics to pursue policy aims by employing ‘temporal governance’.

Managing narratives, managing identities: Language and credibility in legal consultations with asylum seekers

This study examines interactional management practices and narrative co-construction in lawyer-asylum seeker consultations in Flanders, Belgium. Drawing upon linguistic-ethnographic fieldwork, it presents a case study of a consultation between an Afghan applicant for international protection, his adviser, and his lawyer. The purpose of the consultation is to prepare the applicant for testifying at the upcoming asylum hearing. Data analysis focuses on (i) the reorientation of the asylum narrative from an authentic-experiential towards a more objectified formal-institutional account; (ii) the participants’ positioning work that indexes this reorientation process; and (iii) their fluctuating alignment of local-interactional and translocal-gatekeeping perspectives. In the discussion, we analyse the consultation in terms of competing legal and experiential voices and views on participant roles/responsibilities. We reflect on how this ambiguity of roles and ideologies relates to the constructed character of credibility, which reveals the importance of adequate legal assistance in this linguistically challenging context. (Legal consultations, asylum procedure, linguistic ethnography, narrative performance, credibility assessment)*

Working with PTSD in the Asylum Procedure

Europe is living through a refugee crisis of historic proportions, with subsequent evolving responses having now become one of the continent’s defining challenges of the early twenty-first century (Médécins Sans Frontières, 2016; UNHCR, .The sea route to Europe: The Mediterranean passage in the age of refugees, United Nations High Commissioner for Refugees, Geneva, 2015).

Eine ethische Beurteilung der Einschränkung der Freizügigkeit im Rahmen des Asylverfahrens in Deutschland auf Basis der Gerechtigkeitsansprüche von John Rawls

The restriction of freedom of movement within the German asylum procedure is legally controversial. My essay applies John Rawls’ Theory of Justice to this problem. This is appropriate because Rawls makes the principle of equal basic freedoms the central aspect of a just order and thus addresses the core aspect of the selective restriction of freedom of movement. However, this is also a challenge to show to what extent a theory Rawls wrote for a closed society can be applied to current issues that arise when these boundaries between inside and outside dissolve through migration.

Gruppenverfolgung im Asyl- und Flüchtlingsrecht

In this work, the case law of the factual and higher courts on group prosecution is analyzed. The thesis examines the uniformity or lack thereof in case law on group persecution, the reasons behind this, and its effects on the quality of this species of case law. The author comes to the result that the expansion of authority of the Federal Administrative Court is not a remedy for closing possible deficits. It would be disproportionate and, therefore, impertinent to resort to such a drastic measure without first addressing the real roots of the problem. In light of this, alternative solutions are proposed. The author is an asylum procedure advisor and a full-time employee of the German Red Cross.