Children at the borders
Type of text: Doktorsavhandling
Published by: Linköping University, TEMA Barn
Author: Jonathan Josefsson
Short description of text
The thesis is based on four articles and draws on childhood studies and political philosophy. It presents a critical investigation of children’s rights in relation to immigration control. ‘This thesis sets out to undertake an empirical examination of the controversies around children’s rights and immigration control by studying the meaning and uses of children’s rights in two particular settings: the Swedish Migration Court of Appeal, and Swedens largest morning paper Dagens Nyheter. These empirical studies will be a point of departure to engage theoretically in the rights of asylum seeking children in dialogue with contemporary political philosophy’ (p. 14-15). The thesis further discusses what is called the “childhood turn” in recent migration research: ‘a growing interest in children’s roles, experiences and perspectives in transnational migration’ (p. 47). Data collection 2000-2013.
Most important results
Summary of the articles made by the author:
– ‘Article 1: Children’s rights to asylum in the Swedish Migration Court of Appeal
Children’s rights to asylum have rendered political controversies in a number of countries in recent years. This article put focus on the translation of nearly universally recognised children’s rights principles into a domestic practice of immigration control and explores how legal norms regarding children’s rights to asylum have developed in the Swedish Migration Court of Appeal 2006-2013. Court decisions are analysed with focus on the meanings given to the best interests of the child, how this is given weight against state interests of immigration control, and how children’s interests are given normative force. It is only in a small minority of cases in which the Best Interests Principle (BIP) in fact does have a decisive normative force in granting residence permits and the meanings and use of children’s interests in court argument making evident that the BIP enables both the granting and denial of residence permits. The BIP is doing normative work in double directions.
– Article 2: ‘We beg you, let them stay!’: right claims of asylums eeking children as a socio-political practice
Children’s rights to asylum have emerged as an urgent political challenge. This article uses a number of cases discussed in Sweden’s largest morning paper to analyse claims of asylum-seeking children and how these claims challenge the normative limits of contemporary asylum, concerning what and who ought to be recognized by law. Even though the universality of the child constitutes a running theme, the arguments and the conception of children underpinning the claims are diverse. The article suggests that the claiming of rights as a socio-political practice could be a vital analytical approach to studying children’s rights and offers a much needed alternative to the dominant mainstreaming paradigm.
– Article 3: Children’s rights to asylum and the capability approach
The prospect of large populations of children migrating across national borders raises urgent political and ethical questions about children’s rights to asylum. In recent years, there has been an increase in scholarly interest in migrating children and children’s rights, but this interest has thus far been scant in political theory. The present article uses the Capability Approach to discuss children’s rights to asylum and to examine the prospects and limitations of the approach in this context. It underlines that, despite a global consensus on the rights of the child, the political and ethical challenges to children’s rights to asylum cannot be reduced to a question of the implementation of universal rights or capabilities of children – a matter of technicalities or mainstreaming of legislation. Instead, the question of children’s rights to asylum is a highly political and ethical matter, characterised by ambivalent conceptualisations of children and conflicting interests that continue to pose a considerable challenge to the organisation of the international political and legal system. The Capability approach has the potential to fill a theoretical gap with regard to children’s interests and the setting of threshold levels, although it continues to wrestle with questions of how to confront the asylum-seeking child as a political subject within well-functioning democracies and how to determine a specific list of capabilities and corresponding duties in deliberation between the right to self-determination of nation states and universal entitlements of children.
– Article 4: Right claims of asylum-seeking children: a discourse ethical approach (to be submitted).
In the wake of western state denials of residence permits to asylum-seeking children after longer periods of residency – local communities, anti-deportation campaigns and children themselves have rejecting the justifications provided by state authorities and mobilised claims for asylum-seeking children’s rights to stay. Thus far, scholars have primarily analysed the normative aspects of the issue along a legalistic or top-down model where children’s rights as stated in international law such as the UN Convention on the Rights of the Child have been used as the normative standard upon which the justification and practice of immigration control by western states have been evaluated. Though a legalistic approach can address questions of justification internally to the legal system itself it have difficulties to analytically address the plurality of claims and questions of justification that arise in the public sphere as critique to the current boundaries of law and citizenship. In contrast, this article take a point of departure in discourse ethics and the sociopolitical practice of rights and argues that Seyla Benhabib’s concepts reciprocity and democratic iterations can offer a normative foundation and productive theoretical framework to analyse claims and justifications of asylumseeking children’s rights to residence permits in the public sphere’ (p. 69-71).
– ‘As is clear from article one, when analysing the decision making of the MCA it soon becomes evident that explicit and developed reasoning about children and their rights in cases of residence permits takes place in relatively few cases. When the court does consider the specific rights of children, it is almost exclusively in relation to the BIP. A closer analysis of the court’s reasoning shows how the BIP commonly functions as a general principle of restriction to ensure that a denial of a residence permit is not in conflict with what is legally regarded as the best 74 interests of the child – often without any explicit justification’ (p. 73). ‘It is only in a small minority of the cases that the best interests of the child are in fact given a decisive normative force in the granting of residence permits. It is notable that the rejection of children and their parents does not necessarily result from a failure to take into account children’s rights or interests. On the contrary, a series of cases demonstrates that rejections are based on, and carried out in accordance with, children’s interests as they are legally interpreted by the court. The open character of the BIP thus enables the court to weaken, strengthen or shift the content and function of a specific norm of children’s interests in order to strengthen an argument. In other words, the court’s use of children’s interests allows for both the granting and the denial of residence permits and can also give legitimacy to decisions that stand in contrast to what the child perceive to be in its own interest’ (p. 74).
– ‘While the rights of asylum seeking children in the MCA largely is connected to the vulnerability or the ‘passivation’ of children and their dependency of other actors to protect their rights … the rights of asylum seeking children described in Dagens Nyheter share some of these characteristics, but challenge also this picture and demonstrate children with political agency, as active subjects of rights with more ‘adult-like’ abilities to drive the political enforcement of rights him- or herself’ (p. 75).
– ‘In chapter two, I presented the socio-political practice of rights as way of studying the rights claims of asylum-seeking children. Such a perspective may, I suggest, have wider consequences for the study of children’s rights. When it comes to the normative issues, to approach children’s rights within a framework of the UNCRC can arguably be one important approach to the analysis of the rights of children. But what I show in article two and four is how children’s rights as a socio-political practice and discourse ethics can offer important complements to children’s rights as defined by international or domestic law, regarding both how and where to study children’s rights. Not only the meaning and uses of rights as enshrined in positive law, but also as given meaning through claim making and political mobilisation’ (p. 77).
Martha Nussbaum’s capability approach and Seyla Benhabib’s formulation of discourse ethics.
The general methodological approach is to combine empirical and qualitative research with theoretical and conceptual analysis. Textual analysis of 39 court decisions made by the Swedish Migration Court of Appeal, from 2006 to 2013, which all make reference to the best interest of the child, and Dagens Nyheter, during 2000-2013, as well as a theoretical investigation in which ‘the rights of asylum-seeking children are analysed in dialogue with contemporary political-philosophical literature about membership, rights and borders’, more specifically, in relation to Nussbaum and Benhabib (p. 59).
Suggestions for further research
‘Further empirical studies on the meaning and uses of children’s rights as well as the theoretical and normative foundations of children’s rights’ (p. 74).