Inside Asylum Bureaucracy: Organizing Refugee Status Determination in Austria

Front matter

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Julia Dahlvik

Inside Asylum Bureaucracy: Organizing Refugee Status Determination in Austria

Foreword

Given that the so-called “refugee crisis” has loomed so large in European politics in recent years, it is indeed surprising, as Julia Dahlvik notes in her introductory comments to this significant new study, that so little research attention has been directed toward the government bureaucracies charged with deciding the growing numbers of asylum claims, and with implementing the conversion of asylum from a human rights issue to a key element of border control. It is easy enough to find official documents presenting idealized accounts of these bureaucracies and the formal decision-making procedures they are expected to follow, but it is far harder to glean information on how things work out in practice. This book represents a major step toward remedying that lacuna for the important case of Austria.

Such studies are made all the more necessary because the processes they investigate are normally invisible and because, as Dahlvik persuasively argues, organizations such as the Austrian asylum bureaucracy are characterized above all by their organizational practices rather than their formal structures. These practices, and the actions that constitute them, are anchored in material artifacts as well as human actors. In the Austrian Federal Asylum Office (FAO), as in any bureaucracy, these material artifacts are primarily textual — annotated documents, compiled into case files. These documents, too, must therefore also be regarded as actors that play their own part in structuring the social practices of the institution.

Right across Europe, the formal structures have been subject to almost constant change, and Austria is certainly no exception. Even so, a study such as this will retain its value not only because routinized practices change more slowly and incrementally — partly because they are heavily dependent upon newly appointed officials observing the behavior of their colleagues and orienting their own practices accordingly — but also because the issues and dilemmas that refugee status determination entails, such as those attached to the assessment of credibility (Chap. 6), have remained surprisingly stable over the years.

Although a new piece of legislation may disrupt some existing practices to the extent that they may even be rendered invalid, the fact that these practices are located within a broader conglomerate of well-established social practices, not all of which are affected to the same degree - if at all — by the new law, serves to vi Foreword dampen the overall effect. As when a stone is dropped into a pond, the ripples created by a new law radiate outward, but decrease in amplitude and eventually disappear altogether. What is more, the further one moves down the organizational hierarchy, the greater the importance of localized organizational practices relative to the legislation and formal procedures imposed from above and from the outside.

Thus, there are any number of reasons why Dahlvik’s study of the different actors in the asylum process — primarily the officials in one branch of the FAO, but also, and mainly through the eyes of those officials, the asylum applicants, interpreters, and medical and linguistic experts with whom they interact — provides us with insights that could only be obtained through an institutional ethnographic study.

To mention only a few of the many examples throughout Parts II and III of the book, we learn a great deal about how, in practice, FAO caseworkers prepare for and conduct interviews; how they go about balancing adherence to regulations with the exercising of personal discretion when reaching and writing up their decisions; and the extent of individual variation — such that the practices of certain officials may even, as one interlocutor told Dahlvik, make colleagues’ hackles rise. We discover how these caseworkers, faced with the uncertainties inherent in almost every asylum claim, subjectively assess the performances of asylum applicants at their interviews in order to decide whether they are telling the truth. We find out about the failings of (sometimes) untrained interpreters and the possible detrimental effects of their actions in the fraught context of asylum interviews; and that caseworkers often compound these failings by addressing their questions to the interpreter rather than the asylum claimant, who is referred to in the third person. We learn too about experts who delay decisions by failing to submit reports within agreed deadlines. None of this material would be even indirectly accessible to a researcher restricting herself to formal structures and official instruction manuals. In addition to these empirical insights, we also learn, through the concluding analysis, about the extent to which the FAO’s procedures are socially constructed and what might be done to make asylum decision making better.

From another perspective, which seems very compatible with Dahlvik’s own approach, the Austrian asylum system as described here appears to be a classic example of “strong” legal pluralism in which the applicable law and legal institutions cannot all be subsumed within a single “system” but arise from the articulation of a number of what Sally Falk Moore (1978) has labeled “semiautonomous social fields.” The key characteristics of such fields are that, while they are capable of generating rules and inducing conformity, they are not fully autonomous or socially isolated but are affected by the broader social matrix within which they are set. As a result, the “law” which is actually effective on the “ground floor” of society is the result of enormously complex and ... unpredictable patterns of competition, interaction, negotiation, isolationism, and the like (Griffiths 1986: 39).

