Power in Vulnerability: A Multi-Dimensional Review of Migrants’ Vulnerabilities (Studien zur Migrations- und Integrationspolitik) 3658340517, 9783658340513

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Studien zur Migrations- und Integrationspolitik

Nicolas Fromm · Annette Jünemann Hamza Safouane Editors

Power in Vulnerability A Multi-Dimensional Review of Migrants’ Vulnerabilities

Studien zur Migrations- und Integrationspolitik Series Editors Danielle Gluns, Universität Hildesheim, Hildesheim, Germany Uwe Hunger, Sozial- und Kulturwissenschaften, Hochschule Fulda, Fulda, Hessen, Germany Roswitha Pioch, Fachhochschule Kiel, Kiel, Germany Stefan Rother, Universität Freiburg, Freiburg, Germany

Migration ist eines der zentralen Globalisierungsphänomene des 21. Jahrhunderts. Entsprechend groß ist das Interesse an Fragen der politischen Regulierung und Gestaltung der weltweiten Migration, den Rechten von Migrantinnen und Migranten und der Integration von der lokalen bis zur globalen Ebene. Die Buchreihe ist interdisziplinär ausgerichtet und umfasst Monographien und Sammelwerke, die sich theoretisch und empirisch mit den Inhalten, Strukturen und Prozessen lokaler, regionaler, nationaler und internationaler Migrations- und Integrationspolitik befassen. Sie richtet sich an Wissenschaftlerinnen und Wissenschaftler, Studierende der Geistes-, Sozial-, Wirtschafts- und Rechtswissenschaften sowie an Praktikerinnen und Praktiker aus Medien, Politik und Bildung. Die Herausgeberinnen und Herausgeber werden in ihrer Arbeit durch einen wissenschaftlichen Beirat unterstützt, den die ehemaligen Sprecherinnen und Sprecher des Arbeitskreises bilden: Prof. Dr. Sigrid Baringhorst, Universität Siegen, Prof. Dr. Thomas Faist, Universität Bielefeld, Prof. Dr. Karen Schönwälder, Max-Planck-Institut zur Erforschung multireligiöser und multi-ethnischer Gesellschaften, Göttingen, Apl. Prof. Dr. Axel Schulte i.R., Leibniz Universität Hannover, Prof. em. Dr. Dietrich Thränhardt, Universität Münster.

More information about this series at http://www.springer.com/series/13088

Nicolas Fromm · Annette Jünemann · Hamza Safouane Editors

Power in Vulnerability A Multi-Dimensional Review of Migrants’ Vulnerabilities

Editors Nicolas Fromm Institute for International Politics Helmut Schmidt University, University of the Federal Armed Forces Hamburg, Germany

Annette Jünemann Institute for International Politics Helmut Schmidt University, University of the Federal Armed Forces Hamburg, Germany

Hamza Safouane IMIS, Universität Osnabrück Osnabrück, Germany

ISSN 2567-3076 ISSN 2567-3157 (electronic) Studien zur Migrations- und Integrationspolitik ISBN 978-3-658-34051-3 ISBN 978-3-658-34052-0 (eBook) https://doi.org/10.1007/978-3-658-34052-0 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2021 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Responsible Editor: Jan Treibel This Springer VS imprint is published by the registered company Springer Fachmedien Wiesbaden GmbH part of Springer Nature. The registered company address is: Abraham-Lincoln-Str. 46, 65189 Wiesbaden, Germany

Contents

Theoretical Framing of this Volume The Accumulation of Vulnerability Aspects in the Figure of the Migrant: A Theoretical Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sandra Göttsche

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Migrants’ Vulnerabilities and the Practices of Migration Regulation Vulnerable by Category: A Critical Assessment of Constructions of Vulnerability in International Refugee Law . . . . . . . . . . . . . . . . . . . . . . . Parastou Hassouri

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Whose Vulnerability? EU Identity Formation Processes and the Risks of Migration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Julia Simon

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Voices from Liminality: Civil Society Search and Rescue Organisations as Agents of Migration De-Securitisation . . . . . . . . . . . . . . Benedikt Funke

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Vulnerabilisation of Specific Migrant Communities Through Dysfunctional Protection A Claim for Agency: From Guest to Host in Jordan’s Refugee Camps—Notes from the Field . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Miriam Müller-Rensch and Hamza Safouane

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When Law Exacerbates Vulnerability: The Case of Undocumented Migrant Prostitutes Under the German Prostitutes Protection Act of 2017 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Yaiza Rojas-Matas Germany, a Gay H(E)aven? Heteronormativity in LGBTIQ + Asylum Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Robert Menzies and Jonas Nawrath

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Persisting Vulnerabilities in Reception Societies: Cases from Germany Vulnerabilisation of Refugees: Covid-19—Related Experiences from Accommodation Centres in Germany . . . . . . . . . . . . . . . . . . . . . . . . . Verena Penning, Yudit Namer and Oliver Razum Educational Inequalities, Vulnerability for Discrimination and the Politics of School Change in Germany as a Post-migration Society . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mechtild Gomolla “They Are Stumbling Around Quite Helplessly”: How Supporters of Refugee Families Frame Vulnerability and Agency Relating to Childcare . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Anna Siede Vulnerability and Agency in the Asymmetric Relationship Between Refugees and Their Volunteer Supporters: A Critical Assessment of Germany’s ‘Welcome Culture’ . . . . . . . . . . . . . . . . . . . . . . . Annette Jünemann, Sandra Göttsche and Yaiza Rojas-Matas

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Epilogue A Case for Dark Horse Thinking? Re-Imagining Group Asylum . . . . . . Hamza Safouane, Nicolas Fromm and Sabith Khan

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Contributors

Dr. Nicolas Fromm, Helmut Schmidt University Nicolas Fromm is a postdoctoral researcher at the Institute of International Relations at Helmut Schmidt University, University of the Federal Armed Forces in Hamburg. His research focuses on the Mediterranean region and on the international role of small states with a special interest in the Arab Gulf states. Currently, he is working on an interdisciplinary explorative project to conceptualise innovation in the field of International Relations. Nicolas Fromm holds a PhD in International Relations from Helmut Schmidt University and has worked as a political consultant. In 2018/2019, he was Visiting Professor for International Relations at Leuphana University Lüneburg. Benedikt Funke, Deutsches Museum Benedikt Funke is a research associate in the shipping department of the Deutsches Museum in Munich. In his work, he focuses on maritime migration, humanitarian search and rescue and the connected discourses. He is a graduate of the Master in Peace & Security Studies at the University of Hamburg and an Industrial Engineer for Maritime Transport. He has a commercial shipping background as well as extensive experience on board ships of different search and rescue NGOs. Prof. Dr. Mechtild Gomolla, Helmut Schmidt University Mechtild Gomolla is a lecturer and researcher in Intercultural and Comparative Education at Helmut Schmidt University, University of the Federal Armed Forces Hamburg. Her theoretical and empirical research focuses on the following topics: educational inequality; racism and institutional discrimination in society and (educational) institutions; education politics and education reform; (welfare) state transformations, transnationalisation of educational governance and dynamics of

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participation and exclusion in post-migration societies; social justice-oriented and discrimination-critical professionalisation and institutional development of schools and other educational organisations. Sandra Göttsche, Helmut Schmidt University Sandra Göttsche is a researcher and PhD candidate at Helmut Schmidt University, University of the Federal Armed Forces in Hamburg. In her dissertation, she is working on refugees’ vulnerabilities and their potential effects. She is focusing on interactions between socio-economic marginalisation, (religious) discrimination and Islamist radicalisation of refugees. Sandra Göttsche has an interdisciplinary background with extensive field experience and holds an M.A. in Peace and Security Studies, Middle Eastern Studies and Politics from the University of Hamburg. Parastou Hassouri, Independent Researcher Parastou Hassouri is an independent researcher and consultant on international refugee law and migration policy. She has worked with the UNHCR in their offices in Turkey, Jordan, and Morocco, as well as with NGOs specialised in refugee legal aid. She regularly teaches courses on international refugee law at the American University in Cairo, and has been based in Egypt since 2005. Prior to moving to Egypt, she worked in the field of immigration law in the United States, with the Immigrant Rights Project of the American Civil Liberties Union of New Jersey, as an attorney advisor at the immigration courts of Los Angeles and New York City and in private practice. Prof. Dr. Annette Jünemann, Helmut Schmidt University Annette Jünemann teaches International Relations with particular emphasis on EU foreign affairs at Helmut Schmidt University, University of the Federal Armed Forces in Hamburg. Her regional focus lies on the Mediterranean, the Middle East, and North Africa. She works on Euro-Mediterranean relations, restoration, transformation, and democratisation in the MENA region, gender relations, the (external) promotion of democracy as well as flight and migration. Both the critical analysis of the European asylum regime as well as correlations with regional and local dynamics of flight and migration are central to her research. Dr. Sabith Khan, California Lutheran University Sabith Khan is director and assistant professor for the Master of Public Policy and Administration (MPPA) program at California Lutheran University. His primary research focus is in American philanthropy, civil society, international development, religion and culture. Currently, he is working on the role of nonprofits in refugee resettlement in the US as well as migrants’ remittances practices. He is

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an active member of the Association for Research on Nonprofit Organizations and Voluntary Action (ARNOVA) and the American Society for Public Administration (ASPA). Sabith Khan earned his PhD in Planning, Governance and Globalization (PGG) from Virginia Tech. Robert Menzies, International Organisation of Migration Robert Menzies holds an M.A. in Peace and Security Studies from the University of Hamburg, having previously graduated in law and politics at the University of Glasgow with a LLB. He currently works for the International Organisation of Migration in Germany. Previously, Robert Menzies researched at the UN University Centre for Regional Integration Studies and consulted for the UN Office for the Coordination of Humanitarian Affairs. His research focuses include forced migration, intersectionality and international protection regimes as well as humanitarian action. Prof. Dr. Miriam Müller-Rensch, University of Applied Sciences Erfurt Miriam Müller-Rensch is Professor for Sociology and International Inequality at the University of Applied Sciences of Erfurt, Germany, where she also acts as Director of the Research Center on Radicalization and Violent Conflict. Her expertise lies with history, politics and the societies of the Middle East and their relations with “the West” (NATO & EU). Her current research project with the Max Planck Institute of Social Anthropology is on “Daesh’s (ISIS) alternative mode of governance in Iraq and Syria”. It combines perspectives of rebel governance and critical terrorism studies with an emphasis on the role of ideologies, religion and identities. She holds a Joint PhD in Political Science, International Relations and Middle Eastern Studies from the Free University of Berlin and the University of Victoria, Canada. Dr. Yudit Namer, Bielefeld University Yudit Namer is a clinical psychologist, psychotherapist and researcher in public mental health. She holds a PhD in Clinical Psychology from Bo˘gaziçi University, Istanbul, Turkey. She currently works as a project leader at the School of Public Health, Department of Epidemiology and International Public Health, Bielefeld University, investigating the mental health care access of minor refugees in Germany. She also co-leads a project on the health care for marginalised groups as an indicator of social cohesion at the Research Institute of Social Cohesion. Her current research focuses on relational justice in research as well as queer health. Jonas Nawrath, German Navy Jonas Nawrath is a Navy lieutenant and an International Studies graduate from Helmut Schmidt University, University of the Federal Armed Forces. During

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his studies he worked as a student assistant at the chair of International Security and Conflict Studies. His academic interests include migration, radicalisation and gender-related topics in International Relations with special emphasis on the Middle East. In his current post as Surface Warfare Officer in the 1st Corvette Squadron, his deployments focus on the eastern Mediterranean as part of the UN peacekeeping mission UNIFIL. Verena Penning, Bielefeld University Verena Penning is a research associate and doctoral student at the School of Public Health, Department of Epidemiology and International Public Health, Bielefeld University. She initially studied physiotherapy in the Netherlands (BSc.) and then obtained a Master’s degree in Public Health with the additional degree “European Public Health” from Bielefeld University in 2019. Since 2020 she is a member of a research group working on contextual effects on health and health system challenges of marginalised groups. Her research focuses on the context of refugee accommodation and its impact on health. Prof. Dr. Oliver Razum, Bielefeld University Oliver Razum is Dean of the School of Public Health at Bielefeld University, Germany. He is also full Professor and heads the Department of Epidemiology and International Public Health at Bielefeld University. Medical doctor by training, he holds a doctoral degree from Heidelberg University and a MSc degree in Epidemiology from the London School of Hygiene and Tropical Medicine. His ongoing research projects centre on migrant and refugee health, social inequalities in health, global health, and health care for minority groups. Yaiza Rojas-Matas, Helmut Schmidt University Yaiza Rojas-Matas is a research assistant at Helmut Schmidt University and teaches courses on migration and forced migration with a gender perspective. Her doctoral project on “Human Trafficking in Women in the context of Forced Migration and Migration” is based on her research as well as on her practical work in the support of victims of human trafficking in Hamburg. She also works in the support of refugees and migrants in the context of labour exploitation and the promotion of labor rights. Dr. Hamza Safouane, Osnabrück University Hamza Safouane is a postdoctoral research fellow at the Institute for Migration Research and Intercultural Studies (IMIS) at Osnabrück University where he is part of the TRANSMIT research project (Transnational Perspectives on Migration and Integration) on the transnational interactions of migration experiences in countries of origin, transit and destination. Hamza Safouane is also affiliated

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with the Helmut Schmidt University where he focuses on migration across the Euro-Mediterranean region. Anna Siede, Leuphana University Lüneburg Anna Siede is a researcher and PhD student at Leuphana University Lüneburg. She is working on the multidisciplinary research project “Integration through Trust”, which sets out to examine how refugee parents of young children in Germany build trust in childcare services. In this context, Anna Siede researches the role of civil society and municipal integration policy with regard to refugee families’ access to childcare. Before starting at Leuphana University, she worked as a policy consultant at Deloitte for several years, carrying out policy evaluation studies on behalf of public institutions, including the European Commission and the German Federal Office for Migration and Refugees. Anna Siede has a multidisciplinary background with a focus on political and social sciences and law. Dr. Julia Simon, Helmut Schmidt University Julia Simon works as a postdoctoral researcher at Helmut Schmidt University in Hamburg. She studied political science, media science and cultural anthropology at Trier University and at Hawai‘i Pacific University and held a PhD scholarship of the German National Academic Foundation. Collective identities and the EU have been her main fields of interest. She has published on EU relations with the Southern Mediterranean neighbours and has applied—in her dissertation—a discourse-analytical approach to the EUropean discourse on migration to study the subject and identity formation processes of an EU Self in the context of migration and of growing tendencies of EU disintegration.

