Exploring the “Liberal Paradox” from the Inside: Evidence from the Swedish Migration Courts

År: 2018

Typ av text: Vetenskaplig artikel

Publicerad av:  International Migration Review 2018, Vol. 52(4)

Språk: Engelska

Författare: Livia Johannesson

Antal sidor: 23

Tillgänglig på: https://journals.sagepub.com/doi/pdf/10.1177/0197918318767928

Vad texten handlar om 

Artikeln handlar om konstruktionen av opartiskhet som norm hos aktörer som arbetar med överklaganden av asylansökningar inom Migrationsdomstolen – rådmän/domare, processförare från Migrationsverket och offentliga biträden. Det är i huvudsak en intervjustudie, men även observationer i rättsalen och genomgång av dokument har använts som datakällor. Tiden för studien var 2013-2014 och 30 personer intervjuades totalt.

Viktigaste resultat

“Its findings contradict the liberal paradox assumption that courts act according to inner logics that benefit immigrants’ rights. At Sweden’s migration courts, judicial workers show impartiality by using a skeptical approach to asylum applicants and do so to distance themselves from the political discourse of generosity that has dominated Swedish political debate for decades.” (1162)

“In interviews, for example, judicial workers repeatedly referred to a political discourse of generosity. Litigators explicitly mentioned it as the dominant political agenda on refugees from which they, in the name of impartiality, distanced themselves by employing a skeptical approach to asylum applicants. Judges also made implicit references to this discourse of generosity by recognizing affirmative approaches among lay judges [nämndemän] as emotional and politically influenced, while describing their own skeptical approaches as objective and professional.” (1179)

“Sweden’s migration courts were created through a 2006 reform of the asylum system. Policymakers expected the migration courts to be more generous and humane in deciding asylum appeals than the former appellate organ that was organized as an administrative tribunal called the Aliens Appeals Board [Utlänningsnämnden] (Johannesson 2017). In contrast to the former administrative tribunal, the migration courts are independent from the government and free to change the initial decisions made by the Swedish Migration Agency if they find inaccuracies either in substance or in procedure. Despite their independence and far-reaching authority to change the Migration Agency’s decisions, only approximately 13 percent of appealed asylum cases were approved at the migration courts during the time of this study (Martén 2015; Swedish National Courts Administration n.d.). These figures are low compared to the acceptance rates at the former administrative tribunal, the Aliens Appeals Board, which ranged from approximately 30 to 50 percent during its last years of operation (Skr. 2003/04:53; SOU 1999:16). Based on these figures, policymakers’ expectations about the migration courts’ humane and generous decision-making were clearly exaggerated. ” (1166-1167)

“Approaching asylum applicants with “presumptive skepticism,” it is important to note, does not qualify as an impartial approach in asylum cases. The principle of the benefit of the doubt should apply to asylum applicants, which prescribe a protection-oriented and affirmative approach to asylum narratives from adjudicators. The purpose of this principle is to prevent people in danger of persecution from being refused protection because they cannot access evidence (Kagan 2002, 372; UNHCR 2013; Hathaway and Foster 2014). However, studies reveal that in practice, decision-makers tend to approach asylum applicants with skepticism and suspicion (Anker 1990; Rousseau et al. 2002; Bohmer and Shuman 2008; Crepeau and Nakache 2008; Millbank 2009). “ (1170)

“Court decisions are settled by voting, and if the vote is tied, the trained judge casts a deciding vote. However, if all three lay judges have an opposing opinion to that of the legally trained judge, their opinion wins. That happens in approximately one percent of all appealed asylum cases, and in the absolute majority of them, the legally trained judge wants to reject the appeal while the lay judges vote for approval (Marte´n 2015, 13). Consequently, legally trained judges are generally more inclined to reject cases than are lay judges.” (1172)

“Many litigators [from the Migration Agency] considered their primary task to be demonstrating that the asylum applicant lacked credibility in the oral hearing.” (1174)

“Litigators’ perceptions of partial behavior were directly connected to expressing affirmation toward asylum applicants. “ (1175)

“Judges interviewed in this study agreed that litigators were the most knowledgeable actors about sociopolitical situations in other countries. When admitting that, the judges faced a dilemma as they had a responsibility to ensure that each case in court was thoroughly investigated (Diesen 2012, 204). In asylum cases, they therefore made themselves dependent on the expertise of the litigators to get the case sufficiently investigated, which interfered with their obligation to also treat litigators as one party in an adversarial trial. Litigators’ skeptical approaches toward and prejudiced views of asylum applicants were, as a consequence, not always regarded as one party’s petition but instead as neutral knowledge.” (1176)

“Such meaning constructions go against the international guidelines expressed by UNHCR (2011) and others (Kagan 2002; Sweeney 2009), as well as against national guidelines in Sweden (Swedish Migration Agency 2013; Swedish National Courts Administration 2007; RCI 09/2013) regarding how to approach asylum applicants’ protection claims. “ (1177)

Perspektiv/teoretiska begrepp

Artikeln testar ‘the liberal paradox’.

“The “liberal paradox” thesis stipulates that courts are driven by logics that hamper restrictionist immigration policies. “ (1162)

“Liberal paradox” between prioritizing national citizens over immigrants and adhering to the liberal ethics of universal human rights.” (1163)

Metoden för studien

“An interview study with judges, litigators, and public counsels working with asylum appeals in the Swedish migration courts, a group I refer to as judicial workers.” (1163)

“Accessing judicial settings is particularly difficult because of the high status of the actors working there, as well as their concerns about confidentiality (Anleu, Blix, and Mack 2015, 158). In this study, it took months to obtain access to judicial workers at the courts. However, using a sequential interview sample strategy (Small 2009), I developed a relationship of trust with some of the gatekeepers at managerial levels and through them, managed to conduct interviews and also observe oral hearings at the courts.” (1168)

“I interviewed eight judges [rådmän] at three different migration courts, nine litigators [processförare] who act as adversarial parties in the court procedure from the Migration Agency, and eight public counsels [offentliga biträden] who assist asylum applicants in court trials. Interviews were conducted in Malmo, Stockholm, and Gothenburg during 2013 and the first month of 2014.” (1169) 

“Observations of court hearings to expand the material for this study. In total, I observed seven oral hearings between November 2013 and January 2014 at different migration courts in Sweden. “ (1169)

Documents and texts (1169)

Summarised by: Josefin Åström