The notion of “pluralism” is employed in several senses within the contemporary anthropology of law (Moore 2001), and at least four of these are evident here. First, the state itself is internally complex and diverse, and its official administrative

Foreword vii subparts not only cooperate but also sometimes compete for legal authority; here, for example, the processing of asylum claims requires the involvement of the police and municipal authorities as well as the various branches of the FAO. Second, state law may depend upon the collaboration of nonstate social fields for its implementation. For example, NGOs are intimately involved in the processing of Austrian asylum claims. Third, the state itself vies with other state legal systems in supranational arenas, such as the EU, or with global institutions such as the UN High Commission for Refugees. Thus, Austrian state institutions are constrained to work within the framework of the 1951 Refugee Convention and the associated prohibition on refoulement, as well as no fewer than six EU regulations and directives. Finally, the state is enmeshed with nongovernmental semiautonomous social fields that generate their own norms and values and have the capacity to induce a degree of compliance to them. For example, the various professional groups implicated in the Austrian asylum process (FAO officials, judges, lawyers, experts, interpreters, and so on) interact in complex ways regulated not only by the rules OF procedure developed by the various state bureaucracies and different types of court, but also by the ethical codes of the specific professional bodies to which they belong, and by the unwritten conventions that have arisen through their day-to-day interactions.

This last point brings us back, once again, to the centrality of social practice, as amply demonstrated in Julia Dahlvik’s interesting and important book.

University of Edinburgh Anthony Good Edinburgh, Scotland April 2017

Griffiths, J. (1986). ‘What is legal pluralism?’ Journal of Legal Pluralism, 24, 1-55.

Moore, S. F. (1978). Law as process: An anthropological approach. London: Routledge/Kegan Paul.

Moore, S. F. (2001). Certainties undone: Fifty turbulent years of legal anthropology. Journal of the Royal Anthropological Institute 7(1), 95-116.

Acknowledgements

Studying processes that take place behind closed doors require the trust of a great number of people — not only those who believe that it will be possible but also those who eventually make it possible. I am therefore deeply indebted to those persons who opened these doors for me to the unknown world of the asylum bureaucracy. I particularly want to thank the people who provided me access to the former Federal Asylum Office and its staff, who were very open to me as a researcher. I am extremely grateful to all participants of this research. I especially want to express my appreciation to the asylum claimants, who have added enormous value to this project by allowing me to take part in their asylum procedure. Omitting the nonpublic asylum interview or the investigation of asylum records would mean missing a piece of the puzzle.

This book grew out of a dissertation at the University of Vienna, and I wish to acknowledge and thank the persons who have guided me along the way. I am particularly indebted to Christoph Reinprecht and Manfred Nowak, who, as supervisors, read drafts of the thesis and provided me with thoughtful feedback. Their guidance and critical comments have contributed substantially to the realization of this research. I also want to thank Heinz Faßmann for his support through the research platform at the University of Vienna. My sincere thanks go to Rosaline S. Barbour for inspiring my passion for qualitative research methods and to Ulrike Froschauer for introducing me to the world of the sociology of organizations. This study benefited from the constructive feedback and support of many scholars to whom I remain indebted.

I thank my colleagues for the critical debates and insightful comments that have shaped this project. I extend special thanks to Axel Pohn-Weidinger, Andrea Fritsche, Katharina Glawischnig and Kenneth Horvath, who have been a great help in the realization of this project, especially by engaging me in thoughtful discussions.

Anonymous reviewers of the book manuscript provided numerous constructive suggestions that made for a much-improved end product. I particularly want to thank the IMISCOE Editorial Committee for accepting my work in their Research Series and for the financial support for the open access publication of this book. I x Acknowledgements am indebted to Warda Belabas of the IMISCOE network and Bernadette Deelen- Mans, Evelien Bakker and Cath Jenkins of Springer for their continuous support in the publishing process. I thank the Springer language editing service for improving the readability of this book.

I owe my deepest gratitude to all the kind people who have supported me in various endeavors of my life, including my doctoral thesis and this book, particularly my parents, my partner and my friends as well as my larger family. Thank you for being there.

