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The making of procedural (in)justice in migrant-state interactions at local, national and European level

Fri July 9, 08:00 - 09:30, Session #193 panel | SC Migration, Citizenship and Political Participation

chair

Sophie Andreetta

Max Planck Institute for Social Anthropology

chair

Larissa Vetters

Max Planck Institute for Social Anthropology

Procedural justice is a fundamental aspect of legal systems ensuring fair treatment of people in their interactions with state officials. Research has shown that procedural (in)justice has an impact on the perceived legitimacy of legal rules by citizens as well as immigrants. In the case of the latter, unfamiliarity with administrative procedures of the receiving country poses further challenges and procedural rules have sometimes been instrumentalized by governments to filter and restrict immigration. Together with its twin-panel looking at asylum claims-making, determination and reception, it contributes to interdisciplinary socio-legal scholarship that critically accompanies current developments in asylum and immigration policies. As part of a bipartite venture, this panel addresses the production, implementation and contestation of procedural justice and fairness in state-migrant interactions. Contributions explore the variety of ways in which procedural safeguards are invoked, altered, discarded, and reinvented in different interactions ranging from municipal registrations to bordering decisions, from residence permit issuance to regularizations. Of particular significance appear procedural issues relating to the timely and accurate provision of information as well as the (over)reliance on administrative practices. In addition to the perspectives of street-level bureaucrats at the municipalities, immigration offices, and law enforcement officials, papers include migrants’ self-perceptions and sense of justice. This panel therefore offers a multiscalar and dynamic approach to the discussion of procedural (in)justice that is produced and reproduced in migrant-state interactions in different settings and by a variety of actors. PAPER #1 Procedural (In)Justice as Practice: Ethnographic insights from Switzerland and Germany AUTHOR(S) Laura Affolter (Hamburg Institute for Social Research) Tobias Eule (University of Bern) ABSTRACT Building on ethnographies of administrative decision-making in Swiss asylum procedures and German immigration offices, we approach the issue of procedural (in)justice in immigration law not in a normative but in an empirical way by asking what (procedural) justice and fairness mean to street-level bureaucrats, how this structures their everyday practice and what the consequences of this are for the people they are dealing with. In doing so, we propose a practice-theoretical approach to administrative work and to understanding law in action, by paying attention to migration officers’ routinised, self-evident and largely unquestioned behaviours, not only in terms of what they do, but also of what they think, feel and know. Through this, we can take into account the structural, organisational and ideological contexts in which officers work, and the constraints posed by them, whilst at the same time recognising officers’ agency. This is important for three reasons. First, it allows us to understand procedural (in)justice as something that is continuously (re-)produced in everyday street-level practice. Second, it helps us to make sense of contradictory trends in immigration law. Third, it cautions us to not too quickly reduce procedural (in)justice as being the outcome of individuals’ arbitrary behaviours. PAPER #2 Informing for the sake of it. Confusion, Ignorance and Pressing Deadlines in Migration Law Implementation AUTHOR(S) Lisa Marie Borrelli (HES-SO Valais-Wallis) Anna Wyss (Université de Neuchâtel) ABSTRACT Individuals subjected to legal procedures need to be informed about their rights and duties and are expected to cooperate with state authorities. In our contribution, we build on multi-sited ethnographic research in different European countries and zoom into the asymmetrical negotiations between street-level bureaucrats and migrants with precarious legal status. We explore how (the lack of) being informed affects procedural justice during law implementation and how legal consciousness of both migrants and bureaucrats becomes relevant here. We demonstrate that migrants are often not sufficiently informed about the proceedings they are exposed to. First, we observe a difficulty to anticipate how laws work because of frequent policy changes, bureaucrats’ discretionary power and obfuscation of responsibilities. Second, we argue that migration law is implemented in an atmosphere of suspicion, negatively affecting both migrants’ and state officials’ trust in each other and building a shaky ground for ‘informed consent’. Third, a general trend towards acceleration in migration enforcement allocates limited time for information to transcend, leaving migrants uninformed about legal procedures, which aggravates the structural violence at place. Despite receiving only fragmentary information, migrants are still expected to cooperate in these illegible state procedures and if deemed disobeying, risk to become further marginalised. PAPER #3 Procedural (in)justice for EU citizens moving to Belgium: an inquiry into municipal registration practices AUTHOR(S) Roos-Marie van den Bogaard (UGent), Ana Horta Correia (Fragomen), Wout Van Doren (Fragomen), Ellen Desmet (UGent), Anthony Valcke (University of Kent) ABSTRACT Moving as a French or Dutch citizen to Belgium should be easy, given the freedom of movement of EU citizens. Reality paints a different picture, however. This paper analyses the practices of Belgian municipalities as to the registration of EU workers, self-employed, jobseekers and their family members. It is based on a desk study, a survey among a sample of municipalities, semi-structured interviews with municipal officials, the Immigration Office and other stakeholders, and a comparative research with neighbouring countries. The achievement of procedural justice for EU citizens is impaired by divergent and at times questionable practices by street-level bureaucrats at municipal level and the Immigration Office. Examples include a lack of comprehensive and accessible information (e.g. paying less attention to third country national family members and less common categories such as posted workers); administrative instructions by the Immigration Office that do not appear in line with the case law of the Court of Justice of the EU; municipalities requiring more documents than what is permitted by law; and a lack of resources hindering the capacity of the Immigration Office to review all applicants’ files, which relies on a phone call being made by municipal officials to identify ‘suspicious’ files. The paper also reflects on the challenges relating to the decentralisation of part of the processing of residence applications (caused, among others, by the divergence in size and capacity of municipalities) and on the impact of privatisation on the handling of such applications (caused by the subcontracting of the digital workflow). PAPER #4 “Tell me what documents you have, and I will tell you who you are”. Analysing migration law through the ‘life trajectory’ perspective. Italy as a test case. AUTHOR(S) Paola Pannia (University of Florence) ABSTRACT Law is often analysed by scholars in respect of its (non)compliance with national, European and international human rights legal frameworks. Legal scholars are much more committed to researching how the law should be, rather than exploring how it functions and what implications it has. The same logic applies to the migration domain, where little research has been done on the consequences of migration laws on the ordinary lives of people, their perspectives and possibilities for planning their future. Against this backdrop, this study aims to explore how migration laws affect foreigners’ life trajectories and opportunities. Italy will serve as a case study. The scarcity of regular immigration channels for non-EU citizens in this country, mixed with the frequent recourse to mass-regularization programs, very fast-changing legislations and a high discretionary implementation, provide a suitable environment to grasp the complex interplay between the legal framework and people agency over time. To this end, the analysis of the legal status regulating migrants’ conditions in Italy (and its evolution since 1998 – when the consolidated migration Act was approved) is combined with qualitative interviews, which follow both an in-depth and longitudinal approach. This paper delves into the role of rights (and legal certainty in accessing these rights) in the life trajectories of migrants, and assesses how migrants react to the continuously changing normative framework. Enhancing the understanding of this nexus between laws, their implementation and migrants’ life is also meant to promote a new approach to test migration legal systems vis-à-vis the rule of law.

discussant

Zeynep Yanasmayan

author

Laura Affolter

Institut für Sozialanthropologie, Universität Bern

author

Tobias Eule

University of Bern

author

Lisa Marie Borrelli

University of Bern

author

Anna Wyss

University of Bern

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Ellen Desmet

Universiteit Gent

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Ana Horta

Fragomen

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Anthony Valcke

University of Kent

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Paola Pannia

University of Florence

author

Wout Van Doren

Fragomen

author

Roos-Marie van den Bogaard

Ghent University

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