Prologue

Rethinking Migration Governance from the Perspective of Migrants’ Vulnerabilities1 : An Introduction to the Struture of this Volume All human beings are vulnerable. In some situations, their life and wellbeing turn out to be fragile and damageable, which can lead to distress and sorrow. Therefore, negative connotations are often attached to the concept of vulnerability, treating it as a weakness that must be corrected. Societies have strived to continuously introduce new laws, practices, as well as technical and scientific achievements to overcome or mitigate those unwanted effects. Thereby societies show the teleological dimension of the piecewise offsetting of actual or potential physical, psychological, socio-economic, or political vulnerabilities. The overcoming of potential or actual injuries which have been produced by nature, human behaviour, or social living conditions is political. Individuals or groups of individuals may either perceive themselves as being a victim and then appeal to those responsible for mitigating their vulnerabilities, or they could be reluctantly labelled as victims by society and its institutions, and thus possibly not receive the necessary assistance. In order to set the conceptual context for such politicised reading of vulnerability, we draw on Sandra Göttsche’s theoretical introduction to this volume. We understand the term as an anthropological category and therefore argue not to bluntly invalidate it but to approach it as an indispensable counterpart to empowerment, resilience and recognition. Without a deeper and more nuanced 1

The editors wish to thank Yaiza Rojas-Matas for her extensive support on this project. We are very grateful for the stimulating exchange and inspiration throughout the process of conceptualisation and realisation of this volume. We also owe gratitude to the editors of the series Studien zur Migrations- und Integrationspolitik for their critical review of the manuscript. xiii

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understanding of vulnerability it is not possible to discuss empowerment or resilience in a meaningful and critical way. Instead, addressing vulnerability requires facing, acknowledging, and admitting vulnerability itself and preserving the vulnerable. Our approach does not simply refer to the status quo but also alludes to the—oftentimes hidden—bases for the current observable situation. Most importantly, it puts special emphasis on the ways vulnerable individuals choose to cope with this situation. Accordingly, we want to stress the power in vulnerability that emerges from the potential for action that is already implied in the concept. Vulnerability is not to be confused with the experience of being injured, damaged or victimised. Rather, vulnerability refers to the possibility of becoming injured, damaged, or victimised. Acquiring knowledge about potential injuries, e.g., through a conscious confrontation with (one’s own and others’) vulnerabilities, can even be considered as a prerequisite to empowerment and resilience. Consequently, vulnerability has to be seen in the specific individual or collective context of the individual (or group of individuals) concerned. The (axiomatic) proposition that every human being is to some extent vulnerable is not complete if we do not factor inequality in the face of vulnerability. Often due to political and social interests as well as power structures, some groups can be considered as being more exposed to vulnerabilities than others. In the case of irregular and forced migrants, they are vulnerable at any stage of the migratory process, as they move across numerous countries, legal frameworks and statuses, endure immobilisation and experience violence and life-threatening dangers. Even upon arrival, migrants and their communities must deal with all kinds of vulnerabilities, often linked to a precarious legal status, prejudice, and racism. Additionally, the lack of certain resources such as language skills, financial independence, knowledge about the reception context or access to social networks increase their exposition to vulnerabilities. These vulnerabilities may change over time for better or worse, corresponding with a persons’ legal status and changing institutional constraints. That being said, the presence of the many and very specific vulnerable conditions makes migrants unequal to citizens living within the same community. In this context, it is important to note that the asylum-recognition process is strongly connected to experiences of vulnerability among migrants: Whenever migrants apply for asylum, they are dependent on authorities perceiving them as highly vulnerable2 , being either victim of political or religious persecution, or belonging to a specific social group that has endured discrimination and torture 2

Conversely, authorities can also perceive them as suspicious “bogus asylum seekers” whose vulnerability may be feigned and must be consequently ignored.

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in the respective country of origin. This victimising approach, however, can be detrimental to the agency of migrants as vocal and conscious subjects of their migratory journey. Through our multi-dimensional review of migrants’ vulnerabilities, this book aims to provide a deeper and more nuanced understanding of forced and irregular migration with a determined focus on migrants’ experiences and struggles. The aim of this edited volume is to address the following questions: How do we define vulnerability in relation to practices of migration regulation? How do migrants cope with their own vulnerabilities? What power structures produce and/or exacerbate migrants’ vulnerabilities? What solutions can be formulated to address the different vulnerabilities appropriately? How can reception societies be better equipped to acknowledge and react to migrants’ vulnerabilities? In order to find some substantial answers to these questions, we propose a fourfold structure: In the first part of this book, Sandra Göttsche provides the theoretical framing for this volume, discussing migrants as political and vulnerable figures. She reminds us that migrants—individually and collectively—not only act in order to escape from their vulnerable position but are also looking to improve their situation, which makes them political agents of the surrounding society. Göttsche highlights the importance of several specific vulnerant factors in the assessment of migrant vulnerabilities, which serve as a basic conceptual structure for all book chapters. In the second part, three chapters tackle the issue of systemic constraints through the practices of international migration regulation, each of them focusing on specific aspects of vulnerability: Parastou Hassouri shows how migrants are made “Vulnerable by Category”, providing a critical assessment of central legal notions that bring about manifold occasions for the emergence of vulnerabilities among migrants. Julia Simon describes in her contribution how powerful narratives from within the EU aimed at consolidating the power base of EU administrative structures, have contributed to exposing incoming migrants to all sorts of vulnerabilities. Benedict Funke focuses on a particularly detrimental outcome of a European migration management policy that seems to be blind to migrants’ vulnerabilities, the defective system of rescue in the Mediterranean Sea. The third part of the book focuses on the possible adverse effects of the refugee regime and explores how an inadequate provision of international protection can lead to the vulnerabilisation of the groups that it seeks to keep safe. Miriam Müller-Rensch and Hamza Safouane offer a field report on their encounters with refugees in the Azraq camp in Jordan. They show how the spatial layout of the camp provides physical safety while also limiting residents’ capacity for community building and resumption of normalcy. Nevertheless, there are still spaces

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of negotiation that help refugees mitigate their vulnerability. This section also includes Yaiza Rojas-Matas’ reflections on how prostitution regulation policies put in place in Germany have had unfavourable effects on the vulnerability of undocumented migrant sex workers, especially with regard to their exposure to the risk of falling victim to human trafficking networks. Robert Menzies and Jonas Nawrath complete this part with their analysis of heteronormative violence against LGBTQ* asylum seekers in Germany, that leads to specific vulnerabilities to epistemic violence throughout the process of application for asylum. The fourth part discusses the difficulty to overcome vulnerabilisation of forced and irregular migrants and how mechanisms put in place for this purpose are more or less efficient. The chapters explicitly cover the situation of arrival and the necessities for adaptation in reception societies such as Germany. Verena Penning, Yudit Namer and Oliver Razum share their observations from accommodation centres in Germany and draw an alarming picture of extensive vulnerabilisation of refugees. Mechtild Gomolla gives insights into the German educational system, underlining the need for adaptation to the new challenges in a post-migration society. Anna Siede investigates integration through trust in her analysis of public care arrangements for young children of migrant families. The ambiguities of networks of support for refugees are highlighted by Annette Jünemann, Sandra Göttsche and Yaiza Rojas-Matas: their study reveals a highly complex mosaic of support structures, potentially providing both empathy and encroachment. In the epilogue, Hamza Safouane, Nicolas Fromm and Sabith Khan provide a utopian approach in the form of a radical alternative to the current processes of international migration management, whose pitfalls and severe flaws were highlighted throughout the chapters of this book. The authors propose an innovative redesign of the regime of international protection in order to grant refugees effective access to the much-needed protection space. Even though all authors share the broad understanding of vulnerability as defined by Sandra Göttsche in the first part of this book, we would like to clarify that the views represented in the different chapters of this book are the respective authors’ only. Given the crucial importance of context factors for the evaluation and analysis of vulnerabilities, the texts have been chosen to display a wide variety of elements which might at times produce competing conclusions. This effect is fully intended because it highlights the complexity of the issue at hand and points out the importance to consider manifold context factors when assessing migrants’ vulnerabilities and the measures intended to deal with them. In this vein, we hope that “Power in Vulnerability” will offer new insights and food for thought both for practitioners and scholars engaged in analysing or putting into practice the international migration and asylum management regime. Our resolute focus on

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migrants’ vulnerabilities provides a straightforward perspective of analysis that we deem appropriate and most helpful in order to address the pressing concerns with view to migrants’ safety and wellbeing. Only by acknowledging and accepting migrants’ vulnerabilities as they can be observed throughout their journey will the concerned authorities and bodies find durable and effective solutions to the multi-faceted challenges reception societies unavoidably have to face. Our approach also brings with it the seed for overcoming cultural differences or fear of the Other: If all human beings are vulnerable, albeit not equally, is this fundamental trait not a good place to start understanding and acknowledging each other? Hamburg May 2021

Nicolas Fromm Hamza Safouane Annette Jünemann

Part I Theoretical Framing of this Volume

The Accumulation of Vulnerability Aspects in the Figure of the Migrant: A Theoretical Approach Sandra Göttsche

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Introduction

All human beings are vulnerable; they can suffer both psychological and physical injuries. As Emmanuel Lévinas (2005) puts it: ‘The I, from head to foot and to the bone-marrow, is vulnerability’ (Lévinas, 2005, p. 94). Therefore, vulnerability can be understood as an ontological category. However, within the scientific discourses, vulnerability is often understood as something negative, a defect or a weakness that needs to be corrected. It can be problematised under different terms such as violability, suffering, fragility, frailty, finiteness. All these concepts are often perceived as negative, as a lack of something, being broken, being dependent, a defectiveness, or even a weakness that needs to be corrected (Burghardt et al., 2017, p. 8). While for a long time people considered themselves to be dependent on the grace of their god/religion, it was not until the technical inventions and scientific progress roughly from 15th onwards that the previously rigid divine systems of order began to loosen in Europe (Allmand, 2015). This was followed by a rethinking of the existing systems of order which encourages people in their search for technical and scientific achievements (Burghardt et al., 2017, p. 62). Human beings became aware of the fact that they live in a world that can be influenced by their own actions and knowledge. Therefore, they take up measures in order to overcome their own vulnerabilities to remove perceived deficiencies and mistakes and to mitigate their effects. Thus, vulnerability only S. Göttsche (B) Fakultät Für Wirtschafts- Und Sozialwissenschaften Institut Für Internationale Politik, Helmut-Schmidt-Universität, Hamburg, Germany E-Mail: [email protected] © The Author(s), under exclusive license to Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2021 N. Fromm et al. (eds.), Power in Vulnerability, Studien zur Migrations- und Integrationspolitik, https://doi.org/10.1007/978-3-658-34052-0_1

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became an issue of debate for humans in the sixteenth century (Waldenfels, 2006, p. 19). In consequence, the detection of vulnerabilities and the related experiences of suffering, grief, fear and pain, among others became connected with the demand for their elimination. Therefore, many descriptions of vulnerability, like the ones shown above, have a normative dimension in the sense that they characterise vulnerability as something that needs to be overcome. This is also the case in many scientific fields such as ecology, medicine, psychology, educational science, and politics where it is often perceived as something negative1 —as a lack of something, a defectiveness or even a weakness that needs to be corrected. However, although there is a widespread agreement that vulnerability is a risk to be controlled, in each one of these fields, vulnerability acquires slightly different connotations. Many debates focus on resistance to fragilities, on ways of restoring the conditions or the adaptability of individuals, groups, societies, systems, or institutions to develop strategies or preventive measures (Birkmann et al., 2013, p. 4). In contrast to these perceptions, theology2 and philosophy3 understand vulnerability as something that can be neutral or even positive. In both disciplines it is often understood as a unifying element that affects all humanity. Within the theological discourse, a revision has taken place: as in former times, vulnerability used to be seen as a punishment for transgressing against a religious dogma (ESWTR, 2014, p. 1). However, within today’s theological debates, 1

Within ecological research the concept of vulnerability is often used within climate research, as well as the architectural-technical environment—mainly to find preventive measures to cope with them (See Parry et all., 2007). In medicine, vulnerability refers to the sensitivity of nerves and vessels and also serves as a construct with which individual dispositions leading to diseases can be identified (this understanding also applies to psychology) (See Franke, 2012). The field of educational science is using the term vulnerability in different contexts to identify specific forms of risk in learning and teaching processes (Edelstein, 1996). The vulnerability concept within politics is mainly used in different security policy contexts regarding questions of risks to society and institutions (See Münkler and Wassermann, 2012). But the concept of vulnerability is increasingly influencing other threats, such as terrorism, international crime, war, etc. 2 Within (Christian) theology the discourse on vulnerability is quite young. While for a long time theology’s focus was on the wounds suffered, it is now extended to vulnerability (See Keul, 2014). The unifying element of vulnerability is moving further into the centre of the debates and is becoming existential (See Culp, 2010). 3 Since the beginning of the twentieth century there has been a systematic examination of vulnerability within philosophy. Here, vulnerability becomes especially important in the context of ethics (See Schofer, 2010). Moreover, vulnerability is a constant in the context of debating human rights, where it is seen as a basic condition that unites all people (See Turner, 2006). Furthermore, human vulnerability is considered in connection with existential dependence (See Butler, 2005).

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social and individual vulnerability is seen as a prerequisite for peace and understanding, as a prerequisite for compassion and empathy, and is thus raised as an explicitly desirable characteristic. In both disciplines vulnerability is nowadays often placed as an existential factor in the centre of their considerations, without necessarily insisting on overcoming it. Here vulnerability is recognised as important for all life and learning processes, and as important for the success of any kind of relationship (Keul, 2015, p. 43). First, this article begins with a brief definition of the concept of vulnerability (2), which is followed by taking this other side into account (3). It gives us the opportunity to perceive vulnerability as possibility (4) and ask for aspects and effects of specific vulnerabilities, which then can be considered when talking about common discourses regarding preventive measures and strategies. In the following section, the article examines the specific vulnerability aspects (5) that make human vulnerability especially significant. Referring to Burghardt et al.’s, four aspects of vulnerability—sociality, culturality, corporality and liminality—are considered. These four aspects are to be complemented by a further aspect, that of structurality. As vulnerability is not only due to ontological factors, but also to a large extent to structures that can have different effects even within one community. Next, this article addresses the question that even though all human beings are vulnerable some individuals or groups seem to be ‘more vulnerable’4 than others due to the context in which they find themselves (6). Finally, many aspects of the concept of vulnerability reference situations that are common in migration experiences, as migrants find themselves in contexts that exacerbate their vulnerability. Therefore, I focus on the application of the concept of vulnerability to migration as a relevant international issue, before drawing a conclusion in the final Sect. (7). I plead neither for a purely positive nor negative vulnerability approach, but rather recognise vulnerabilities as such. In other words, to recognise vulnerabilities as a part of life is to recognise vulnerabilities not only as problematic but also as possibilities. One can also understand them as the other side of empowerment, resilience, recognition, and agency. This becomes particularly clear in binary political and media discourses on the topic of migration. On the one hand, migrants are often discussed in connection with collective symbols such as the unstoppable flood, wave, or invasion, picturing them as a threat and thereby denying their vulnerabilities. On the other hand, the perception of migrants, especially refugees,5 4

Vulnerability, as such, cannot be measured in this concept, whereas vulnerant factors can. The term is used in this context to express the hierarchisation that is taking place. 5 According to the Geneva Convention on Refugees, a refugee is a person who is outside the country of origin of which he or she is a national or in which he or she has been living as

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as ‘the weakest of the weak’, essentialises people to their vulnerabilities. Hence, many measures taken by current governments in order to improve the situation of migrants become meaningless or even detrimental when the complexity of migrants’ vulnerability is not fully taken into account.

