In Courts We Trust – Administrative Justice in Swedish Migration Courts

År: 2017

Typ av text: Doktorsavhandling

Publicerad av: Stockholms universitet, statsvetenskapliga institutionen

Språk: Engelska

Författare: Livia Johannesson

Antal sidor: 254

Tillgänglig på: http://su.diva-portal.org/smash/get/diva2:1072557/FULLTEXT01.pdf

Vad texten handlar om

“I denna avhandling undersöks hur juridiska praktiker såsom tvåpartsförfarande, muntliga förhandlingar och domstolens oberoende ställning genererar rättssäkerhet i asylbedömningar. Fallet som studeras är de svenska migrationsdomstolarna.” (217)

“problematiserande omtolkning av rättssäkerhet [Eng: administrative justice] i domstolar. De två övergripande forskningsfrågorna är: 1) Hur konstruerades domstolarnas roll i relation till rättssäkerhet under policyprocessen som ledde fram till domstolsreformen 2006? 2) Hur förstår och praktiserar de juridiska aktörer som ska implementera domstolsreformen rättssäkerhet?” (218)

Viktigaste resultat

“The argument pursued throughout this study is that the different meaning constructions policymakers and implementers attributed to judicial independence, adversarial roles and orality created a ceremonial version of administrative justice, which functions to legitimize the controversial consequences of Sweden’s refugee policies.” (174)

“the procedure is staged as two equal parties in front of an impartial adjudication board. This staging of the procedure creates a symbolic staging of administrative justice. The adversarial setup is often portrayed as the ideal procedure for fair dispute resolution, with the criminal courts procedure as an ideal model. However, for those who have an active participating role in this procedure, it is evident that the resources the two different adversarial parties possess are highly unequal. What this staging does, therefore, is to legitimize the procedure for the general public, that is, those who view this procedure from a distance but do not risk to be positioned inside it. The adversarial setup communicates fairness to the Swedish public, but for the workers inside the asylum appeal procedure, this setup creates ambiguous roles and responsibilities, which occasionally are used to manipulate the procedure to the applicants’ disadvantage.” (176)

“What the analysis of the judicial workers’ meaning constructions of orality indicates is that the oral elements in the investigation functions as a symbol of administrative justice as it gives the impression of transparent communication between the courts and the asylum applicants. What the analysis of the judicial workers’ perceptions about credibility shows is that credibility assessments are a non-transparent activity in the courts. Oral hearings open up for intuitive, prejudiced and emotionally derived decisionmaking, but that is not compatible with the official language of the courts and therefore the judicial workers have difficulties openly discussing how they the credibility assessments without jeopardizing their professional identities.” (179)

“Ceremonial administrative justice is important for the legitimacy of the courts as the institutions in society that uphold rule of law and justice.” (182)

“To conclude, the ceremonial version of administrative justice that is constructed by both policymakers and judicial workers disguises aspects of the procedure that is both procedurally unfair and risks leading to inaccuracy in decision outcomes. It does, however, bring legitimacy to the asylum determination procedure by its use of metaphors, symbolic objects and ritual practices that symbolize administrative justice to the general public and the professional workers. And by doing that, the court reform succeeded in solving one of the major problems in the former asylum system, namely its lack of legitimacy among the general public. It succeeded to improve the legitimacy of the procedure without changing the direction of Swedish refugee policy in any substantial way. Swedish refugee politics continue to be arranged around the dilemma of wanting to maintain a restrictive refugee policy, in line with the global refugee regime described in chapter four, but at the same time not wanting to be responsible for the inhumane consequences of that kind of regulation. There were no suggestions in the court reform that explicitly aimed for more generous decision-making, even if that was how the court reform was framed by the advocates of the reform. Instead, the court reform improved the legitimacy of the asylum determination procedure by placing symbols of administrative justice in the procedure. The political consequence of this reform is that the ceremonial version of administrative justice functions to legitimize the inhumane consequences of the refugee policy that is employed in Sweden. The court reform transformed the rejection of asylum applicants from being a political question about compassion and morality to becoming a judicial question about standards of proof and credibility. This transformation did not mean that the arbitrariness and moral considerations disappeared from this determination; it only dressed them in judicial language and practice. What this transformation did was to shield the politicians from the responsibility for rejecting asylum applicants on unclear and arbitrary grounds. “ (186)

“which construction of the courts’ role in relation to administrative justice was communicated to the general public in the policymaking of the court reform. The conclusion from that analysis was that the conflict stood between a framing that valued efficiency and another one that valued humanitarianism in the procedure. Both of these frames’ prescriptions for actions are reflected in the outcome of the policymaking process. The court reform was presented together with a temporary Aliens Act that granted many formerly rejected asylum applicants permanent residency on humanitarian grounds. This law was communicated by the humanitarian frame as a “reset” of the former dysfunctional and inhumane asylum determination system, thereby marking a new era of humane and lawful asylum determinations. The migration courts became the symbols of that new era.” (174-175)

“The judges and litigators viewed the public counsels in general as lacking the competence and knowledge to assist their clients. This creates a perception of the public counsels as unlikely to be legitimate carriers of knowledge, which is a disadvantage for the applicants. At the same time, the interviewees stated that the litigators took advantage of their double roles as they acted as experts (and were seen as experts by the other judicial workers) simultaneously as many of them took their roles as adversarial party seriously and argued for rejections even in cases where they did not fully believe that to be the most correct decision. The judges at the migration courts also treated the litigator with this double standard as they simultaneously saw them as parties in the procedure, and as experts on COI.” (175)

“the judges have an investigatory responsibility. It is unclear, however, just how far that responsibility reaches, and the interviews showed that judges interpret this responsibility differently. Some judges took an active role in investigation of the asylum claims, while others understood their role as balancing the unequal resources between asylum applicant and litigator.” (175)

