Turning the 'asylum lottery' on its head: A critical reflection on ethnographies of refugee status determination processes
13th-14th December 2018
University of Siegen, Germany
Much literature on the governance of migration and asylum has focused on disparities in decision-making, be this between asylum institutions of different countries (in terms of varying recognition rates for asylum seekers from particular countries, for example), between different asylum institutions within a country or between different units or individuals working within the same institution (Neumayer 2005; Ramji-Nogales et al. 2009; Rehaag 2012). Such disparities are also often used by NGOs, legal advisors, activists etc. to criticise practices of asylum decision-making and migration control. Asylum procedures and decision-making are called arbitrary; an asylum lottery (see Anker 1991; Crawley und Lester 2004: 124; Ramji-Nogales et al. 2009). This workshop starts by turning this assumption on its head. Rather than assembling further empirical evidence for existing disparities, it encourages scholars to critically reflect upon what discourses one might be contributing to with this kind of critical analysis – but also through its opposite: a focus on consistencies, or rather, regularities (for recent comparative studies attempting to do both, see, for instance, Eule et al. forthcoming; Gill und Good in press).
In particular, we are interested in a critical re-reading of the discretion literature and its application in research on refugee status determination (RSD) practices. Arguably, both political and administrative actors and non-state actors are continuously engaged in renegotiations of the boundaries between law and politics, between policies and their execution, or between humanitarianism and politics. In fact, these realms can merge in what Fassin terms “discretionary humanitarianism” (Fassin 2011). Discretion can thus occupy a janus-faced position in political struggles around the justification of asylum decision-making practices (Magalhães 2018) where the rule of law is sometimes considered a blessing or a cure (constraining what is perceived as excessive discretion), sometimes a curse (allowing for blind rule following and, in this sense, a lack of responsible discretionary judgment). In this workshop, we therefore encourage scholars to think critically about the usefulness, but also the pitfalls of the concept of “discretion”. What can we gain from applying it to our analyses? And what – through its application – might be lost from our sight? Are there ways to move “beyond discretion and outcomes” (Sandfort 2000) in asylum administration research?
The workshop brings together scholars coming from diverse backgrounds and disciplines but with a shared interest in exploring politico-administrative action on the micro level of daily practices. This includes state actors as well as non-state actors (e.g. lawyers, legal counsel, refugee support, doctors, social movements etc.) interacting with state bureaucratic institutions. Contributions will address the following sets of questions:
- What emic theories about the use and misuse of discretion do the actors invoke? In what ways are departures from ‘standard operating procedures’ implicated in and accounted for in the daily practices of the actors involved?
- How are regularities as well as differences produced, maintained and combatted within institutions and in the relations between different institutions and actors? By whom and at what levels are questions of consistency and/or discrepancy problematized: between individual caseworkers, between different (sub-)units within an administration, between administrations in the same country, between administrations of different countries?
- How do different conceptions of discretion affect the perceived legitimacy of refugee status determination processes? What do our ethnographies tell us about the shaping of the category of the refugee and the governance of asylum today? What are the implications for conceptions of what is ‘just’ and ‘fair’ in the asylum system?
- And, last but not least, to what kinds of discourses do we contribute with our research? What categories of thinking do we – perhaps unwittingly – replicate with our analyses?
Anker, Deborah (1991): Determining Asylum Claims in the United States. An Empirical Case Study. http://repository.forcedmigration.org/show_metadata.jsp?pid=fmo:709, last accessed 28.12.16.
Crawley, Heaven; Lester, Trine (2004): Comparative analysis of gender-related persecution in national asylum legislation and practice in Europe. UNHCR, Evaluation and Policy Analysis Unit. Geneva: UNHCR.
Fassin, Didier (2011): Policing Borders, Producing Boundaries. The Governmentality of Immigration in Dark Times. In: Annu. Rev. Anthropol. 40 (1): 213–226. DOI: 10.1146/annurev-anthro-081309-145847.
Gill, Nick; Good, Anthony (Ed.'s) (in press): Asylum Determination in Europe: Ethnographic Perspectives: Palgrave Macmillan.
Magalhães, Bruno (2018): Obviously without foundation. Discretion and the identification of clearly abusive asylum applicants. In: Security Dialogue 2 (2), DOI: 10.1177/0967010618783640.
Neumayer, Eric (2005): Bogus Refugees? The Determinants of Asylum Migration to Western Europe. In: International Studies Quarterly 49(3): 389-410.
Ramji-Nogales, Jaya; Schoenholtz, Andrew Ian; Schrag, Philip G. (Ed.'s) (2009): Refugee roulette. Disparities in asylum adjudication and proposals for reform. New York: New York University Press.
Reehag, Sean (2012): Judicial Review of Refugee Determinations: The Luck of the Draw? In: Queen’s Law Journal 38(1): 1-58.
Sandfort, Jodi R. (2000): Moving Beyond Discretion and Outcomes: Examining Public Management from the Front Lines of the Welfare System. In: Journal of Public Administration Research and Theory 10 (4): 729–756.