The art of the (im)possible: legislators’ experiences of the lawmaking process when reforming migration law 

Year: 2016

Type of text: Vetenskaplig artikel

Published by:  THE THEORY AND PRACTICE OF LEGISLATION, 2016

VOL. 4, NO. 1, 45–63

Language: English

Author: Daniel Hedlund, Ann-Christin Cederborg, & Mauro Zamboni

Pages: 20

Available at: https://www.tandfonline.com/doi/abs/10.1080/20508840.2016.1158391
[Inte offentligt tillgänglig]

Short description of text 

The paper is an interview study where 15 former legislators of the parliamentary Committee on Social Insurance (COSI) where interviewed about the process leading up to the new Swedish 2005 Alien Act together with the new system for appeals and procedures. The material includes all parties that were represented in the committee at the time (period 2002-2006) apart from one.

Most important results

“The overall finding is that the preceding political negotiations can be one of the reasons for unclear aims when politicians’ propose new legislation. This is because directives can consist of many divergent perspectives and considerations. The specific findings are that the period under consideration was described as dramatic and stressful with the presence of uncommon political collaboration between political parties as well as the pushing of legislation via budget negotiations. In addition, the participants said that the suggested changes in asylum policy and implementation were mainly based on other policy aspects, such as fiscal considerations and state-municipality relations. Participants also viewed that identified problems with asylum decision-making have not been sufficiently resolved by the new framework.” (abstract)

“the intent of the political negotiations for a new Aliens Act was to improve the rule of law and to reduce the potential rigidness of the legislation.” (50)

“In exchange for voting with the government’s budget plans, the government’s support-parties pressured for an asylum amnesty as well as for changes in legal formulations. This approach to policy development was perceived by several participants as undesirable but was, all the same, one of the few ways to achieve leverage towards the government.” (55)

“Participants also expressed the view of being involved in stressful decision-making, as the different components of the process were described as too complex to overlook, with no time for reflection. This made participants worried about the haste in which choices were made” (57)

“To some degree, all participants also perceived that the provision on ‘particularly distressing circumstances’ in the 2005 Aliens Act seems to be applied too restrictively, and not according to what they considered that the COSI had intended.” (58)

“The participants who perceived that the influence of the legal field has grown at the expense of politics are represented by the following statement:

I argue that one could do other things; it should be possible to interpret the legislation in other ways than how it is done. Now that the lawyers are making the decisions, all other aspects are excluded [from the process], that is, the humanitarian or the human rights perspective. Now it is the lawyers who are interpreting the legislation and then it is interpreted in this narrow way [ … ] and then all else has to go, when the law is applied. (Legislator A)” (59)

“the Committee had various perspectives on, for example, how to assess need-of-protection and how to understand the ‘apathetic’ syndrome of asylum seeking children.” (62)

“However, several of the participants raised the juridification of the asylum system as a dilemma and expressed belief that the asylum system today is still full of random solutions. The increased reliance on the courts had occurred at the expense of politics. This means that a new law resolves migration issues ‘juridically’ and that this legal view can cause conflicts with other professionals who base their understandings on humanitarianism or vulnerability.32” (62)

“It is also notable that some of the legislators’ considered phenomena in the migration system that cause continuing displeasure. For example, the perception that increased refugee flows could have a direct impact on asylum decision-making. They said that such influences are not a legitimate component of a legal and individual assessment of an asylum case.” (62)

Theoretical perspective/framework

interpretative phenomenological analysis (IPA)

Method

“Nine out of 17 committee members (53%) participated in the study, as well as six deputies. This means that a total of 15 legislators participated in this study. One participant was active as a member of parliament at the time of the interview; the others had left parliament following the national elections of 2006 or 2010.” (51)

“interviews between August and December 2012. The interviews took place at different settings after agreement with each participant. The interviews lasted between 45 and 75 minutes. A semi-structured interview guide with open-ended questions was used” (51)

Summarised by: Josefin Åström