2

Defining a Vulnerability Concept

The vulnerability concept used here is defined by two main factors: the element of possibility and the specific context. Vulnerability indicates the susceptibility to a threat. But a threat is not an automatic consequence of vulnerability. Rather, vulnerability points to the possibility of the occurrence of a threat, or the potential that a system, group, society, or institution has of being harmed by it. It is this ‘element of possibility’ that represents the connecting element between the different views of vulnerability within scientific disciplines. Vulnerability not only reveals potential harm, but also uncovers adaptation and coping strategies. Therefore, vulnerabilities must always be seen and analysed in the specific context in which they emerge and are identified. The context in which a vulnerability emerges and the position of the vulnerable subject within this context matter greatly. Here, the concept of social context is understood from a power/ knowledge perspective, i.e., the political, economic, historical, and cultural factors that establish a regime of power/knowledge at a given time within a given society (Foucault, 1980, p. 270). This means that human vulnerability is also dependent on certain role models, such as traditions, religions, and the political system. Therefore, it is about what can be knowingly considered vulnerable under specific historical and cultural circumstances. Additionally, it is about the summarisation of those specific circumstances and events that brings human vulnerabilities to light. It is therefore a matter of concrete individual or collective experiences of vulnerability in physical, psychological, and social terms. Nevertheless, all people are vulnerable beings; they can suffer from physical or psychological injuries and they develop specific characteristics, qualities, strategies, and skills, which aim to correct, minimise, or eliminate their vulnerabilities. Paradoxically, trying to correct vulnerabilities often produces new vulnerabilities (e.g., regarding the accommodation of migrants which is supposed to provide protection) and the correlation between the often high occupancy rates and the lack of security for women and a stateless person and is unable or, owing to fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is unable or, owing to fear of being persecuted, is unwilling to avail himself or herself of the protection of that country (See UNHCR, 2020).

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children who are exposed to a high risk of domestic violence (Cremer, 2014, p. 7; FAZIT, 2016, p. 18; Christ et al., 2017, p. 31). The example of domestic violence leads to another point, that human beings are not just vulnerable by possessing the passive quality of being wounded but can also possess the active quality of harming somebody (Burghardt et al., 2017, p. 35). In the course of one’s life, a person is confronted with one’s own passive and active capability repeatedly anew. All human beings embody and feel vulnerability, and, due to this knowledge, are equally capable of harming somebody else.

3

The Other Side:‘Vulnerantality’

Burghardt et al. (2017) introduced the term vulnerantality (Burghardt et al., 2017, p. 12). As opposed to vulnerability, which describes the possibility of being harmed, vulnerantality describes the possibility of inflicting harm. Vulnerant factors act as potentially hurtful/ discriminating, damaging/ defiling, discriminatory, etc. Therefore, vulnerability is always dependent on vulnerant moments or conditions, which could lead to vulnerabilities: ‘Vulnerability appears to be entangled with vulnerantality: One can only perceive oneself as vulnerable, or can be viewed as such, if at the same time it is assumed that there are vulnerant factors, that is, harmful factors that (can) engender vulnerability.’ (Burghardt et al., 2017, p. 12).

Thus, vulnerantality must be considered as a part of vulnerability itself. The distinction between vulnerability and vulnerantality may seem artificial, but it is extremely useful to clearly distinguish between a disposition and the causes and conditional factors for its occurrence. Furthermore, it enables us to propose the causes and the effects of specific vulnerabilities. It also allows addressing the vulnerant factors to question potentially harmful acts or interdependencies. Vulnerant factors and vulnerabilities go hand in hand. Speaking about topics in depth, such as resilience, agency,6 empowerment among others, one needs to supplement those discourses with vulnerability and vulnerantality.

6

Similarly to the relationship between vulnerability and the vulnerant, there is no agency possible without a corresponding vulnerability (See: Safouane et al., 2020).

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Perceiving Vulnerability as a Possibility?

Gaining knowledge about vulnerant factors is the prerequisite for preventing or mitigating potential vulnerabilities. Only by becoming aware of one’s own vulnerability and coming to terms with it, one is able to find answers to these. Through the basic element of reflection, the vulnerable person or group can gain resilience through one’s sensitivity (Bernhard, 2011, p. 270). This process—becoming aware of one’s own vulnerability and acknowledging that of others—enables a person to react to these. As a result, the human being is able to develop qualities, strategies and abilities to cope with one’s vulnerability. These resources include protective devices, rationalisation, implementing laws, recognition, and acceptance, which are intended to minimise one’s own vulnerabilities or to eradicate them completely (Burghardt et al., 2017, p. 35). It follows, it is not sufficient to show whether an individual, a group, or a society is vulnerable, the extent and reason of the vulnerability matter too. Only then is it really possible to implement preventive measures to reduce vulnerant factors. Only then is it truly possible to strengthen one’s coping capacity. Only then is it truly possible to address vulnerabilities politically, and only then is it possible to truly distinguish, which vulnerant factors are politically significant and which are not. Therefore, in this article, vulnerability is not to be understood only as a deficiency, but also as a relational category. Vulnerability inevitably determines discourses around empowerment and resilience. The discourses around these very concepts should rather be complemented by vulnerability. This article pleads for a more comprehensive understanding: to see vulnerability as a possibility, to explore the triggering conditions of vulnerability and thus to be able to counteract them accordingly.

5

Concretisation of Vulnerability Aspects

In the following section, the factors that make human vulnerability especially significant are described. Burghardt et al., (2017) identify four aspects that reflect their anthropological view on vulnerability: sociality, culturality, corporality and liminality. These four aspects are to be complemented by a further aspect, that of structurality. In the following this fifth factor of structurality is added to the Burghardt et al.’s four aspects. While all four aspects of vulnerability show some kind of structure already intertwined, structurality reaches further. Structurality is not only based on a specific modality of social behaviour, but it also relies on permanent relationships of dependence and subjection (Werkner, 2017, p. 8).

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The following section further differentiates these aspects in order to better understand the complexity of the vulnerability concept. Nevertheless, it must be pointed out that the individual aspects cannot always be clearly distinguished from one another and to some extent, sometimes even overlap.

5.1

Sociality

According to Burghardt et al. (2017) sociality is understood as social togetherness in an interpersonal sphere that can be expressed as something that separates and delineates. Sociality can be seen in those behaviours whereby people influence each other through actions, gestures, looks, words, or silence and thus become aware of the existence and needs of the other (Klein, 2011, p. 2). It can express itself in different ways, such as within societies, communities, or groups, but it is usually formed by a sense of togetherness. This is shaped by common values, norms, traditions, and practices, which are considered to be conformist behaviours within sociality. Being accepted in a group or a society triggers a sense of belonging and security, while vulnerability consists here in the possible exclusion from society due to living outside of its norms and values. Such ascribed nonconformity may emerge when, for example, a woman signals her Muslim faith in a European public sphere by wearing a headscarf. Striving for individuality confronts the individual with inclusion and exclusion as people expose themselves to vulnerability in a quasi-conscious way. This exposes them to disenfranchisement and justice, stigma and tolerance, disregard, and recognition. However, individuality only emerges when there is permanent confrontation with society. Here, the element of recognition plays an important role, as the lack thereof has negative consequences, such as disregard, disenfranchisement and devaluation of individuals (Burghardt et al., 2017, p. 37). In addition, there is social pressure in the form of school and university degrees, educational training, language tests and other measurable skills, which become parameters of the usefulness of people in order to make them optimally utilisable later on. This pressure often leads to people seeking support in communities, e.g., sports clubs, singing groups, but also in political or religious groups. ‘This, however, bears the danger of being alienated, of becoming vulnerable through religious promises or political fundamentalist ideologies that seemingly give it >identity> ’ (Burghardt et al., 2017, p. 38).

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A sense of togetherness experienced by these groups can lead to the minimisation of an individual’s vulnerability, but it can also increase their likelihood to be hurt. One example would be the emergence of parallel societies, which is often cited in connection with educational disadvantages of migrants.7 Thus, the collective subject can be considered as important as the individual, as it is based on a sense of solidarity, which is a result of emotional or traditional attachments of group members (Esposito, 2004, p. 3). In extreme cases, life within the group/sub-community can be more important than life within a society, as participation in critical social or political events fade into the background. The quality and simultaneous danger of societies lies in the fact that the individual no longer only exists as an independent subject, but also as a collective subject (Esposito, 2004, p. 2). In conclusion, vulnerability develops in socialising with others. Hence, to the ontological component mentioned above, vulnerability and vulnerantality have a social character. However, groups and communities always have one thing that distinguishes them from another, namely that there are people outside these groups—the others.8 According to Lévinas (2005, 2011), the subject can never fully grasp the other because of its otherness, and at the same time there is the knowledge that the other is highly vulnerable. In this context the self represents the figure of the host society, while the other becomes visible in the figure of the migrant. Lévinas deduces from this vulnerability an infinite responsibility towards the other. Through this responsibility for the other, the subject itself becomes vulnerable by having to deal with the other’s vulnerability (Lévinas, 2005, p. 39). The fact that the host society can never fully grasp the other in the figure of the migrant is a key aspect regarding the provision of protection to migrants and especially refugees: putting them in camps or externalising asylum processing constitute a failure to acknowledge their vulnerability. More precisely, the subject itself becomes vulnerable through opening up to the other, which can lead to the development of new vulnerabilities. Based on Lévinas’ reflections, Judith Butler (2003, 2005) questions the extent to which one can do justice to the other, through the attribution of ‘being different’ an attribution is already made, which can be understood as 7

Low formal education and low occupational status of parents as well as difficulties with the language of instruction are the greatest obstacles to school success for pupils with a migrant background. (See OECD, 2018). 8 Othering is a permanent act of demarcation, categorisation and ultimately a discursive distinction between ‘us’ and ‘the others’. What is important is that this distinction is a practice rooted in social power and domination relations. In doing so, the focus is primarily on the supposed other. The supposed other is categorised and devalued as not belonging and deviant. Meanwhile the own is seen as natural, positive, and superior—this counter-image enhances the own and underpins its dominance. (See Said (1987) and Spivak (1985)).

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ethical violence.9 The perceiving subject—as representing the host society—must be humble as to the limitations in knowing the other, while the other—in our case migrants—must be generous in forgiving the perceiving subject for not having fully known him/her. So ‘the act of recognition’ of the other by the self requires this double ethical obligation: Humility and Generosity (Butler, 2005, p. 8). So, when we judge the other, which requires being in relation to the other, we should remain aware of this epistemic limitation. As while blaming the other for his or her otherness, one assumes that the ‘otherness’ of the other, including his or her vulnerability, is the other’s sole responsibility. Embedded in a vulnerability concept this means that the creation of socially significant and at the same time negatively connotated differences alone has a considerable potential to devalue, discriminate against and disenfranchise people, thereby violating their integrity. On the other hand, when differentiating from one’s self to the other, there is always the possibility of questioning one’s self. Hence, if the identity of the subject is then consequently constructed on the basis of demarcation from the other, this demarcation becomes of immense importance for the subject in order to protect itself from the other. According to this logic, the defence of one’s own vulnerability causes the harm of the other (Burghardt et al., 2017, p. 40). According to Liebsch (2007), contempt is one way in which the non-recognition of individuals or groups can manifest itself. Butler therefore argues that the recognition of one’s own vulnerability is a requirement for stopping violence (Butler, 2005, p. 37).

5.2

Culturality

As a further aspect of vulnerability, the following section will take a closer look at culturality: Hubertus Busche further differentiates the concept of culture into four basic meanings: Culture we practice, culture we own, culture we live in and culture we create (Busche, 2018, p. 5). Culture we practice describes the shaping or processing of nature by human beings, with the purpose of improving, refining, or bringing nature to a higher level through human shaping (Busche, 2018, p. 6).

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Ethical violence is understood as the exercise of violence based on the different ethical ideas of individuals. It expresses itself when the personal freedom of individuals is restricted by the ideas of others. Ethical violence can also express itself when a person is forced to self-reflect and must therefore consider whether his own ethics may be flawed in relation to another (See Butler, 2003, 2005).

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Here, however, the question arises, which natural dispositions (physical or mental) must a person have cultivated in order to be designated a cultivated person? Which brings Busche (2018) to culture we own: Whoever practices culture, is considered cultivated. Hence, the activities of culture we practice produce culture we own as a result (Busche, 2018, p. 9). Whether one is considered a cultivated person or not, depends on the historical, geographical, and social contexts. As can be seen, the first two meanings of culture focus on the individual, while culture we live in focuses on groups of people and their common sphere of culture. Culture in this sense is ‘the characteristic interrelational context of institutions, ways of life and ways of thinking through which societies and epochs differ from one another.’ (Busche, 2018, p. 14) The culture we live in includes everyday things (such as our fashion or the way we live), as well as the fields of art, politics, religion, technology, business, and science (Busche, 2018, p. 16). Therefore, culture can be understood as a sphere of symbolic order through which the individual is integrated into society (Wimmer, 2002, p. 118). The understanding of this meaning of culture as culture we live in leads to the fact that there must be several cultures, which are historically and/or geographically distinct from each other, such as Greek culture, Western or oriental culture or Arab culture, among others. The vulnerant factor within this meaning of culture is that the specificities of societies and epochs can fade out and be devalued in favour of an abstract higher development of one culture over the other (Busche, 2018, p. 13). This meaning of culture, as culture we live in, is easily mixed up with the concept of civilisation as it also addresses norms, values, beliefs, and others. This equation of the terms culture and civilisation has also been widely used in the scientific discourse,10 as for example by Tylor (1863): ‘Culture or civilization in the broadest ethnographic sense is that epitome of knowledge, faith, art, morality, law, custom and all other abilities and habits which the human being as a member of society has acquired.’ (Tylor 1863, p. 32).

The fourth meaning of culture: The culture we create implies that culture is meaningful, and without it, the culture we live in is meaningless. Furthermore, without the culture we live in, the culture we create is unthinkable. Both types of culture cause and are mutually dependent on each other. Culture we create can be understood in a narrower sense as the term ‘cultural heritage’: The production 10

Among others, Samuel P. Huntington argued that future wars would be fought between cultures rather than between countries. In his article ‘The Clash of Civilizations?’ he puts forward the thesis, that people’s cultural and religious identities will be the primary source of conflicts around the world. (See Huntington, 1993).

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of a culture that can be created, promoted, and worshipped as national property: values in works of art, philosophy and science (Busche, 2018, p. 5). Because culture is meaningful, it explains and reminds us why we value our world so highly, whether as a place of ‘unity, justice and freedom’ or as a playground for human creative power. In contemporary usage, all four meanings of culture are still used today. While the first two refer explicitly to the individual, the last two act as a sphere of society within and with which the individual lives. Culture therefore must be seen as an ordering power, which is constantly created by human beings and thereby has a formative influence on people once more. Consequently, it is relevant for the coexistence of people, similar to sociality, and offers protection, orientation and meaning to human beings. Culture moreover opens up spaces for shaping, but it also consists of vulnerant factors, in that it is not only a source of inclusion but also of division. If one understands culture as a formative order, then culture has equally vulnerant components: ‘Cultural conditions such as words, customs, moral correctness, etc. can become a weapon, both figuratively and literally, used to tame, repress or destroy the >other of the order< - the alien and uncomfortable life forms or cultural practices that call into question one’s own customs and beliefs. This defence of the ‘other’ often makes use of negative stereotyping, pejorative descriptions of the ‘other’, but also social and physical measures aimed at isolating and expelling the ‘other’.’ (Burghardt et al., 2017, p. 42).