Contents

PartI Claiming Asylum in the Twenty-first Century: An Institutional Perspective 1 bon. T

1.1 The Decision- Making Context: The Confusion Over Asylum

1.1.1 Recent Developments in the Field of Asylum. ask 1.3 Old and New Theoretical Approaches: Street-Level

Chapter 1 A Introduction Geek for

In Austria, as in most European states, claiming asylum is one of the few possibilities to enter the state legally for most non-European migrants who are not highly skilled (except for family reunification). In 2015, during the so-called refugee crisis, 88,340 persons submitted asylum applications in Austria, adding to applications that were already pending (Bundesministerium fiir Inneres 2017). An asylum procedure can last from a few days to several years. This empirical reality confronts a large number of actors in their everyday and working lives, including asylum claimants, legal representatives, NGOs, and decision-making officials. Public officials’ work, their decisions — which impact these individuals’ lives — and their institutional embeddedness are at the center of this study. This book is the result of my research on social practices and processes in a governmental agency. It concerns the work of public officials employed at the former Federal Asylum Office (FAO), an administrative unit of the Austrian Ministry of the Interior in charge of processing asylum applications in the first instance. These officials decide whether an asylum claimant is granted or denied asylum or subsidiary protection or receives a residence permit on humanitarian grounds in Austria. In this book, I investigate the “what, how, and why” of a bureaucratic agency as an organization within a governmental system (Krause and Meier 2003).

The administration of asylum represents a field of public administration that has seen important development and change throughout recent decades as a consequence and a part of societal, political and legal events and developments in the world, which are also related to the movement of people, among whom are refugees. Nevertheless, the study of immigration bureaucracies has long been “conspicuously absent from the literature on public administration” (Wagenaar 2004:643). Investigating the process of refugee status determination is a pressing need for several reasons. Despite the intrinsic importance of asylum adjudication in

The original version of this chapter was revised.

An erratum to this chapter can be found at https://doi.org/10.1007/978-3-3 19-63306-0_12

© The Author(s) 2018 3 J. Dahlvik, Inside Asylum Bureaucracy: Organizing Refugee Status the field of human rights and persistent concerns about the quality of the process, organizational practices have thus far been a comparatively neglected area of concern for scholarship. Moreover, the decision-making process occurs in a highly controversial political context. More than 15 years ago, Steiner (2000:1) found that “few issues in Europe today are as controversial as the granting of political asylum.” Asylum is still a key issue of state politics (Joly 2016), and the controversies over asylum seem to have increased in the wake of the so-called refugee crisis.

This book does not provide a legal or policy analysis or a media analysis of current events and developments. Instead, the study focuses on the organizational context of decision making in the asylum procedure and offers an analysis of the social practices of public officials in administering and deciding asylum claims. The title of this book refers to Downs’s (1967) “Inside Bureaucracy,” and some findings of this study are surprisingly similar to those in his investigation of the bureaucratic organization half a century ago. This study takes a close look at the governmental body, understanding the bureaucratic apparatus as the “belly” (Mountz 2010: xxxii) or the “heart” (Fassin 2015) of the state. In the recent past, other researchers studying bureaucracies in the field of migration and asylum have adopted similar inside perspectives (e.g., Hall 2010; Calavita 2010; Bosworth 2014; Eule 2014; Jubany 2017).

This investigation aims to gain a complex understanding of how the everyday work of decision makers is structured and which social practices and processes are involved in administering asylum applications at the FAO. The study started from the assumption that the legal and administrative parameters, which are the main sources defining the work of decision-making officials, have differing or competing objectives and logics, producing structural contradictions. Research on the work of public administrators has shown that in enacting policies, they are confronted with inconsistencies and “inherently contradictory sets of ideas” (Mountz 2010:88). “Bureaucratic work is internally conflictive” (Heyman 1995:264), even if this is not outwardly apparent because coherent narratives are constructed for the public. As Thomas (2011:48) notes, “asylum decision making is notoriously difficult, perhaps the most problematic adjudicatory function in the modern state.” I argue that public agents have to balance these structural tensions in their interactions with the other involved actors and develop individual strategies for dealing with the prevailing circumstances. Thus, it seems essential to critically analyze these “dilemmas of the individual in street-level bureaucracy” (Lipsky 2010[1980]) and to investigate how officials address these conflicting logics in everyday work.

