Informing for the sake of it: legal intricacies, acceleration and suspicion in the German and Swiss migration regimes

Abstract

In migration law, being informed about legal and administrative procedures constitutes an essential procedural safeguard. Yet, in practice, the transparency of legal practices is often structurally undermined, resulting in the curtailment of procedural safeguards and potentially affecting perceptions of procedural justice. Building on our multi-sited ethnographic research in Germany and Switzerland, we first argue that migrants find it often difficult to anticipate how laws work, contradicting the key procedural law principle of legal certainty. Second, a general trend towards acceleration in migration administration allows limited time for information to reach migrants on the ground, leaving them uninformed about legal procedures. Third, migration law is implemented in an atmosphere of suspicion, which has a negative impact on trust between migrants and state officials -and on transparency. We thus demonstrate how procedural safeguards become empty and routinised, aggravating the structural violence at the heart of the distinction between citizens and non-citizens in interactions with the state.

Post‐2015 refugees in Germany: “Culture of welcome”, solidarity or exclusion?

“…Yet the legal certainty in theory often fails to turn into reality. Recent literature focusing on the rights claims of post‐2015 refugees has revealed the discriminatory and discretionary bureaucratic practices in the processes of asylum determination (Schittenhelm & Schneider, 2017; Schneider et al, 2020) as well as the shadow of suspicion that reigns over the assessments (Borelli & Wyss, 2022) that ultimately render these decisions illegible to migrants. These bureaucratic encounters are afflicted by the strict distinction, and the “changing of tracks” remains an anomaly in the German context, even though exceptions happen in specific hardship cases ( Härtefallkommission ) and at times in the least expected spaces such as administrative courts (see Vetters, 2022 on the latter).…”

The making of procedural justice: enacting the state and (non)citizenship

“…They also further stress the fragmentation of the category of noncitizenship by the creation of 'vulnerability' as a concept that offers protection and assistance to those select few who fulfil the criteria to be deemed 'vulnerable' in these interactions. Borrelli and Wyss (2022), on the other hand, build on multisited fieldwork in Germany and Switzerland to demonstrate how, for migrants who have a precarious legal status, interactions with street-level bureaucrats are characterized by pervasive suspicion, legal uncertainty resulting from frequent legislative changes, and an emphasis on accelerated procedures. These structural conditions create a highly asymmetrical terrain for migrants' rights claims in bureaucratic encounters and can inhibit acts of citizenship tout court, despite existing procedural safeguards, which instead aggravate the structural violence inherent in citizenship as a status.…”

“…The articles by Borrelli and Wyss, van den Bogaard et al, and Andreetta Nakueira are much-needed empirical illustrations of the evolving and ambivalent role of procedural law and procedural safeguards in migration governance. Borrelli and Wyss (2022) are most centrally concerned with the gap between legally enshrined procedural rights and their implementation in administrative procedures concerning migrants. They contend that the nature of the multi-level European regulatory space itself, in which there are frequent legislative changes at various levels and a multiplicity of actors working from within or for the state, generates a degree of illegibility and legal uncertainty for noncitizens.…”

“…For instance, Johannesson (2022) skilfully shows how judges' commitment to and interpretation of procedural justice principles perpetuate structural injustices and impede the extension of substantive rights to noncitizens. Borrelli and Wyss (2022) argue that bypassing procedural safeguards or merely paying lip service to them due to discretionary implementation may also result in restrictions of substantive rights for persons with precarious legal status. Along the same lines, Gornik (2022) highlights how the Slovenian children rights regime -which includes strong procedural safeguards with the potential to open up space for unaccompanied minor asylum seekers to claim and negotiate substantive rights (to asylum and residence) -is in everyday interactions filled with state actor practices geared towards migration control.…”