If culture refers to an order, it also refers to something that is supposedly not integrable outside the norm. The idea that a culture is a closed, individual subject can lead to the fatal association that the concept of culture can be applied to entire civilisations. Driven to extremes, the existence of several cultures also serves to distinguish them from one another. Moreover, the supposed legitimation of this distinction does not give people from other cultures the same opportunities to be granted privileges and rights, that other social groups effortlessly claim for themselves (Burghardt et al. 2018, p. 42). For instance, culture can thus also serve the supposed legitimisation of categorising people from other cultures according to their social usefulness. This can lead to the dehumanisation of people, groups or whole nationalities because of their origin, religion, or other factors. Vulnerantality is thus carried on the basis of specific cultural conceptions. ‘In many cases the negative consequences only become apparent through repeated injuries, for example through stereotyping, insults or seemingly neutral statements.’ (Burghardt et al., 2017, p. 44).

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Stigmatisation is primarily about excluding people and potentially inflicting violence on them by labelling other people with culturally or socially incompatible characteristics. Vulnerability is shown in the quote above in the form of symbolic vulnerability caused either by verbal and/ or non-verbal communication. It can therefore be said that verbal and non-verbal communication as a cultural vulnerability can be particularly vulnerant. For language cannot only report violence, and not only call for violence, but also as Butler notes, ‘contains within itself its own possibility of violence and destruction (Butler, 1998, p. 15). Thus, language itself is a particularly vulnerant factor within the aspect of culturality. Language becomes a medium of insult, disparagement, threat, mockery, derision, and exclusion (Krämer, 2004, p. 9). This has recently become particularly clear in the form of so-called ‘hate speech’, where victims are threatened in their social as well as their cultural existence by being denied the access to belonging. Furthermore, the content of hate speech always aims to create an inequality between the speaker and the person addressed. The addressee of the speech is thereby downplayed, humiliated, and degraded. Thus, the addressee is othered—always in relation to the position of the speaker him- or herself. The hate speech is primarily about the injury itself, often involving not only psychological violence but also the physical body.

5.3

Corporality

The third aspect of vulnerability refers to corporality. Specifically, the culturally and socially reproduced images of the body clearly demonstrate the extent to which power and economy are expressed through the human body—the human body acts here as a medium of vulnerability. ‘The body implies mortality, vulnerability, capacity for action: skin and flesh expose us to the gaze of others, but also to touch and violence; and bodies hold the possibility that we ourselves may also become the agency and instrument of all this. Although we fight for rights of disposal over our heads, the very bodies we fight for are not always our own. The body inevitably has its public dimension.’ (Butler, 2005, p. 43).

The body succumbs to an inevitable vulnerability to other people through its ‘touchability.’ Therefore, the visibility of the body adds a public dimension to vulnerability. As Morgenstern explains: ‘The body is the translator of the soul into the visible’ (Morgenstern, 1906), through the body the individual is for example able to feel pain, to suffer but also through the body one is able to hurt others.

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The body itself has historically always been objectified and subjectified (Foucault, 2008, p. 5). From a biopolitical11 point of view, this vulnerability of the body can be corrected or circumvented in advance by replacing or optimising individual parts of the body (Bughardt et al., 2017, p. 46). Corporality in this context, however, not only shows the medical vulnerability of a human body, but also rather the shaping of the body through, for instance, disciplining. Through discipline new forms of physical and psychological vulnerabilities may arise. According to Foucault, the body becomes ‘the object and target of power’ (Foucault, 1994, p. 174), which can be manipulated, formed, and trained. In addition, the body becomes an exploitable force only when it is rendered both productive and submissive. The concept of discipline thus takes on a special meaning. Burghardt et al. conclude that, ‘The vulnerability of the human body nowadays is no longer seen as only a means of oppression, but also has regard to questions of utility and economy’ (Burghardt et al., 2017, p. 46).

With regard to corporality and vulnerability, the quality aspect also plays an increasingly important role, as bodies will be classified as sufficient or insufficient according to different suitability criteria. This is evident from the fact that the body itself has always been objectified and subjectified by human mankind. A current example is the age of majority verification, a medical examination for young migrants, in which the body is classified as being of legal age or underage, due to certain measures.12 Using the example of the age of majority verification, it can also be shown that the power mechanisms, which are effective here qualify a migrant’s body. Migrants’ bodies become a vector for the control of their mobility, decide over your living conditions and determine whether family reunification is granted. These power mechanisms, which an individual is exposed to, must be accepted to a certain extent in order to not be excluded (Burghardt et al., 2017, p. 47). The normativity that accompanies these power mechanisms has now

11

Biopolitics refers to an intersectional field between human biology and politics. It is a political wisdom taking into consideration the administration of life and a locality’s populations as its subject (See Foucault, 2008). 12 If there are doubts about the age of a young refugee, a medical examination can be requested in Germany, in order to assess the individual. These examinations include, for example, an X-ray of the carpal bones. However, the medical age tests are controversial, to X-ray without medical indication is an intervention in the physical integrity, because even a medical examination can only provide an assessment (See Hoffmann, 2018).

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established itself as natural. Returning to Foucault, disciplining the body unconsciously becomes the guarantor of the various power instances that use and exploit it (Foucault, 1994, p. 173). This shows that human resources are often at the centre of political, social, and economic interests, which explains the numerous debates on the value of all life (for example debates about whether capsized migrant boats should be rescued or not). The question arises as to who decides which biological conditions must be met in order for a body to be considered worth living within a society or culture. Within the aspect of corporality, physical violence is the most obvious and drastic form of an individual experiencing his or her vulnerability. In the most drastic cases, the individual is confronted with his or her own finiteness and existence. Victims of physical violence are disenfranchised. In the form of torture, they are even deprived of the right to self-defence. In this case, the victim is not only deprived of his or her human dignity, but also objectified (Burghardt et al., 2017, p. 49). Torture moreover does not only target the body itself as it is both a physical and psychological exercise of power. By being confronted with one’s own liminality, it shows that without the body, vulnerability is simply unimaginable. Vulnerability can only be perceived through the body.

5.4

Liminality

The fourth aspect of vulnerability relates to the boundaries and threshold states of humans, the liminality. These states can both be temporary, as well as represent a continuous period of time. The term liminality was originally introduced by Victor W. Turner (1998) to grasp ‘the fundamentally incomprehensible element of change in human life which comes to light when the normal social structure and normal patterns of behaviours are temporarily suspended’ (Rochberg-Halton, 1989, p. 203). Liminality makes the individual vulnerable, as it is confronted with the other, which it can either accept or reject. Vulnerability within liminality can manifest itself in the confrontation with different forms and spaces, e.g., in public and private, in here and there, home, and foreign. As well as in times and phases of childhood, youth, old age, ordinary life, and crisis (Bräunlein, 2012, p. 51). Although space and time along such distinctions are emotionally subjective, the division of the lifeworld into categories such as youth and adulthood, public and private, one’s own and the foreign, is structurally predetermined in a society. The boundaries are therefore set by the social and cultural context. However, dealing with liminality can become a problem in the sense of becoming more vulnerable.

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The familiar terrain must be left behind and everything unknown seems threatening. Such transitions accompanied by uncertainty can be perceived on many different levels (Bräunlein, 2012, p. 52). However, accepting and dealing with one’s own liminality can also push boundaries. For example, the examination of the other can also influence the image of one’s own, in a positive as well as in a negative way. On the one hand, experiences of the foreign can lead to people being negative towards the other and trying to distance themselves or even leading to rejection, violence, and separation. Individuals who are experiencing a phase of liminality are ‘neither here nor there, they are neither one nor the other, but are located between the positions fixed by law, tradition, convention and ceremony’ (Belliger & Krieger, 1998, p. 251). Finally, as an opposite to birth, one’s own finiteness; death can be seen as the final vulnerability, which can be perceived as negative but also as positive. All human beings are vulnerable. To emphasise this, different aspects of vulnerability have been addressed, those of sociality, culturality, corporality and of liminality. Human beings become socially vulnerable because they are dependent on relationships—being part of the community means gaining recognition. In contrast, exclusion from a community makes the individual particularly vulnerable. Furthermore, human beings are determined by culture in everyday life, and can be belittled, discriminated against, and stigmatised by linguistic and/or symbolic means. The body, over which power has always been projected, is particularly vulnerable because the body is concrete and material. Finally, liminality reveals particular limits and the threshold states of people, which they have to deal with over the course of their lives, and which reveal further vulnerant factors. However, vulnerability is not only due to ontological factors, but also to a large extent to structures that can have different effects even within one community. Therefore, I would like to add a fifth aspect to the vulnerability concept—the one of structurality. As human life always takes place within the structure of a society and this aspect was not sufficiently taken into account by the four aspects by Burghardt et al.

5.5

Structurality

Structures enable our existence, e.g., hospitals, schools, roads, energy, the parliament, the police, the administration, they can be characterised as both enabling and restricting. Structurality refers to the structure and the institutions that have a high impact on individual life, which can cause vulnerabilities. Potential vulnerant factors of institutional structures are in the foreground; the structure principles,

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(normative) laws of the respective institutions, specific distribution of power, existing subcultures, special hierarchisation within institutions and normative designs internally and externally, traditions and milieus and the institution’s history and dynamics. Therefore, structurality is not only based on a specific modality of social behaviour, but also on permanent relationships of dependence and subjection (Werkner, 2017, p. 8). This is why all those factors mentioned above can lead to vulnerabilities, as they can affect both the self-determination possibilities and the self-development of a person.13 Structurality includes all those types of vulnerabilities that result from systemic structures. Likewise, the threat or order of certain coercive means create pressure to get someone to do something or to stop them from acting in a self-determined way (Batthyána, 2007, p. 153). An example of this is making permission to work subject to conditions, such as the prior acquisition of language skills. Thus, public institutions such as the police or ministries, as bearers of state power, are among the main actors, which can cause vulnerabilities. The aspect of structurality moreover includes vulnerabilities that can be caused by employee civil servants of an institution, for instance in form of social discrimination against various groups of society. For example, refusing to process a case if the person is not able to speak the language of the host country. It is important to mention that structurality implies that vulnerabilities caused by civil servants are embedded in social forms of interaction and processes and not directly emanating from or implemented nor intended by persons. This means that an exchange of certain actors in a ‘structurally’ violent social relationship usually does not sufficiently change this pattern of interaction. After all, the actions of institutions or their employees are linked to objective guidelines (economic, political, moral etc.), but can often be interpreted subjectively within a certain framework (Imbusch, 2002, p. 39). Structurality can therefore be hurtful, and a very effective means of power by a state, ministries, organisations, enterprises etc., as it can aim to directly force someone to obey and overcome resistance. However, vulnerability and injuries are sensitive issues for public institutions. As far as institutions are concerned, the positive outcome and the achievement of these objectives are of central importance. At the same time, every institution is obliged to follow procedures and regulations, even against resistance. In addition, depending on the regulations and legal situation, there are often differences within 13

Galtung describes this with his concept of structural violence, for which he has been repeatedly criticised. By defining structural violence as the difference between potential and actual realisation, structural violence is necessarily always present and peace impossible (See Galtung, 1971).

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one country. A general vulnerability emanating from institutions or structures in general is therefore hardly comprehensible.

6

Vulnerability of the Migrant

There are certain contexts and circumstances that increase a person’s exposure to vulnerant factors, for instance going through a migratory journey (Bank et al., 2017, p. 12). It follows that, within this understanding of vulnerability, not all human beings are equally exposed to vulnerability. Vulnerability also depends on the specific social, political, economic, historical, cultural, and geographical factors—context matters. It can thus be argued that there are different degrees of human vulnerability; children, the elderly, migrants, and the disabled appear to be ‘more vulnerable’ than adults, the young, natives and healthy people. Some groups, such as migrants, can be considered ‘more vulnerable’ than others, due to the context in which they find themselves. If one takes a closer look at subgroups, one tends to even differentiate the most vulnerable among the vulnerable. For instance: A refugee seems to be ‘more vulnerable’ than an economic migrant, a female refugee ‘more vulnerable’ than a male refugee, and a refugee child ‘more vulnerable’ than a refugee woman.14 This superficial hierarchisation is critical, since vulnerability does not necessarily occur and is not only dependent on the social context but also on the resilience, fortunate circumstances, adaptability, or coping capabilities of an individual. A generalised attribution of people and groups as ‘vulnerable’, here understood in a negative sense—as passive victims,15 carries the danger of a one-sided stigmatisation of migrants as ‘problematic’ rather than also taking their resources into account. However, hierarchisation takes place constantly when dealing with migrants: For instance, during the asylum application processing, when deciding who needs certain assistance and who does not, even in a life-and-death situation, when a rescuer needs to decide which person should be rescued first (triage). Nevertheless, regardless of the reasons for migrating, migrants can become vulnerable at any stage of their journey, as they often travel through numerous countries, become temporarily immobile or fail to reach 14

Mainly because women are often labelled as persons without agency and are therefore seen as ‘more vulnerable’ than men (See Krause, 2017). It becomes even more complicated when various aspects, such as traumatisation, are taken into account in this form of hierarchisation of human beings. 15 The victim label, although eliciting compassion for victims, assigns to them a social role of passivity and forgiveness that they may increasingly find to be restraining (See Van Dijk, 2009).

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their destination. Due to the experience of migration, the new life situation in the host countries, as well as the legal and (sometimes) also restrictive conditions they face there, migrants find themselves in complex situations that particularly expose them to vulnerabilities.

7

How Dealing with the Foreign Other Creates a Vulnerable Situation

Migrants are vulnerable because they are foreign, and because they are foreign, their vulnerabilities are enhanced (Burghardt et al., 2017, p. 134). In the ‘foreign other’, all aspects of vulnerability presented above (sociality, culturality, liminality, corporality and structurality) are intermingled. The subject is vulnerable to the ‘foreign other’ in the sense that it seems to threaten the identity16 of the own. For as soon as the subject deals with the ‘foreign other’, the integration of it into the own already begins (Machleidt, 2007, p. 6). The boundaries of the ‘foreign other’ are not static and change constantly while dealing with the other, therefore, dealing with the ‘foreign other’ affects the identity of the own in several ways. Migration is much more than leaving the culture of origin and one’s homeland. For instance, leaving a familiar space goes hand in hand with crossing the border into a foreign, unknown terrain, which is comparable to leaving the family space in adolescence (Machleidt, 2007, p. 12). Here migrants find themselves in a state of liminality, where the normal social and cultural structures and normal patterns of behaviours are suspended. Migration is also a process of growing into and dealing with the host culture (Machleidt, 2007, p. 5). It is a negotiation process of new and old values, which is accompanied by the formation of a new value system, the redistribution of old and new social roles, the confrontation with one’s realistic abilities and possibilities in the host society, of being accepted within a group or society or whether one is perceived as someone who cannot be integrated. Therefore, it is a matter of belonging and non-belonging, of integration and exclusion—as a result this ‘social and cultural border crossing’ is a source of stress (Machleidt, 2007, p. 21). Negative feelings arise, such as existential fears of failure or the pain of separation from family, but also positive feelings arise from novelty that must be endured and mastered. Not every individual finds sufficient fulfilment in what their own culture provides them with, such as cultural goods 16

In reference to Erdheim, ‘identity’ here refers to a psychological structure that offers orientation. The own and the foreign are brought into a relation to each other in order to orientate oneself within social relationships (See Erdheim, 1992).