Consequently, the main interest of this study is first to investigate the circumstances under which decision makers work at the Asylum Office and how those circumstances can be explained. I then aim to explore how decision makers deal with these circumstances, that is, the identified structural dilemmas, and how decision makers’ practices can be explained (through social theory). I briefly discuss the consequences of the observed social practices and possible ways forward. To that end, a set of more detailed questions needs to be investigated. What does the organizational context look like, and how does it inform officials’ work? How are officials socialized in the organization? With which actors do officials interact in the course of processing an asylum application, and what are their roles in the procedure? How can officials’ relations to and the interactions among these actors be characterized and explained? What role do artifacts play in decision makers’ everyday work?

This approach offers an unprecedented view from the perspective of organizational sociology combined with a link to broader social theory, which surpasses traditional street-level bureaucracy approaches. I believe that this approach to theorizing, which includes theories of social practice (Reckwitz 2002), structuration (Giddens 2011[1984]), and social construction (Berger and Luckmann (1975[1966]), and which has been neglected thus far, makes a necessary contribution to the existing literature. In this study, I am interested in structural aspects regarding institutional, organizational and legal elements, which structure and contextualize the asylum procedure; however, I also examine aspects of agency, that is, the social practices and processes occurring at the front side and the back side of this administrative justice system. By studying action in its course, I aim to shed light on what is happening in this state agency and what is involved in deciding upon asylum applications. I investigate government action with qualitative and ethnographic methods and through sociological perspectives on organizational practice in the administration of asylum. Thus, the study responds to a call for more information on “what lower-level officials actually do in the name of the state” (Gupta 1995:376). While “it is puzzling that although human rights pervade nearly all actions that affect the public, so little attention is devoted to their administration” (Montgomery 1999:323), in dealing with refugee status determination, this book offers insights into the administration of (human) rights. Studying decision makers’ everyday work is relevant because it not only affects a large number of lives but also provides insight into our contemporary society and how certain topics are organized through bureaucracy. It is important to understand how the state governs migration, that is, how the forces of structure and agency that affect each other to allow for a holistic diagnosis of the administrative situation; this understanding also facilitates the ability to act on and possibly improve that situation.

The average citizen cannot be expected to know much about the asylum procedure since reports on institutional practices and processes are rare and often do not provide a comprehensive picture. This lack of knowledge can be attributed to the fact that these administrative procedures are not public and occur behind closed doors. If anything is communicated to the outside at all, responsible officials will “craft a unified, coherent narrative for public consumption” (Mountz 2010:58). A focus on the “street-level bureaucrats” (Lipsky 2010[1980]), the front-line workers who interact with their “clients” on a daily basis, and their everyday activities and taken-for-granted routines is not only able to help demystify and explain institutional practices and processes at the FAO; it can also contribute to making the asylum procedure more transparent.

Change is a constant in the field of asylum, which might be related to the controversiality of the topic. This field is characterized by permanent modifications at both the legal level and the organizational-structural level. In recent decades, numerous political and legal changes have been undertaken at national as well as European

Union levels. In Austria, the most recent institutional change was implemented in 2014 when the former FAO, established in 1992, was incorporated into the newly established Federal Office for Immigration and Asylum (FOIA) and the Asylum Court, established in 2008 and representing the second instance in the asylum procedure, was incorporated into the new Federal Administrative Court.

While reorganization is partly related to new (distribution of) responsibilities, the practices and processes involved in the administrative asylum procedure seem more resistant to change. Considering research findings on the bureaucratic everyday from this and other current studies as well as those from half a century ago (e.g., Downs 1967; Lipsky 2010[1980]), key patterns of practice and structure — and the dilemmas involved — are remarkably similar independent of the local context and the issue of administration. Hence, structural dilemmas and officials’ practices will likely remain much the same even if certain organizational processes are modified. Some of the theoretical implications made and drawn upon in this study are characteristic of any street-level bureaucracy; others seem particularly relevant to the asylum procedure. The findings suggest that if the procedure itself is not dramatically changed, its specific problems and dilemmas will very likely continue to exist. Therefore, it is interesting and important to better understand decision making in the context of asylum. This book examines how caseworkers address the dilemmas that confront them and how the stability of their practices can be explained against the backdrop of constant (structural) change.