“Scholars have argued that if the principle of being innocent until proven guilty would apply in asylum procedures, the burden of proof would be placed on the litigator, who is a state actor and therefore the strongest party, and the decision-maker would be forced to presume that the asylum applicant told the truth until the litigator could prove the opposite (Popovic 2005; Durst 2000).” (176)

“This study found that affirmative approaches are perceived to be connected to political agendas while skeptical approaches are viewed as more neutral and judicially correct.” (177)

“there is a discrepancy between what the formal language of the court prescribes as legitimate methods for assessing credibility and how the decisions on asylum were taken in practice. This is a conclusion that several other studies of credibility assessments in asylum determinations have also found (Kagan 2002; Rousseau et al. 2002; Wettergren 2010; Wikström & Johansson 2013; UNHCR 2013; Tomkinson 2015; Thorburn Stern & Wikström 2016) (178)

“The judges lacked a legitimate language to express how they made determinations in concrete terms when they assessed credibility during the physical encounter. The official language of the courts rejects intuition and subjectivity, and therefore the interactional dimension of the oral hearing is dismissed by judges in written motivations for decisions.” (178)

“the interviewees expressed surprise over the fact that no refugee advocacy groups demonstrated outside the migration courts, as it had been a regular phenomenon at the AAB. The reason for this attention could be that the determinations of asylum claims were under the direct responsibility of the government in the former asylum system. With the court reform, this chain of responsibility was broken. The migration courts have succeeded in maintaining legitimacy by connecting administrative justice to the judicial practices of independence, adversarial roles and orality. This ceremonial version of administrative justice is a way to make sure that justice is seen to be done.” (182-183)

“In the Swedish migration courts, the judges lean to a large extent on the litigators to assess the COI; this study found that the litigators tend to use the COI strategically to support their claims for rejections. This indicates that the COI can be manipulated to the applicant’s disadvantage, which potentially could lead to rejections of asylum applicants with asylum claims that do meet the legal criteria for international protection. Moreover, the findings from this study show that the credibility assessment made during the oral hearing is difficult for the judges to explain without using emotional, interactional and subjective indicators of credibility. In the court rulings, the official legal indicators such as vagueness, inconsistency and implausibility are used. However, the official legal indicators of credibility are not supported by research on how to detect deceptive behavior. In conclusion, justice as accuracy in outcomes is not the prioritized value in the ceremonial version of administrative justice employed at the migration courts. “ (184)

“There is no evidence that Swedish political actors in general found asylum seekers to be “unwanted”. In Sweden, politicians were not publicly articulating a restrictive agenda for refugee policies during the first years of the millennium in Sweden, even if the more restrictive EU agenda on refugees was implemented during these years. Public mobilization was also numerous and vocal for increased rights for asylum seekers and undocumented immigrants during the same years. Moreover, during the 1980s and 1990s, when the government had total control over asylum determinations in Sweden, several refugee amnesties were conducted by the government. Research has argued that these amnesties were used to soften the consequences of simultaneously introduced restrictive measures in the refugee policy area (Abiri 2000; Appelqvist 2000; Borevi 2012). However, it shows that the politicians wanted to soften the restrictive policies to accommodate the refugee friendly opinion in Sweden.” (188)

“Research has also shown that public opinion can change views on immigration depending on how the questions about immigrants are formulated. When the public becomes aware of the consequences of immigration policies, such as how deportations of rejected asylum applicants are conducted, the attitudes tend to change in a more inclusive direction (Ellermann 2006). This argument connects to my findings from the frame analysis of the Swedish court reform. In chapter five, I showed that the Swedish political debate which preceded the court reform focused heavily on the sufferings of rejected asylum applicants. The storytelling of the humanitarian frame was saturated with morals and emotions which helped mobilize Parliament for the court reform and the amnesty proposal.” (189)

“This finding implies that the political and judicial branches stood in an implicit dependent relationship to each other. The political branch was dependent on the judiciary’s ceremonies of justice to legitimize their refugee policy. The migration courts were implicitly dependent on the political branch in order to communicate independence from the current political agenda.” (192)

Perspektiv/teoretiska begrepp

Field of literature: Immigration policy research

“Det teoretiska ramverket för denna studie bygger på tre perspektiv: tolkande policyanalys som förstår implementeringsprocesser som kommunicering av mening mellan olika aktörer; socio-legal forskning som studerar rättssäkerhet som empiriskt fenomen och etnografisk forskning om domstolar som undersöker både instrumentella och symboliska dimensioner av juridiska praktiker. Tillsammans skapar dessa perspektiv ett ramverk som möjliggör en analys av meningsskapande kring rättssäkerhet i asylbedömningar på svenska förvaltningsdomstolar.” (218)

Metoden för studien

Frame analysis av policyprocessen som ledde fram till avskaffandet av Utlänningsnämnden, och inrättandet av migrationsdomstolar
Intervjuer med domare på migrationsdomstolen, processförare från Migrationsverket och offentliga biträden
Observationer i rättssalen vid överklaganden

Mycket bra citat

“Forskning visar dock att det finns många osäkra moment kopplade till bedömningen av asylansökningar eftersom det ofta bara finns en muntlig berättelse att styrka asylansökan med. Denna berättelse ska översättas av en tolk och jämföras med vad beslutsfattaren vet om platsen som den asylsökande söker skydd från. Dessutom är det en framåtsyftande bedömning av framtida risk för förföljelse eller tortyr som ska göras av den som bedömer asylärenden. Det är av dessa anledningar som forskare har kallat asylbedömningar för det mest komplicerade beslutsfattandet som utförs i västerländska länder.” (217)