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and achievements. In addition, the symbols of the original culture left behind, such as language, knowledge of the system, social interaction patterns, social networks, religion, history, politics, and everyday rituals are restricted in their validity, while the meaning and significance of the symbols of the new cultural area must be learned and tested in their use. Consequently, the lines between the different aspects of vulnerability—at least those of sociality, culturality, and liminality- are blurred here. For migrants, novelty emerges at the border between what is their own and what is foreign. Thus, while dealing with the process of remodelling one’s (new bi/multi-cultural) value-system, the migrant is in an extremely vulnerable situation. A new bi/multi-cultural identity can create more favourable preconditions for individual forms of border-crossing between new and old values, in which elements from both can be integrated. This opportunity is open to those who have accepted the challenges of acculturation in their own and in the foreign culture and have been able to overcome them to a good extent. Although many migration stories are ‘success stories’, or at least migration stories that have been managed quite well, migration can also lead to a drastic isolation from the host society. The foreign (the other) is not only essential for the identity of a subject, but also for the formation of a collective and cultural identity (the us), which also affects a subject´s identity. Collective and cultural identity are based on the confrontation with specific cultural and social ideas and habits. Both identity forms are not static, but rather the expression of social representations in public discourse that can change in time (Burghardt et al., 2017, p. 140). These collective and cultural forms of identity sometimes collide with those of the host society. For instance, traditional family roles change considerably in a new society. Fathers experience a change in their social and professional responsibilities that has consequences on their social position within the family structure. It often comes with a loss of a previously internalised social role as head of the family and sole provider and the consequent loss of power within the family structure (Erdheim, 1992, p. 730). For women new (challenging but sometimes also constraining) opportunities may arise, e.g., to find work outside the family and to take over different responsibilities or lead a more self-determined lifestyle. The preservation of one’s own identity, can lead to the isolation from new cultures, groups, etc. Consequently, the members of one’s own group are generally assigned a higher value, while the members of the other group are devalued, which can lead to an excessive idealisation of the own and a demonisation of the foreign (Machleidt, 2007, p. 9). However, this is not a one-way street; while on the one hand migrants might distance themselves from the host society, they can also experience exclusion, othering, prejudice, social separation, racism, stigma, group-focused enmity and

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inequalitie.17 Migrants can also be perceived as a threat to the host society (Den Boer, 2008, p. 1). The legal status of a migrant alone indicates a precarious claim to recognition, at the same time the migrant (especially the refugee or asylum seeker) is dependent on it’s own vulnerability. In the case of refugees, vulnerability becomes a condition for the recognition of asylum. From a political standpoint, the conditions for the recognition and acceptance of asylum applications are linked to vulnerabilities. Vulnerabilities are then consequently hierarchised in the asylum process from non-deserving to deserving enough. Therefore, although an individual may fulfil the vulnerabilities of fleeing due to poverty, hunger, climate change, and so on, his or her recognition as an asylum seeker is only based on the existence of specific vulnerabilities—vulnerabilities that are considered ‘deserving enough’ by the international community. When a person flees their country mainly due to hunger, his or her chances of being recognised as a refugee depend on whether he or she fulfils other vulnerability (persecution) criteria, such as, being personal and/ or individual harmed by an armed conflict or having suffered gender-based violence. Hunger on its own is not considered as a vulnerability relevant enough to work as a reason for asylum. This illustrates that the vulnerability of migrants also depends on structurality factors. An example for the intertwinement of the vulnerability aspects of structurality and corporality of a refugee during the asylum application process is whether the case manager for the asylum application believes the person’s claim of being underage. If the asylum candidate does not fulfil the caseworker’s expectations of what an underage person should look like, he or she might face extensive medical examinations to determine whether they are lying or not. In addition to the above-mentioned aspects of migrants’ vulnerabilities, when it comes to refugees, they often appear in the media in connection with collective vulnerant symbols, such as the unstoppable flood, wave, or invasion. In contrast to this portrayal, the perception of refugees as ‘the weakest of the weak’ is widespread and encourages a disempowering pity. However, protests by political refugees are often met with little understanding within society. A widely held opinion in society is that refugees should be grateful for what they get and not expect more. But if huge parts of society neither perceive refugees as a threat nor grant them the right to stand up for themselves, this then reduces the refugee to a victim status. Consequently, refugees only deserve help when they appear 17

For the anthropologist Blakey, social exclusion processes are among the most stressful human experiences (See Blakey, 1994). For Taifel and Turner individuals define their own identities with regards to social groups (See Taifel and Turner, 1986).

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as thankful but helpless victims. This then becomes a precondition for the establishment of consensus on the deservingness of unconditional help. Vulnerability becomes a condition of unconditionality. As a consequence, refugees might feel compelled to label themselves as a victim. This way the figure of the refugee is subject to a double victimisation, and several spheres of vulnerabilities become visible.

8

Conclusion

As was made clear in the introduction and the arguments based on it, the ontological view provides a useful framework for discussing both vulnerability and vulnerantality. Both need to be seen in their respective context, and the ‘element of possibility’ relates to both. The distinction between both may seem artificial, however this article argues that it is extremely useful to make a clear distinction between a disposition and the causes and conditional factors for its updating. Moreover, vulnerantality must be considered as a part of vulnerability itself, especially when it comes to discourses of resilience, empowerment, competency, integrity, recognition, agency, etc. The article argues that it is necessary to take vulnerability (and vulnerantility as part of vulnerability) into account when talking about strengthening one’s resilience. Therefore, in this article, vulnerability is not to be understood as a deficiency, or as an anomaly, but rather as a relational category, which forms the other side of the coin to those very discourses. Furthermore, this article pleads for a more comprehensive understanding: to see vulnerability as a possibility in order to truly distinguish which vulnerant factors are politically significant and to be able to address them politically. To be able to do this more systematically, this article described different aspects of human vulnerability; sociality, culturality, corporality, liminality, and structurality. The aspect of structurality was added because the four preceding aspects do not completely include structure. There are structures, which can have different effects even within a community and go beyond what the previous aspects can fully capture. Through life within a society, different vulnerabilities of humans become visible. Humans are socially vulnerable in particular because they are dependent on social relationships with other human beings. Despite all the enabling effects that social relationships can have, an individual is always exposed to certain factors that can make him or her vulnerable, such as exclusion, lack of appreciation and disregard. Through social relationships people not only learn that they are vulnerable, but also how they can hurt others. Culture, if seen as an ordering and

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hierarchising power, which is constantly re-created by human beings, can make an individual particularly vulnerable. It is mainly through symbols, traditions, and language that categorical patterns such as stigmatisation and labelling emerge, as culture is the basis for evaluation systems. But it is only through the body that one becomes a vulnerable human being, since it is only through visibility that an individual becomes recognisable to others. Thus, the body becomes a projection surface of cultural, social, or other aspects of vulnerability. Therefore, corporality also reflects culturally and socially reproduced power images. Vulnerability within the liminality becomes visible within limits, in the confrontation and its transgression and finally, vulnerability also becomes apparent in the finiteness of one’s own life. To complement these four aspects of vulnerability, the article argues that human beings are particularly vulnerable when it comes to structures and institutions, therefore the aspect of structurality has been added. Structurality, with all its potential vulnerant factors, has a decisive influence on humans’ vulnerability. Not all human beings are equally vulnerable; a person’s social context can highly influence one’s exposition to vulnerability. Migrants find themselves in a complex situation that particularly exposes them to vulnerabilities. Through the foreign, all five aspects of vulnerability seem to culminate in the figure of the migrant. There are several possible forms of migrant’s vulnerability in relation to those aspects. Only a few examples could be shown here, such as the change of family role models, the dependency on one’s own vulnerability within the asylum process, the preservation of one’s own identity or the overall struggle with finding a new (bi-cultural) identity. Even though migrants seem to be particularly exposed to vulnerability due to their social context, vulnerability does not necessarily occur and is not strictly dependent on the social context but also on the resilience, fortunate circumstances, adaptability or coping capabilities of an individual. Therefore, it is highly risky to brand migrants as a vulnerable group in general. The construction of migrants as vulnerable victims at best, and as cultural and security threats at worst not only assists in their dehumanisation, but it also legitimises actions taken against them. Moreover, these existing constructions, which hierarchise ‘worthiness’, are limited in their reflection of the complex realities of migrants. However, when discussing migrant issues, especially at the political level, it is important to also talk about vulnerabilities and vulnerantalities, so that the improvement of the general situation of migrants does not remain stuck in a one-sided perspective.

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Safouane, H., Jünemann, A., & Göttsche, S. (2020). Migrants’ agency: A re-articulation beyond emancipation and resistance. New Political Science. (42.2). https://doi.org/10. 1080/07393148.2020.1761736. Said, E. W. (1987). Orientalism. Pantheon Books. Schofer, J. W. (2010). Confronting vulnerability: The body and the divine in rabbinic ethics. University of Chicago Press. Spivak, G. C. (1985). The rani of Sirmur: An essay in reading the archives. The History of Theory, 24(3), 247–272. Tajfel, H., & Turner, J. C. (1986). The social identity theory of intergroup behaviour. In S. Worchel & W. G. Austin (Eds.), Psychology of intergroup relations (pp. 7–24). NelsonHall. Turner, B. S. (2006). Vulnerability and human rights. Pennsylvania State University Press. Turner, V. W. (1998). Liminalität und Communitas. In D. J. Krieger (Ed.), Ritualtheorien. Ein einführendes Handbuch. Opladen: Westdeutscher Verlag. Tylor, E. B. T. (1873). Die Anfänge der Cultur. C.F. Winter. UNHCR. (2010). Convention and protocol relating to the status of refugees. https://cms. emergency.unhcr.org/documents/11982/55726/Convention+relating+to+the+Status+of+ Refugees+%28signed+28+July+1951%2C+entered+into+force+22+April+1954%29+ 189+UNTS+150+and+Protocol+relating+to+the+Status+of+Refugees+%28signed+31+ January+1967%2C+entered+into+force+4+October+1967%29+606+UNTS+267/0bf 3248a-cfa8-4a60-864d-65cdfece1d47. Accessed: 13. May 2020. Van Dijk, J. (2009). Free the victim: A critique of the western conception of victimhood. International Review of Victimology, 16(1), 1–33. Waldenfels, B. (2006). Grundmotive einer Phänomenologie des Fremden. Suhrkamp. Werkner, I.-J. (2017). Militärische versus Polizeiliche Gewalt. Springer VS. Wimmer, M. (2002). Pädagogik als Kulturwissenschaft. Programmatische Überlegungen zum Status der Allgemeinen Erziehungswissenschaft. Zeitschrift Für Erziehungswissenschaft, 1, 109–122.

Part II Migrants’Vulnerabilities and the Practices of Migration Regulation

Vulnerable by Category: A Critical Assessment of Constructions of Vulnerability in International Refugee Law Parastou Hassouri 1

Introduction

It is nearly impossible to work in the field of refugee law, whether as a representative of a United Nations agency or a state asylum office, a lawyer, or a social worker, without encountering or employing the terms “vulnerable” or “vulnerability.” In fact, it has been said that the experience of being a refugee has been reduced to a “vulnerability contest,” (Howden and Kodalak, 2018) as vulnerability criteria are increasingly used as an assessment tool by various actors in order to categorise, and in theory, better serve and protect refugees. The 1951 Convention Relating to the Status of Refugees, which for nearly 70 years has been the principle legal instrument establishing the global legal framework for the protection of refugees, makes no mention of the term “vulnerability.” And yet, the notion of vulnerability has come to occupy a central position within the refugee protection regime. The European Court of Human Rights has spoken of the “inherent vulnerability” of all asylum seekers (M.S.S. v Belgium and Greece 2011). And yet if all asylum seekers are inherently vulnerable, why are refugees thrown into a vulnerability contest whereby each tries to prove that

The author wishes to thank Lewis Turner for his helpful comments and insights in discussions of this paper. The views expressed in this paper are the author’s and not those of any organisation or agency for which she has previously worked. P. Hassouri (B) Calabasas, CA, USA © The Author(s), under exclusive license to Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2021 N. Fromm et al. (eds.), Power in Vulnerability, Studien zur Migrations- und Integrationspolitik, https://doi.org/10.1007/978-3-658-34052-0_2

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he or she is more vulnerable than the other? And are all refugees in fact vulnerable? How do we establish and navigate through a hierarchy of vulnerability? And what are the repercussions of this classification? This paper will examine the notion of vulnerability in refugee law. First, it will explore the concept of vulnerability and its existence in other fields of international human rights law. Then, it will turn to refugee law itself and explore the question of whether the refugee definition itself requires that refugees be vulnerable or exhibit vulnerability. Next, the paper will look at the consequences, for a refugee, of being classified as vulnerable and why it is such a coveted categorisation. The paper will then turn to the problems created by the centrality of vulnerability in the refugee protection field. Lastly, the paper will conclude by questioning whether alternatives to the current classification system may exist that would better protect refugees and fulfil their rights.

2

Vulnerability: Definition and Usage in Human Rights Law

As mentioned above, the terms vulnerable and refugee seem to go hand-in-hand. Media often describe refugees as vulnerable in the sense of weak, traumatised, and dependent. Coupled with language that often also connotes images of invasion and intrusion (example: refugees flooding the borders, etc.), it is no wonder that in the popular imagination the refugee has come to be someone at once to be pitied and feared, especially since the implication is that this weak and needy hoard of individuals will require and drain the resources of the state. The term vulnerable has two meanings. One meaning of the term is exposure to the possibility of being harmed—whether physically or emotionally. In this sense, all of us are vulnerable (Göttsche in this volume). This paper will return to this idea of vulnerability as the inherent condition of all humans later. The second meaning of the term, and the one we see more often in the law is used to denote persons in need of special care, support, or protection. It is this sense of vulnerable that we see most often used with refugees. In the context of human rights and the right to development, the terms “vulnerable” and “vulnerability” are also used to describe segments of the population in need of special care or attention. In fact, it has been said that the adoption of specialised international conventions addressing the rights of particular groups are indicative of the realisation that these groups need special attention on account of their vulnerability (Morawa, 2003). Examples of such conventions include the Convention on the Elimination of All Forms of Discrimination Against Women

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(CEDAW) or the Convention on the Rights of Persons with Disabilities (CRPD). In the context of international human rights law, the general categories of distinguishing criteria that define the vulnerable include age, sex, ethnicity, health, physical ability, liberty status, or other legal status. It is of course entirely possible for a person to fit more than one category. The theory of intersectionality was conceived specifically to provide a theoretical framework for understanding how different aspects of a person’s identities may combine to create different modes of discrimination or disadvantage (Crenshaw, 1989). Intersectionality tells us that a minor who is pregnant and suspected to have been trafficked ought to elicit a higher level of care and scrutiny from any organisation or authority to whose attention she may have come than someone without those particular characteristics. Of course, the challenge in these situations is that vulnerability indicators are often rather prevalent among certain populations (refugees are a prime example), requiring the creation of a hierarchy of vulnerability such that it becomes possible to hear terms like “extremely vulnerable” or “particularly vulnerable.” As mentioned above, in the context of human rights law, the idea of categorising persons by vulnerability is to recognise that the state should ideally tailor an intervention accordingly. For instance, in the context of detained persons, the state has a duty to ensure that minors are separated from adults. Or, in the context of criminal proceedings, the state will guarantee the anonymity of a witness considering his or her age, or legal status. Although it is beyond the scope of this paper, it is worth noting that an argument has been made that the special conventions are necessary because they aim at redressing a historic injustice and not because of any inherent weakness identified in the particular subject. Here, the argument goes that special interventions may be needed for a particular category of persons, say, members of a racial minority, not due to their inherent weakness, but because racism and existing power structures have left them in a disadvantaged position. As such, affirmative action programs are meant to rectify this historical injustice, rather than to give the group an advantage. Again, though tangential to the main themes of this paper, it is important to recognise that measures aiming to address these historical wrongs have at times created a backlash against the very groups they were meant to protect (e.g., Rojas Matas in this volume). As a result, it is possible to encounter members of a racial minority who reject affirmative action programs. The relevance of these themes to refugee law and interventions in support of refugees will be discussed later.