Structure of the Book

The book is divided into four parts: (I) Claiming asylum in the twenty-first century, (ID) Setting the scene, (III) Performing the maneuver, and (TV) Conclusion and prospects. In the remainder of the first part, I sketch the social, political and legal context in which the asylum procedure is situated. I then discuss the contemporary amalgamation of migration and asylum and provide background information on the developments of the last few decades in the field of asylum and immigration control in Europe. Following this, the research approach is outlined, including the theoretical and methodological approaches in this case study. The second chapter provides additional contextual information regarding the legal and institutional framework of refugee status determination. After presenting the relevant international and supranational law, I briefly outline the legal and institutional developments in the Austrian asylum system. For a better understanding of the legal procedure, I then explain how a person can be granted asylum (or subsidiary protection) in Austria.

The second part of the book, Setting the scene: the context and circumstances of work at the FAO, presents empirical findings. Chapter three explores the organizational context of refugee status determination with a focus on structure, environment and socialization at the FAO. The chapter addresses topics such as management and control, formal and informal requirements for the job, socialization and the development of routines, the ideal-typical workflow, and the logics of New Public Management (NPM). The next chapter examines the asylum interview as a magnifying glass for key issues such as conflicting norms, power struggles, and actors’ strategies. The analysis of interviews revolves around the implementation of administrative norms and human rights standards and the related clash of logics, power relations in the interaction and differences in actors’ intentions and expectations. Additional focus is placed on the role of interpreters and the importance of the written word in the legal procedure, as exemplified by the interview transcript.

Performing the maneuver: handling four dilemmas in everyday asylum bureaucracy, the third part of the book, continues with the discussion of empirical findings and examines the structural contradictions that characterize public officials’ day-today work. A chapter is dedicated to each of the four identified dilemmas: regulation versus room for maneuver (Chap. 5), definitiveness versus uncertainty (Chap. 6), the human individual versus the faceless case (Chap. 7), and responsibility versus dissociation (Chap. 8). The chapter progression follows the logic of my arguments. First, I argue that caseworkers develop individual strategies and approaches, highlighting the role of the subjective dimension of decision making in the asylum procedure. Thus, chapter five explores the tension between a highly regulated field of action and decision makers’ room for maneuver in implementing the different norms, with a focus on officials’ individual approaches, attitudes and strategies. Second, I hold that decision makers’ practices include the construction of facts, artifacts (in particular, documents) and incredibility; from an organizational perspective, these can be understood as practices that transform informality into formality. The following chapter is therefore dedicated to the fact that a definite decision needs to be made despite the asylum procedure (almost) always being characterized by uncertainty. Third, caseworkers make extensive use of categorization; this not only reduces the complexity of everyday work but also allows them to address both the requirements and consequences of NPM such as efficiency and various pressures. Hence, chapter seven illustrates the dilemma between a focus on the individual or on the “masses” — the human individual versus the faceless case. Fourth, officials show different practices in dissociating and delegating responsibility; officials’ practices of assuming or delegating responsibility are thus explored in chapter eight in combination with the issues of emotions and ethics.

In the last part, Conclusion and prospects: theorizing public officials’ practices and practical ways ahead, I first explore how street-level bureaucracy and organizational theories and the theoretical perspectives of structuration and praxeology help explain social practices at the FAO. Finally, I argue that more attention needs to be paid to ethics in public administration and in the context of international protection. Thus, the final chapter discusses practical implications for handling the structural dilemmas and possible ways to improve the asylum procedure. Bringing the book to a conclusion, I call for a stronger focus on procedural justice and decision makers’ ethical competence. The book closes with a short outlook on future research avenues.

