Legitimized Refugees: A Critical Investigation of Legitimacy Claims within the Precedents of Swedish Asylum Law

År: 2019

Typ av text: Doktorsavhandling

Publicerad av: Lunds universitet, rättssociologiska institutionen

Språk: Engelska

Författare: Martin Joorman

Antal sidor: 273

Tillgänglig på: https://portal.research.lu.se/en/publications/legitimized-refugees-a-critical-investigation-of-legitimacy-claim

Vad texten handlar om

Texten är en diskursanalys av hur Migrationsöverdomstolen legitimerar sina prejudicerande beslut rörande asyl på flyktinggrunder. Syftet är att synliggöra maktrelationer. Författaren konstaterar att det finns en institutionaliserad maktobalans [institutionalized power imbalance] i asylsystemet och föreslår små förändringar. Avhandlingen innehåller även en överblick över det svenska asylsystemet från 1990 fram tills 2016, och extra vikt läggs vid reformeringen av överklagandeprocedurerna 2005/2006 när Utlänningsnämnden ersattes med migrationsdomstolarna och Migrationsöverdomstolen.

Viktigaste resultat

“the first ten years of the current system have been a period of relative stability regarding asylum decisions that become precedents [prejudikat]”. (58) → 2015 did not change this

“precedents of Swedish asylum law are legitimized by reference to rationalization, moral evaluation, and/or as narratives. Providing the respective decisions with some meaning, rather than merely making sure that they are legally correct, the analysed precedents are, thus, legitimized not only by reference to the authority of law. […] illustrate how judges pay notice to the complexity of refugee migration in the world of today.” (abstract)

“Given the inherently positive-sounding term of rättssäkerhet, the ‘juridified’ (Habermas: verrechtlicht) state of the asylum system in present-day Sweden has the effect that both acceptance and rejection decisions are invested with a strongly legalistic understanding of legitimacy.” (216)

“In other words, the claim that only ‘legitimate refugees’ are accepted in Sweden and, consequentially, only ‘illegitimate asylum seekers’ are expelled from Sweden is questionable. Primarily, my study has not been focused on contributing to the body of research that criticises this lack of certainty. Surely, some excerpts from my interviews (IT6 & IT8) suggest that the law that is socially practiced at the MCs does not contribute to certainty when it comes to the question of who is to be recognized as in need of protection. In any case, notwithstanding the significant differences between a legalistic understanding of certainty and the various ways in which (un)certainty has been problematized in social theory (see Banakar, 2015, pp. 23f), absolute certainty cannot be achieved – especially not when relying on assessments that partially depend on trying to predict the future. As I stressed from Chapter Five onwards, in the analysed precedents, such attempts to estimate the probability of future events do not present any mathematical or otherwise specified notion of probability. Instead, in the analysed decisions, developments in the future are deemed either ‘probable’ (sannolik[t]) or ‘not probable’ (inte sannolik[t]).” (225)

“Based on this analysis, for socio-legal research, the most significant point that this study has made is the finding that even the MCA – which officially produces precedents solely as guiding answers to questions of legal normativity – legitimizes its decisions discursively not by only referring to the authority of law. Rather, besides legal norms, precedents of Swedish asylum law also refer to factual claims about the past, present and future. Moreover, they display legitimacy claims that are as much rooted in moral and political discourses as they are based on legal sources. Furthermore, the MCA also legitimizes its decisions by structuring them as legal narratives. These narratives almost always begin by summarizing and paraphrasing the lower legal instance’s decisions. Thus, they invest certain arguments, which were initially made by the MB or at a MC, with legitimacy. Only thereupon is the MCA’s final decision presented.” (227)

“To start with, there is a procedural power imbalance between the applicants and the MB; an imbalance which continues to exist yet shifts throughout the three legal instances due to the “dual role” (Johannesson, 2017, p. 98) of the MB as, generally, an “expert agency on asylum” (ibid.) and, as soon as a case reaches the second instance, the legal party who opposes the applicants. In addition to that, the production and/or compilation of COI is dominated by a unit of the MB, landinformationsenheten“ (229-230)

“Precisely therefore, given the institutionalized power imbalance that I highlighted throughout this study, the position of the asylum applicant should be strengthened (cf. UNHCR, 1998).” (232)

“Thirdly and lastly, thus, anyone who argues for changes within the framework of the current refugee regime should face the reality that even the most legally certain asylum system runs the risk of deporting people who will be psychologically and bodily harmed (see De Genova & Peutz, 2010). (233)

Perspektiv/teoretiska begrepp

Seyla Benhabib

‘porous borders’

her usage of Robert Cover’s distinction between ‘law as power’ and ‘law as meaning’

Norman Fairclough’s conceptualization of discursive legitimation strategies

Robert Alexy’s and Jürgen Habermas’ approaches to legal discourse

Jürgen Habermas’ discussion on legitimacy through legality

Metoden för studien

critical discourse analysis

ten interviews with judges at Sweden’s four (second-instance) Migration Courts as well as at the (third instance) MCA,
review of 200 precedents (published 2006-2016) that concern people who applied for a residence permit in Sweden

of these 200, 75 precedents of relevance for Swedish asylum law appear in the study.

Drawing on Robert Stake’s understanding of a collective case study, the interviews are used to sample six precedents for in-depth analysis.

Ev policyförslag

“And yet the study’s insights compel me to argue for changing the asylum system. When focusing on the Swedish context, one might highlight that the ‘country information unit’ (landinformationsenheten) ought to become entirely independent from the MB and that migration court judges should have access to professional translations of all the information that could be relevant. However, given the growing body of research that also criticizes other “evidentiary grounds” (Johannesson, 2017, p. 177) – such as medical age examinations and credibility assessments (e.g. Noll, 2014; 2016; Wettergren & Wikström, 2014; Wikström, 2014; 2015; Wikström & Stern, 2015; 2016) – based on which asylum claims are processed, much more thorough change is needed. A precondition for such change is to, firstly, realize that there cannot be any absolute certainty in processes of asylum determination (see UNHCR, 1998; cf. Kagan, 2002). On a higher abstraction level, the judicial ideal of legal certainty – and thus “’the rule of law’ (Rechtssicherheit) [which includes] the promise of certainty” (Banakar, 2015, p. 13) – must not be confused with certainty in the empirical sense of this word. Obviously, yet, the decision-maker strives to be as certain as possible that expelled applicants will not be harmed.” (232)