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In summary, vulnerability criteria have come to be used and have a specific meaning in human rights law generally to denote persons requiring special attention and therefore interventions by the state.

3

Vulnerability in the Refugee Definition

As previously stated, the 1951 Refugee Convention makes no specific mention of vulnerability. Though nearly 70 years have passed since the 1951 Convention first came into play, it remains significant, because to this day, it continues to represent the cornerstone of the international legal protection regime for refugees. The 1951 Convention definition of a refugee remains relevant and has been adopted almost verbatim in the domestic legal framework of many countries that have promulgated domestic asylum law and procedures. The term vulnerable does not appear in the definition of a refugee, nor does it appear in the remaining articles of the 1951 Convention which concern issues such as cessation of refugee status, exclusion from refugee status, or the content of refugee protection. The 1951 Convention defines a refugee as a person who “as a result of events occurring before 1 January 19511 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.” (Article 1(a)(2) 1951 Convention). Looking more closely at the 1951 Convention definition, in order to be a refugee, a person needs not show vulnerability, but rather, needs to show that he or she is unable or unwilling to return to their country of origin due to a well-founded fear of persecution on account of one of the five enumerated grounds. The term persecution is not defined in the Convention but has come to be interpreted as a serious threat to one’s life or freedom, or serious violations of human rights (para 51 UNHCR Handbook). The 1951 Convention looks to fear as a relevant motive in defining a refugee— specifically, the refugee must evince a fear of persecution that is “well-founded.” Determining whether an individual has a “well-founded fear” of persecution 1

It should be noted that the 1951 Convention is very much the product of deliberations that transpired in the aftermath of two world wars in Europe. The temporal restriction noted here was removed by the 1967 Protocol to the Convention and today, the refugee definition has no such restrictions.

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requires an evaluation of a refugee’s statements, as well as an examination of the situation prevailing in his or her country of origin. The aspect of this determination that depends on evaluating the refugee’s state of mind is normally referred to as the “subjective element” of well-founded fear. And that subjective element must also be supported by an “objective” one—hat is, facts on the ground that would support and substantiate this fear (para 37 & 38 UNHCR Handbook). The reason for spelling all this out is to illustrate that this is one of the few places where the idea of vulnerability becomes relevant in interpreting the refugee definition. There is a recognition when interpreting this definition that an evaluation of the subjective element of well-founded fear cannot be separated from the psychological make-up of an individual, which may very well be affected by his or her age, gender, and other life experiences. These factors, in turn, may have an impact on how he or she perceives or responds to persecutory acts. For instance, a person of deep religious convictions will respond to state measures restricting free exercise of religion differently than someone who is non-observant. Similarly, pressures placed on a woman to marry against her will are always problematic, but particularly egregious if the woman in question is a minor. Therefore, factors such as age, gender, ethnic origin, or physical ability, may make a person more vulnerable or susceptible to persecution, or may impact how they experience this harm. One other aspect of the refugee definition that suggests a link to vulnerability is the ground of “membership in a particular social group”—one of the five enumerated grounds in the 1951 Convention that is not defined by the Convention itself and has had the least clarity. In the absence of a definition within the Convention itself, different jurisdictions have interpreted the classification using two approaches, which ultimately are closely linked (UNHCR, 2002). One approach, referred to as the “protected characteristics” approach defines a particular social group as one that is defined by an immutable, often innate characteristic that is fundamental to human dignity. In defining which characteristics are of such a fundamental nature to human dignity, courts have looked to human rights norms for guidance. Using this approach, courts in a number of jurisdictions have concluded, for instance, that gays and lesbians constitute members of a particular social group. The other approach, called the “social perception” approach, looks at whether a common characteristic of the group makes them cognisable or sets them apart from society at large. As stated previously, analyses under the two approaches frequently converge because groups who may be targeted for persecution based on a common immutable characteristic (e.g., sexual orientation) are also often perceived as a social group in their societies and treated accordingly.

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In effect, a particular characteristic leaves member of this group vulnerable and at risk of harm, and therefore in need of protection. The particular social group ground was conceived to cover situations that may not be covered by the other grounds for refugee status. Of course, at times, there is overlap between the different grounds for refugee status. The theory of intersectionality, mentioned above, has served refugee law particularly well in that the multiple facets of a particular asylum seeker’s identity—for instance, her ethnicity and her gender—may combine to leave her vulnerable to harm to a much greater degree even than men of her ethnicity. In this case, the refugee may be said to belong to the particular social group formed of women of that particular ethnicity. Again, since gender has not been specifically designated as one of the five grounds for refugee status under the 1951 Convention, refugee claims resting on gender-based persecution are often presented as claims based on membership in a particular social group. Most of the grounds for refugee status enumerated in the 1951 Convention are based on characteristics generally considered to be innate, such as race, nationality, and religion (even though in theory people may acquire another nationality later in life or convert to a different religion). The inclusion of these characteristics acknowledges a history of harm inflicted on persons on account of these traits. It also recognises that harming persons due to characteristics that are innate—that they are born into and over which they have no control—should not be tolerated and victims or potential victims of such harm are entitled to international protection. It is only the ground of political opinion that is generally not intrinsic to a person (i.e., we are not born holding political opinions), and which usually requires active participation in acts which makes the authorities—the agents of persecution—aware of a political opinion they do not tolerate. But in all cases and with all grounds, recognition as a refugee under the 1951 Convention requires that the refugee show that he or she has been targeted and has suffered or will suffer serious harm rising to the level of persecution, and has a continued fear of this harm, should he or she be forced to return. In effect, being a refugee requires a high level of agency: taking the decision to no longer stand for suffering in one’s country of origin and seeking protection elsewhere, despite the many obstacles in place requires determination and resolve. This is the opposite of vulnerability. Ironically, it is after making the decision to flee one’s country and seeking protection elsewhere that refugees’ fates are in the hands of governments and bureaucracies that wrest the control they have previously exercised over their own lives. It is this contradiction that many struggle with. But refugees have at one point in their lives exercised a high level of agency in making the decision to leave. In fact, as often as one hears the term vulnerable

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in reference to refugees, one also frequently hears the terms resilient and resilience. Not surprisingly, there are also critiques of the term resilience in connection with refugees, which is beyond the scope of this paper (Hilhorst, 2018). However, it is interesting to note that refugees are required to embody two contradictory characteristics at once—vulnerability and resilience. And in the process of refugee status determination, adjudicators, whose first task is to assess the credibility of asylum seekers, often base their credibility findings on degrees of vulnerability or resilience exhibited by a refugee, sometimes inappropriately.2 Credibility findings are very subjective, despite efforts by different jurisdictions to try to produce objective criteria for adverse credibility findings. And adverse credibility findings are a common reason for refugee claim denials (Kagan, 2003). Therefore, in a sense, it is rather telling that the process whereby a refugee is formally recognised as one should be shaped by such subjective criteria, whereas the whole purpose of the 1951 Convention was to create a more objective and precise legal definition. In sum, the word vulnerability does not appear in the text of the 1951 Refugee Convention. The refugee definition does not mention vulnerability, nor does it, on its face, appear to require that refugees be such, even though it is not completely irrelevant either. So how does vulnerability become such an integral part of the refugee experience?

4

The Benefits of Vulnerability

The term vulnerable refugee may have negative connotations of weakness or dependency. However, in the context of how refugees are received, processed, and treated, being categorised as vulnerable has significant consequences at nearly every stage of the process, and in many cases confers advantages to such a degree that it has become a coveted designation. Once a refugee has taken that step and left her country of origin, what makes her vulnerable? Vulnerability criteria are numerous and varied based on who has developed the criteria and for what purpose. Generally speaking, the vulnerability of refugees may be measured by age, gender, marital status, bodily ability, sexual orientation, income, education level, to name a few. Some criteria are visible, and some are not, which will be discussed later. But these indicators have a very 2

It is beyond the scope of this paper to discuss this at much length but in the course of trainings that I have conducted with persons who will be conducting such interviews, I am often surprised by comments I hear regarding whether or not a refugee seems too broken to have had the experiences they recount, or alternatively, they are not broken enough.

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real impact on the experience refugees have as they go through the process of “refugeehood” in a host country or country of asylum.3 From the first stage—arrival—being designated vulnerable can at times make a difference in how a refugee is received. For instance, especially in situations of mass influx,4 where large make-shift reception facilities are set up for large numbers of refugees, a vulnerable refugee may be separated and placed in more comfortable or more private accommodations.5 Or, in situations where a host country has a policy of automatically detaining arriving asylum seekers, a vulnerable refugee may be exempted from detention. Often, the next stage for a refugee is registration and the receipt of documentation identifying him or her as an asylum-seeker. This step is especially critical as it provides essential protection against deportation to one’s country of origin. Though it widely differs depending on the country and the context, the process of registration can take a long time, again, especially in situations of mass influx. It is possible to hear accounts of refugees waiting months to be registered, during which time they are facing heightened risk of arrest or deportation. Again, being classified as a vulnerable refugee can expedite the process and essentially allow a refugee to move ahead in the queue. This same applies in situations of waiting for eligibility interviews—a process that can take an even longer period of time. Earlier identification and registration provide earlier protection from the possibility of arrest, detention and deportation. The next stage is the actual refugee status determination proceeding—an individual interview conducted with the refugees in order to establish if they meet the refugee definition and have their status formalised and declared. A vulnerability designation will often have an impact on how the refugee status determination 3

I want to insert a clarification on these terms and the reasons I use both. Statistically, the majority of the world’s refugees reside in developing countries of the global south. These countries host these refugees, often for years, even as the refugees residing there ultimately have their sights on settling elsewhere. Host countries may also be considered countries of asylum, especially in cases where refugees have formally applied for asylum there. But there is still a distinction to be made between these countries and other countries of asylum in the global north, where refugees hope to settle, effectively on a permanent basis. 4 Although there is no exact numerical designation for what would constitute a mass influx, situations of armed conflict and generalised conflict often give rise to mass influx. At the peak of the so-called Euro-Mediterranean migration “crisis” in 2015 and 2016, the scale of arrivals by boat in countries like Greece were often referred to as an influx as well. 5 In the fall of 2017, during work on the Greek island of Chios, I observed that though the majority of refugees who had arrived on the island were required to stay in a camp that consisted of tents surrounded by barbed wire set up in the middle of an olive grove, those deemed to be vulnerable were moved to apartments in the port city.

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procedure is conducted, depending on what the specific vulnerability is. Thus, the process may be abbreviated or conducted by specially trained eligibility officers for an unaccompanied minor. A refugee survivor of sexual violence or torture who has been identified and referred for a psychological evaluation, may be permitted to forego an examination of the details of the incident in order to avoid being re-traumatised. A refugee with mobility issues (for example one who is unable to move due to a physical handicap or due to injury) may be interviewed in their place of accommodation. There are different possibilities, depending on the criteria and depending on the resources of the country where asylum is being sought. The forms of assistance refugees receive in the host country or country of asylum are also largely dependent on their classification. The reality is that most refugees flee persecution and violence in their countries of origin to arrive in countries where they may not immediately enjoy certain basic human rights such as access to healthcare or education, or the right to employment. In such cases, refugees become very dependent on non-governmental organisations that provide them with financial assistance and help in accessing resources. Because these organisations face their own resource limitations, they use vulnerability criteria in order to allocate those limited resources to refugees based on need. Although there are variations among different agencies and organisations as to vulnerability indicators, there are certain commonalities such as age, physical/mental health, marital status, familial status, legal status, sexual orientation, among others. How these assessments are made vary depending on the context. For instance, in Egypt, where at the moment, there is no domestic legal framework for asylum, the United Nations High Commissioner for Refugees (UNHCR) is tasked with refugee status determination and the management of refugees, generally speaking. In 2017, the UNHCR conducted an assessment of the situation of Syrian refugees and surveyed over 26,000 Syrian households all over Egypt using a detailed vulnerability assessment questionnaire capturing data such as household size, education levels of household members, health, employment status, revenues, expenditures, debts, food consumption, among other indicators (UNHCR, 2017). These rather detailed assessments are used to better formulate support and protection strategies for refugees in Egypt. Finally, vulnerability criteria play a significant part in determining which refugees are resettled to third countries. As stated previously, the majority of the world’s refugees reside in countries of the global south. According to UNHCR statistics, 85% of the world’s estimated 26 million refugees live in developing countries (UNHCR, 2020). The UNHCR has also highlighted the increasing trend for refugees to find themselves in “protracted situations,” generally defined as a

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situation where refugee populations of more than 25,000 have been in exile for five or more years. Protracted refugees’ crises are troubling for the UNHCR, since, in theory, one of their mandates is to seek permanent solutions to the plight of refugees. The three conventional durable solutions—repatriation, voluntary integration, and resettlement to a third country—are each failing in their own way. For example, in 2019, approximately 317,200 refugees repatriated to their countries of origin (UNHCR, 2020). The reality is that increasingly protracted refugee crises are placing return farther from the reach of many refugees. In addition, in 2019, only 107,800 refugees were resettled to third countries (the UNCHR had identified 1.4 million refugees as needing resettlement) (UNHCR, 2020). Again, this small number represents a fraction of those desiring resettlement. For although as statistics show, a small fraction of the world’s global refugee population is resettled in any given year, resettlement is seen by many refugees as a panacea and is very much desired. Because of the limited supply of resettlement spots and the huge demand for resettlement, the UNHCR has had to develop certain submission criteria (UNHCR RST handbook). Again, to clarify, resettlement refers to the process by which refugees who have already sought asylum in countries outside of their country of origin are, through an agreement with a third country, resettled there, mostly due to pressing protection concerns. Refugees fitting into one or more of the submission categories are then referred for resettlement. The categories are: legal and/or physical protection needs (for those refugees at immediate risk of refoulement, arbitrary arrest, detention, imprisonment, or whose physical safety is under threat to a degree that makes remaining in the host country untenable); survivors of torture/violence (for refugees who experienced torture/violence in the country of origin or host country and suffer from lingering physical and psychological effects that are not able to be addressed in the host country); medical needs (for refugees facing life threatening illness or an irreversible loss of functions that who may find a cure/treatment in a resettlement country as required treatment is unavailable/inaccessible in the host country); women and girls at risk (for women and girls facing protection concerns particular to their gender and lacking effective protection); family unification (to reunite refugees with family members already in resettlement country where separation was involuntary and due to a refugee situation); children and adolescents at risk (for under 18 refugees who are generally unaccompanied by adults or have been separated from them and have protection needs that cannot be addressed in the host country); and lack of foreseeable alternative durable solutions (for refugees in protracted refugee situations, applied in coordination with national or regional strategies to address the needs of specific refugee groups).