1.1 The Decision-Making Context: The Confusion Over Asylum and Immigration Control

Since the late 1980s, asylum has increasingly been “treated as an immigration rather than a humanitarian issue” (Morris 2002:23); it “is now deemed a vector of immigration” (Kobelinsky 2015:87). Whereas certain scholars agree that asylum should be considered a form of migration and that refugees! can therefore be conflated with other immigrants, other scholars contend that voluntary and forced migration should not be confounded. There is a trend to discuss “asylum migration” (Böcker and Havinga 1998; Borjas and Crisp 2005; Castles and Loughna 2005; Koser and Van Hear 2005; Keogh 2013; Barthel and Neumayer 2015); similarly, the notion of “the migration-asylum nexus” has been established in academia (Borjas and Crisp 2005; Castles 2007; Mingot and de Arimateia da Cruz 2013). Although these approaches address the blurring of voluntary and forced or economic and political migration, they also seem to partly contribute to it.

Several authors suggest that traditional distinctions are no longer valid in the contemporary world. Castles (2007:39) argues that “complex and ongoing emergencies may cause people to move between migration categories.” Although “the distinction between migrant and refugee [is] in some sense the whole point of the Convention” (Gibney and Hansen 2005:92), Westra et al. (2015:2), along with other scholars, argue that the Geneva Convention and its Protocol are “totally inadequate to deal with both the quantity and the quality of asylum seekers” for a number of different reasons. Today, asylum claimants’ suffering is often not the result of direct, deliberate persecution; instead, the causes of flight include internal conflicts, the impact of the Western industries on the global climate and “macroeconomic operations” (ibid:3) in the global South.

While the distinctions between migrants and refugees in principle relies on the presence of a coercive element in the movement of the latter, the reality is often far more ambiguous. Increasingly, there are overlaps and complex dynamics at play in identifying the “voluntary” or “forced” nature of human mobility (Tiirk 2013: xii).

According to Brochmann (1999a:2), “the traditional distinctions between ‘economic’ and ‘political’ migrants became increasingly problematic in the 1980s and the 1990s.” The two concepts, which had previously been separate, merged with the fusion of the concepts in the public and political spheres (Gibney and Hansen 2005). This intermingling went hand in hand with the politicization of asylum and a proliferation of policy reforms in this regard as asylum applications were sharply increasing and states started to aim to prevent, deter and limit the number of asylum seekers.

'The law differentiates among asylum claimants (those seeking protection), recognized refugees (those granted protection) and other categories (such as subsidiary protection and humanitarian grounds). From a more philosophical point of view, those seeking protection may of course also be regarded as refugees, defined as individuals fleeing their countries of origin for reasons such as wars or persecution.

1.1 The Decision-Making Context: The Confusion Over Asylum and Immigration... 9

The events of the late 1980s and early 1990s - the fall of the Iron Curtain and the war in the former Yugoslavia — led to increased numbers of immigrants and refugees and thus constituted a significant marker for a more restrictive asylum policy. Immigration regulations started to become closely linked to asylum, and the latter was often used synonymously for irregular migration (Kraler 2011). Today, asylum is still often constructed as a “threat” or a “problem” that can be solved with increased restriction or control (Squire 2009; Jubany 2017). Although the framing of asylum as a security or criminal “threat” is used to legitimize the extension of restrictions (Huysmans 2006; van Munster 2009), it can be argued that many of the “problems” associated with asylum are actually “produced or aggravated by restrictive controls” (Squire 2009:9-10).

To formulate and implement immigration control policies that correspond to normative obligations, while at the same time taking care of the “interest of the state” — all within a context of uncertain prognoses and insufficient information — may be said to constitute the current major dilemma of European governments (Brochmann 1999a:4).

Current developments in Europe demonstrate that almost 20 years later, the above observation still holds true. Refugee protection belongs to the field of human rights, but it has increasingly become an issue of border control, discarding the right to seek protection (Brochmann 1999b:312). The mechanisms of immigration control, that is, “the rules and procedures governing the selection, admission and deportation of foreign citizens,’ (Brochmann 1999a:9) can be understood as “mundane practices of exclusion” by which “states enact violence” (Walia 2013:5). Today, seeking asylum has become one of the few ways through which so-called third country nationals can legally enter an EU country. Hence, a critical gap can be observed between the importance of asylum as a means of protection for refugees when it was established more than six decades ago and the role of the concept today as an instrument allowing entry to a territory for a selected few, thereby functioning as a tool for collective exclusion. Additionally, the exclusionary politics of asylum have “become both discursively sedimented and institutionally embedded at the political, popular, public, and technical levels” (Squire 2009:185).