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What has been described above are the general parameters of the criteria the UNHCR employs for making resettlement submissions. Naturally, there are further operational details taken into consideration depending on the refugee’s country of origin, the host country context, and the requirements of the country of resettlement. With the possible exception of the categories of family unification and lack of foreseeable alternative durable solutions, the other criteria all revolve around the idea of vulnerability. The refugee must be removed from his or her current situation due to a threat to his/her physical and psychological health and safety, which may be caused by different factors, but which cannot be addressed satisfactorily in the host country. It is worth noting that mere difficulty in surviving—economic hardship—which may be a criterion for material assistance, does not give cause for resettlement. It is also interesting that economic hardship which is a situation in which many refugees find themselves once they are in host countries or countries of asylum, is itself not a ground for obtaining refugee status. In fact, countries of aylum in the global north are singularly obsessed with sifting refugees from economic migrants, who are not seen to deserve refugee status. It is common to hear the terms “mixed migration,” especially in the context of “irregular migration,” as a way of justifying some of the measures implemented to prevent these flows. The idea here is that the boats arriving on the shores of southern Mediterranean countries may include “bona fide” refugees, but they will also contain many people who are not refugees, but just persons seeking better economic opportunities and therefore, not entitled to the same protections under international law. Ironically, however, after acceptance into those countries that have pushed back or rejected economic migrants, refugees face poverty. The foregoing was meant not to be an exhaustive examination of vulnerability and refugees. Rather, it is meant to be an overview of how vulnerability figures into the picture and how it is constructed by those interacting and dealing with refugees. Although vulnerability need not be an inherent or intrinsic characteristic of a refugee (one does not become a refugee because one is vulnerable, although vulnerability may play a part in becoming a refugee), but once the label is attached to the person, whether as an asylum-seeker arriving in a country seeking refugee status, or after being formally declared a refugee, vulnerability becomes an important factor. As described above, at every stage of the process, the different actors interfacing with refugees may use vulnerability criteria in order to assess how to treat them. In a shallow pool of limited resources but faced with refugees’ deep needs, vulnerability criteria become a tool to help those in charge determine how to allocate resources. Given this reality, the idea of refugees being thrown into a “vulnerability contest” makes sense, since the most vulnerable are the ones who seemingly win.

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Criticism of Vulnerability and Vulnerability Criteria

The extent to which “vulnerability” and “refugeehood” have become entangled has, not surprisingly, led to a number of criticisms. Some of the criticisms are of the concept itself, some are more of the way in which the concept has been applied, and some are a critique of the consequence and repercussions that an excess focus on vulnerability criteria have had for refugees. One strand of criticism that is directed at the concept itself takes aim at the elasticity of the concept, its subjectivity, the fact that there are no uniform criteria for defining vulnerability, and that vulnerability appears to be very much in the eye of the beholder. The idea here is that there are individuals making important decisions about the lives of refugees, based on criteria that are elastic and subjective. There is a lack of consistency and uniformity in how these decisions are made because of the fact that they are being made by individuals very much affected by their own views and judgements. This lack of predictability and consistency further adds to the frustration of refugees and the precarity of their lives. Another thread of criticism takes issue with the concept of vulnerability for forcing refugees to conform to certain pre-conceived criteria, and for reifying certain stereotypes about refugees. The critique of the idea of tying vulnerability to gender has been particularly robust. A number of scholars have examined and critiqued the longstanding practice of many agencies and actors to categorise women as vulnerable per se and the damage this has done to both women and to refugee men who have been neglected as a result (Turner, 2019). Additionally, the emphasis on vulnerability generates this idea of the “deserving” refugee who needs our compassion. Again, the images and stereotypes can produce conflicting and contradictory messages: refugees are weak and vulnerable and deserving of our mercy and compassion; or: refugees are weak and vulnerable and a drain on resources that will leave less for the citizens of the country. And just as some members of designated vulnerable groups reject the label and interventions on their behalf because it is seen to confer on them an advantage and undermine or discount their own strengths, there are refugees who reject the vulnerability label, for it discounts the possibility of refugees being resourceful and positive contributors to society. Criticism has also been directed at the actual application or implementation of the criteria. In my own experiences as a practitioner working with asylum seeker and refugees in several countries, I have heard concerns about whether the persons who have that first contact with refugees are adequately trained to identify vulnerability criteria and make the requisite referrals or interventions. Some of the criteria that are plainly visible are of course easily addressed. For instance, in late

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2012 and early 2013, while working with the UNHCR at the Zaatari refugee camp in Jordan, at a time when hundreds of Syrian refugees were crossing the border into Jordan on a daily basis, only those with the most visible vulnerabilities could be identified and assisted—usually this either translated to persons crossing the border with very visible injuries and in need of pressing medical care, women in later stages of pregnancy, persons with disabilities, or the elderly. However, even this seemingly obvious array of persons could be missed once they entered the camp and disappeared into the crowds. Much harder to identify are those with vulnerabilities that are not visible to the eye—for instance, those bearing the psychological trauma of torture. The task becomes even more difficult in contexts where refugees blend into the urban fabric. So, in a large metropolis like Istanbul or Cairo, it can become much more difficult to identify those with vulnerability criteria. Again, the lack of uniformity among actors dealing with refugees at times leads to confusion and inconsistencies, with refugees not knowing to which organisation or agency to turn for assistance. Another facet of criticism addresses the fact that refugee and migration policy in many countries creates and then reinforces vulnerability. Then vulnerability and dependency become mutually reinforcing. For instance, countries that have instituted an encampment policy as a way of dealing with refugees are criticised for keeping refugees dependent on aid and assistance. Of course, there has been a long line of scholarship criticising encampment policies as violating refuge rights (Abdi, 2005). The manners in which camps are designed and administered also reproduce and reinforce vulnerability. For instance, again, referring to my experience in Zaatari refugee camp, the presence of the camp a mere 30 kms from the border of Syria made the young men residing there an easy target for recruitment by armed groups. Also, refugee camps have come under frequent criticism for the way in which they increase the vulnerability of women to sexual and gender-based violence (Atuhare and Ndirangu, 2018). Despite this, all across the world, the problem persists. Another example concerns the right to work. The countries hosting the largest numbers of Syrian refugees do not give them the right to work, for instance Lebanon. Refugees are either forced into seeking assistance (which is limited), or are forced to work “illegally,” which leaves them vulnerable to exploitation, arrest and/or detention. And so, a cycle of dependency and vulnerability is perpetuated. Lastly, an additional criticism of the over-emphasis on vulnerability and what in my opinion is one of its most negative consequences is that it creates a whole culture of distrust of refugees. There has been some scholarly examination of the issue of trust and specifically mistrusting of refugees (Valentine and Knudsen, 1996). As mentioned above, credibility findings are the first step in refugee status

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determinations and an asylum seeker who may otherwise present a very coherent claim for refugee status may have their applications rejected if they are not found to be credible. In my experience, I have encountered adjudicators whose default position is to assume that an asylum seeker is lying, unless something very compelling in their testimony or very strong corroborating documentation renders them trustworthy. This focus on credibility and automatic distrust of refugees is undoubtedly fuelled by media accounts depicting most asylum seekers as persons presenting embellished or entirely fictitious claims. And it has very much seeped into the mindset of many decision makers. The interesting thing is that this distrust stays with refugees, even after their claims to refugee status have been accepted and they have formally been recognised as refugees. The distrust is exhibited by many of the actors who deal with refugees after their admission. In my experience working in legal aid organisations and as an advocate for refugees, I encountered a number of service providers who were simply incredulous when confronted by refugees requiring assistance. Their reasoning was that refugees lie in order to obtain things. When asked to elaborate on this, usually they said that when refugees learn of something that is available to persons meeting certain conditions or requirements, they are then faced with many more refugees all claiming to fit those same criteria. When it becomes clear that the thing to be obtained (for instance, an additional allowance for food) is not available for all the refugees, the accounts of need become more dramatic and dire. It always struck me as interesting that these thoughts would be expressed by people who had conducted or read assessments of refugees’ condition and therefore knew that there was a great deal of need in the community. What I could never understand is why, instead of pointing to the problem of inadequate resources, the blame would be shifted onto refugees who lie in order to obtain a benefit. The culture of distrust of refugee stories becomes especially acute in the context of resettlement. As previously stated, the demand for resettlement is far, far greater than the available resettlement spots. In order to be considered for resettlement, refugees must fit at least one of the resettlement criteria. Predictably, refugees’ requests to be considered for resettlement are met with a great deal of scepticism. In my experience in working for a legal aid NGO in Cairo, the UNHCR’s initial response to any claims by Sudanese refugees based on fear from Sudanese authorities in Egypt was met with suspicion, despite documented cases in media of close cooperation between intelligence agencies in both countries. It was simply assumed that because they wanted to be resettled, refugees would manufacture stories of being pursued by the authorities from the embassy in order to fit resettlement criteria. During research I was conducting on resettlement of

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Iraqi refugees from Jordan and Lebanon, I met service providers who told me that there are women inflicting harm on themselves in order to fit the “women at risk” criteria. When I would ask them about any protocols, they had instituted to better help them determine the credulity of these claims, they were unable to provide any specifics. It truly appeared as though this response was the default position, unless they were confronted with very compelling evidence otherwise (though it was not always clear what that was). Again, instead of criticising the paucity of resettlement places, or the absence of other legal pathways for refugees to migrate, or the conditions in host countries driving refugees to focus so singularly on resettlement as the only answer to their problems, the blame was always placed on refugees. The distrust culture works both ways. Refugees also have high distrust of government institutions, UN agencies and NGOs (although some exceptions exist for those that truly work with refugee communities). There are several reasons for this distrust, but the root of it has to do with what is a lack of transparency of these institutions. Refugees have a feeling that these organisations make decisions for them and govern their lives, under terms that are unknown to the refugees themselves. When organisations are questioned about the lack of transparency, some respond that they are forced to operate as they do due to concerns about fraud. In effect, complete information regarding an issue like resettlement with refugees is not shared with them, for a fear that it would increase fraud in the process, which in turn increases the refugees’ distrust of the organisation and increases the incidence of fraud. Therefore, a vicious cycle is established. Finally, at times, this culture of distrust permeates the refugee community: one refugee community will be pitted against another, or within the same community, members turn against one another. During visits to Greece in the aftermath of the infamous deal between Turkey and the European Union in March of 2016, there were many reported incidents of tension erupting inside refugee camps because of what was perceived as favourable treatment given to Syrian refugees under the deal. During the period when there were many calls for the U.S. to increase its resettlement of Iraqi refugees, resentment towards Iraqi refugees started to grow among other refugee communities who felt like they had spent longer periods of time trapped in host countries and other more difficult conditions. And during different interviews I have conducted with refugees for research, it is common to hear refugees complain about other refugees who do not face the same hardships as they do, but yet have been resettled, or received assistance, or some other benefit. Therefore, in essence the scarcity of a resource or a benefit drives those in charge to establish and create criteria for its distribution. The criteria are often

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based on vulnerability—however it is defined/seen in a given context. This, in turn, leads refugees to compete with one another for access to that resource or benefit—the aforementioned “vulnerability contest.” Confronted with many demands for this resource and a limited supply, decision makers either have to create hierarchies of vulnerability, distrust many of the accounts they hear, or both. In turn, refugees who are not privy to the reasons guiding these decisions develop a distrust of the institution and of one another. And the cycle plays out endlessly and in very similar patterns in different contexts.

6

Conclusion: Are There Alternatives?

Given the critiques of vulnerability criteria, how they are defined and how they affect refugees, what are the alternatives? The perspective of practitioners and those engaged in day-to-day service provision is that vulnerability criteria, though not perfect, are the only available tool they have to ensure that those most in need receive services. In this view, the limitations of time, resources, and personnel weighed against the needs of refugees render vulnerability criteria an indispensable tool for better categorisation and resource allocation. It is of course, hard to deny that at certain stages there is a need to prioritise refugees with special needs—for instance expediting the registration of a refugee woman who is pregnant to ensure her access to healthcare before she gives birth. Those who maintain a more critical stance towards vulnerability take issue with the concept, its application, and the consequences of it. From the perspective of a practitioner who is an advocate for refugee rights, the most damaging aspect of vulnerability criteria has been its creation of a culture of mutual distrust between refugees and those who purportedly serve their needs. In my experience, the level of distrust can easily reach a point at which refugees simply do not turn to certain agencies, believing it to be completely futile. At times, the extent of distrust and frustration leads to refugee protests—which are increasingly a common vehicle for refugees to express their despair and sense of powerlessness before the UNHCR and states (Moulin & Nyers, 2007). I do not mean to suggest of course that vulnerability criteria are the only factor that feeds into this cycle of distrust, but they definitely play a part. In light of the foregoing, is it possible to imagine alternatives? Feminist legal scholar Martha Fineman has suggested that vulnerability should be liberated from its limited, negative associations with victimhood and dependency and rather be seen as describing a universal, inevitable and enduring aspect of the human condition (Fineman, 2008). In so doing, she argues, vulnerability can become a

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conceptual tool with the potential to better define state obligations to ensure equality in response to individual and institutional vulnerability. In effect, Fineman is arguing for a paradigm shift in how we state interventions and responsibility. Seeing vulnerability as the inherent human condition, as opposed to a weakness or a special need, shifts the focus onto the state and the adequacy of their interventions and response. Redefining the relationship between the subject and the state in this way, in the context of refugees, for instance, shifts the emphasis from the refugee onto the state and an examination of how state laws and policies contribute to making refugees vulnerable and how that should be addressed. A call for such a paradigm shift is also more consistent with calls by other scholars (Göttsche in this volume) and practitioners for more refugee-led, participatory approaches to designing programs and interventions to address their needs.

References Abdi, A. M. (2005). In Limbo: Dependency, insecurity, and identity amongst Somali refugees in Dadaab camps. Refuge: Canada’s Journal on Refugees, 22(2), 6–14. https://doi.org/10. 25071/1920-7336.21328. Atuhaire, P., & Ndirangu, G. (2018). Sexual and gender-based violence in refugee settings in Kenya and Uganda. Women in International Security Policy Brief . March 2018 available at: https://www.wiisglobal.org/wp-content/uploads/2018/03/9th-WIIS-Policy-Brief3-5-18-v2-.pdf. Accessed 1 Nov. 2020. Crenshaw, K. (1989). Demarginalizing the intersection of race and sex: a black feminist critique of antidiscrimination doctrine, feminist theory, and antiracist politics. University of Chicago Legal Forum, 1989(1), Article 8. Fineman, M. (2008). The vulnerable subject: Anchoring equality in the human condition. Yale Journal of Law and Feminism, 20, 1. Göttsche, S. (2021). In this volume. Hilhorst, D. J. M. (2018). Classical humanitarianism and resilience humanitarianism. Journal of International Humanitarian Action, 3(15), 1–12. https://doi.org/10.1186/s41018-0180043-6 Howden, D., & Kodalak, M. (2018). The vulnerability contest. Refugees deeply, 17 October, 2018. https://deeply.thenewhumanitarian.org/refugees/articles/2018/10/17/the-vulner ability-contest. Accessed 1 Nov. 2020. Kagan, M. (2003). Is truth in the eye of the beholder? Objective credibility assessment in refugee status determination. Geo. Immig. L. J., 17, 3. M.S.S. v. Belgium and Greece. (2011). Application no. 30696/09, council of Europe: European court of human rights, 21 January 2011. https://www.refworld.org/cases,ECHR,4d39bc 7f2.html. Accessed 1 Nov. 2020. Morawa, A. (2003). Vulnerability as a concept in international human rights law. Journal of International Relations and Development, 10, 139–155.

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Moulin, C., & Nyers, P. (2007). “We live in a country of UNHCR” – Refugee protests and global political society. International Political Sociology, 1(4), 356–372. https://doi.org/ 10.1111/j.1749-5687.2007.00026.x Rojas Matas, Y. (2021). In this volume. Turner, L. (2019). The politics of labeling refuge men as “vulnerable.” Social Politics. Summer, 2019, 1–23. https://doi.org/10.1093/sp/jxz033 UN High Commissioner for Refugees (UNHCR). The 1951 convention relating to the status of refugees and its 1967 protocol, September 2011. https://www.refworld.org/docid/4ec 4a7f02.html. Accessed 1 Nov. 2020. UNHCR. (1951a). Handbook on procedures and criteria for determining refugee status and guidelines on international protection under the 1951 convention and the 1967 protocol relating to the status of refugees, April 2019, HCR/1P/4/ENG/REV. 4. https://www.ref world.org/docid/5cb474b27.html. Accessed 1 Nov. 2020. UNHCR. (1951b). Guidelines on international protection no. 2: “Membership of Particular Social Group” within the context of article 1A(2) of the 1951 convention and/or its 1967 protocol relating to the status of refugees, 7 May 2002, HCR/GIP/02/02. https://www.ref world.org/docid/3d36f23f4.html. Accessed 1 Nov. 2020. UNHCR. (2011). UNHCR Resettlement Handbook 2011, July 2011. https://www.refworld. org/docid/4ecb973c2.html Accessed 1 Nov. 2020. UNHCR. (2017). Vulnerability assessment of Syrian refugees in Egypt 2017. https://www. unhcr.org/eg/wp-content/uploads/sites/36/2019/09/EVAR2017-2019-Online.pdf. Accessed 1 Nov. 2020. UNHCR. (2019). Global trends: Forced displacement in 2019. https://www.unhcr.org/be/ wp-content/uploads/sites/46/2020/07/Global-Trends-Report-2019.pdf. Accessed 1 Nov. 2020. Valentine, D. E., & Knudson, J. (Eds.). (1996). Mistrusting refugees. University of California Press.

Whose Vulnerability? EU Identity Formation Processes and the Risks of Migration Julia Simon 1

Introduction

In the field of migration, it is shown to us most plainly and drastically that the formation and assigning of identities to groups of humans is not merely an abstract theoretical issue but one that directly relates to the lives, the dignity and potentially the suffering of individuals. As assigned identities constitute the basis for official policies as well as for citizens’ acceptance of these policies as adequate and legitimate, the processes of shaping them necessarily has a political and power-related core. It is thus an important task for scholars to shed light on the political quality of identity constructions and to study how they are shaped and drawn on to justify policy measures and decisions. In significant portions of European public as well as International Relations (IR) discourses of the past two decades, the identity of migrants1 from the global South has been marked as a ‘threat’. The underlying traditional exclusionary logic thereby reinforced the idea of there being only two possible (and static) reference objects of security: the state (or the EU) and the respective society (Huysmans, 2000; Léonard, 2010; Wæver et al., 1993). This logic thereby conceptually omitted a third possible reference object that is proposed by the concept J. Simon (B) Fakultät Für Wirtschafts- Und Sozialwissenschaften Institut Für Politikwissenschaft, Helmut-Schmidt-Universität, Hamburg, Germany E-Mail: [email protected] 1

In this contribution, I consistently use the term migrants as an umbrella term for mobile humans with different experiences and statuses without imposing any categorical legal, political or moral distinctions. © The Author(s), under exclusive license to Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2021 N. Fromm et al. (eds.), Power in Vulnerability, Studien zur Migrations- und Integrationspolitik, https://doi.org/10.1007/978-3-658-34052-0_3

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of human security (Kaldor, 2007; cf. Doty, 1998, pp. 78–79) and also side-lined aspects of a more inclusive logic of differentiation that states empirically also regularly display, e.g., in naturalisation processes (Doty, 1996, p. 179). More comprehensively capturing the complexities and ambiguities of (forced) crossborder movement, Aradau, by contrast, identified both the ‘politics of pity’ and the ‘politics of risk’ in the EU’s approach to tackle human trafficking of women for sexual exploitation. She thereby pointed to the tension resulting from two different identities that are assigned to trafficked women simultaneously—and to the serious problems resulting from ultimately privileging the one that is based on an exclusionary logic. Taking into consideration the ongoing humanitarian catastrophe in peripheral EU Member States that recently broke into the news cycle due to the devastating fire in the overcrowded Moria camp, her conclusion that “[i]f both pity and risk are governmental technologies, the symptomatic presence of risk subverting the logic of a politics of pity requires further interrogation” (2004, p. 276) is today more relevant than ever. Taking the European Commission (EC)’s migration discourse as an empirical example case, this contribution answers this call in three regards. Firstly, it disentangles and studies the different relevant strands within the Commission’s discourse which activate the notion of ‘risk’ in different forms as the basis for identity constructions of the ‘migrant Other’. Secondly, it takes into consideration how these identity constructions simultaneously co-produce different identity features for the ‘EU Self’. This is done by building on the relationship between the concepts of risk and vulnerability. Following Burghardt et al. ’s, (2017, p. 12) understanding of vulnerability as the possibility of becoming harmed or injured, it is closely interwoven with the concept of risk; it requires the definition of a vulnerable reference object as well as of vulnerant or risk factors. Thirdly, by scrutinising the genuinely political quality of the processes of defining and negotiating identity constructions as the legitimising basis for policies, this approach allows to trace contradictions like the fact that while the grave risks that migrants are exposed to have been acknowledged on EU level, key elements of the current EU approach have rather exacerbated their vulnerability. Placing the Commission’s discourse in the context of the broader and dominant EUropean2 discourse subsequently allows to reflect on the issue as to how rather exclusionary identity constructions are privileged in the field of Euro-Mediterranean migration. Thus, the contribution proceeds in four steps: Having demonstrated the multi-layered and complex social reality of the EUropean migration discourse 2

The spelling “EUropean” emphasises the fact that the discourse is produced by the EU’s Institution(s) and is not generally to be equated with a ‘European’ discourse.

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in section 2, poststructuralist discourse-analytical thinking that emphasises the relational quality of identities and their continuous, productive, and contested form(ul)ation is proposed as a highly suitable way to approach this complexity in section 3. Subsequently, two strands are analytically distinguished in the Commission’s discourse and they are studied with regard to how they conceptualise risk and, thus, conceive vulnerability in the context of migration (4). In the final section 5, conclusions are presented.

2

The Complexity of the EUropean Discourse on Migration…

The suspension of the deployment of EUNAVFOR Med Operation Sophia’s naval assets on which its search and rescue tasks depended, most comprehensively failed to acknowledge the existential vulnerability of migrants at sea. This suspension can be traced back to the ongoing controversy among Member States over the determination of places of disembarkation and of responsibility for incoming persons and it was clearly not unchallenged within the EU. Official EU discourse participants like the European Parliament (EP) “call[ed] for the redeployment of naval assets and full implementation of the mandate” (EP, 2020, Sect. 53; cf. also EC, 2019b, p. 15). Read in connection with its earlier recognition of “the positive role played by navy vessels in saving lives at sea and in disrupting criminal networks”, its focus was on “the need to protect life” (EP, 2016, Sect. 9). Similarly, the Commission criticised Member States’ lacking or only patchy and ad hoc cooperativeness regarding disembarkation and stressed “the need to find European solutions for a sustainable approach to migration management, based on solidarity, common responsibility and respect for fundamental rights” (EC, 2019b, p. 10). Nevertheless, the Council terminated Operation Sophia and provided its successor, Operation Irini, with a mandate in which search and rescue tasks were not included (cf. Council, 2020, Art. 1–4). Even more, responding to the ‘concerns of some EU Member States’,3 a mechanism was introduced through which the operation was to be re-authorised every four months; it was to be prolonged “unless the deployment of maritime assets of the operation produces a pull effect on migration” (Council, 2020, Art. 8(3)). This most sharply contrasted with the 3

See the brief report published on 07 May 2020 on the launch of operation Irini on the homepage of the German Foreign Ministry, https://www.auswaertiges-amt.de/de/aussenpol itik/europa/aussenpolitik/irini-libyen/2330224. Accessed: 13 August 2020.

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assertion priorly made by the Commission and the High Representative (HR) with a view to Operation Sophia that the “EU maintains its humanitarian imperative to save lives at sea” (EC/HR, 2017, p. 6).4 The ongoing inner-EUropean struggle over the issue of disembarkation exemplifies the internal complexity and ambiguity of the EUropean migration discourse that needs to be theoretically reflected upon.

3

…and an Adequate Theoretical and Analytical Framework for Approaching It

From a positivist perspective, such a phenomenon is regularly attributed to a practice/discourse divide which assumes the existence of two separate, categorically different levels: One being the ‘practical level’ of actions, hard law and policies and the other being the ‘discursive’ one on which ambitions, intentions and policy objectives are expressed in a more abstract or merely declaratory and inconsequential form. Yet, the presumption of a categorical division between the two levels, which entails the potential of a discrepancy between them that is often taken as an explanation for tensions and ambiguity, is unable to shed light on important socio-discursive processes underlying such a phenomenon. Post-positivist and non-foundationalist approaches like poststructuralist discourse theory, by contrast, enable us to study these processes on the basis of a transgression of such fixed a priori oppositions between world/word or practice/discourse (cf. Epstein, 2008, p. 6; Laclau & Mouffe, 2001, p. 108). Arguing that there is no extra-discursive ‘level’ or world, they highlight the primal and productive role of language in the construction of social reality. The famous Derridean quote “il n’y a pas de horstexte” (1976, p. 158; cf. also Foucault, 1972) succinctly summarises the basic principle of this (heterogenous) school of thought. The above introductory example rendered the complexity of the EUropean discourse visible. It demonstrated that an a priori understanding of ‘the EU’ as a unitary discourse participant is problematic5 because its institutions constantly interact and renegotiate perceptions of situations and problems as well as claims to define, form(ulate), represent and articulate into effect a specific EU identity 4

As of September 2020, no Progress Report on the Implementation of the Agenda on Migration has been published in 2020 which would have been able to cover Sophia’s replacement. 5 This observation is not EU-specific but also holds true with a view to (democratic) nationstates encompassing a range of different official discursive voices.

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through governmental activity. Distinguishing between such (potentially contesting) discursive layers, the study of discourse provides access to the complexity of the way the broader EUropean discourse on migration is produced. The specific meanings and identities that are (temporarily) fixed as dominant in this discourse constitute political and power-related products which are confirmed and stabilised or challenged and possibly modified in continuous intra-EUropean discursive struggles. In EU studies, the ‘migration crisis’ is currently predominantly being studied from an (often implicitly) intergovernmentalist perspective that privileges Member States as the only or most relevant discourse participants. Yet, this contribution holds that due to its formal competences including the right of initiative as well as its many non-legislative instruments and (agenda-setting, reporting, and managerial) functions, the Commission also constitutes a relevant object for discourse analysis. The fact that the individual EU institutions, in turn, cannot be presumed to be unitary, coherent, and stable entities (instead of merely constructing a representation of themselves as such) adds to the complexity of EUropean discourse.6 It is thus relevant to zoom in on the respective discursive layers—in this case the one articulated by the Commission—and to study the different strands which constitute it. This contribution does so with a focus on the identity-shaping elements these strands entail with a view to the EU as their frame of reference. Zooming in on the Commission’s layer of EUropean discourse between 2011 and 2019, the analytical focus will be on how ‘migrants’ were related to the notions of risk and vulnerability in discursive practices of identity form(ul)ation. The form(ul)ation of identities is a key pillar in the construction and ordering of social reality. Just like meaning-making in Western contexts more broadly, these form(ul)ation processes rely on contingent hierarchised relations of alterity (cf. e.g., Connolly, 1991, p. 9). Poststructuralist-inspired conceptualisations of identity thus shift the analytical attention to the underlying identity (and power) relations between the Self and its constitutive ‘outside’ or ‘Other’. They are thus ideally suited to contribute to the study of vulnerability as a relational concept, as this edited volume set out to do (Göttsche in this volume). When repeated and institutionalised in and through discourses, relational identities can become fixed and even naturalised as priorly existing, autonomous Self and Other. Through the regularity they provide for continuously articulating identities into existence, discourses can be understood as “practices that systematically form the objects of which they speak” (Foucault, 1972, p. 49). Yet, such repeated 6

Footnote 3 also clearly underlines this with respect to the Council.

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acts of defining and assigning identities to Self and Other that make them socially intelligible are never neutral; they need to be understood as genuinely political practices that are always related to power. In Foucauldian thinking, knowledge and power relations are inextricably linked (Foucault, 1980) and their productivity can be studied in and through discourses. A variety of hierarchised differentiations between the EU and the social category of ‘migrants’ can be identified to have been productively applied in the Commission’s discourse to justify specific governmental activities, instruments or infrastructures. Besides the notion of threat which is, in fact, hardly ever evoked by the Commission in this regard, the conceptual framework of risk has been highly significant. It is therefore in focus in this contribution.

4

Risks and Cross-Border Movement: Defining the Other, Defining the Self

Linked to the concept of vulnerability set out in Burghardt et al. (2017), the study of identity relations in the conceptual framework of ‘risk’ requires identifying two elements in the Commission’s discourse: the relevant reference object as well as the specific risks or vulnerant factors that bring forth, exacerbate, or actualise the reference object’s vulnerable disposition on the basis of their potential to inflict (physiological, psychological, social, etc.) harm. Furthermore, an emphasis will here be put on the question whether notions of empowerment and resilience are connected to the way vulnerabilities are perceived and addressed by the Commission. On this backdrop, two broad discursive strands can be distinguished depending on whether or not ‘migrants’ are conceptualised as the vulnerable reference object. Each of these two strands is furthermore differentiated on the basis of the perceived geographical localisation of the migrants addressed by the policies (within or outside the EUropean space).

4.1

The Human-Centred Strand of Discourse: Migrants as Vulnerable Reference Objects

4.1.1 Vulnerable Migrants in the EU’s External Sphere In this discursive strand, the Commission conceptualised factors like authoritarianism, social injustice, poverty, repression, fragility, conflict and violence as practically immanent to the EU’s South(East)ern ‘anarchic outside’ (cf. e.g.

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EC/HR, 2015, p. 7, 2017, p. 2, 2011a, 2011b). These conditions were understood to constitute a context in which the vulnerable disposition of individuals was practically permanently actualised. In the wake of the ‘Arab Spring’, not only but especially in Libya and Syria where these factors have even escalated into civil wars, they caused large-scale cross-border movements within the region and towards Europe. On this backdrop, the Commission (and the HR) acknowledged the “plight of refugees and the problems that push people to leave their countries” (EC/HR, 2015, p. 12; cf. EC, 2015a, p. 10) and perceived (forced) migrants as human life in need of protection. Over time, the conditions in the states receiving those seeking shelter and livelihoods were documented to also be deteriorating, which in turn greatly exacerbated the particular vulnerability of (forced) migrants: the lack of migration and asylum systems and thus of access to protection and basic support exposed migrants to hardship, instability, discrimination and exclusion and it perpetuated situations of lacking prospects and durability (cf. e.g., EC, 2014a, p. 17–18, 2013a, p. 8, 2019a, p. 16). Regularly, additional grave risks included exploitation, abuse, human rights violations, or abduction (EC, 2014a, pp. 17–18, 2013a, p. 8). Such high-risk conditions for migrants were even aggravated in the system of arbitrary detention in Libya in which migrants continue to be subjected to “torture and inhuman treatment” (EC, 2018c, p. 11; cf. EC, 2013a, p. 7) and are being denied access to basic (human rights) protection, medical assistance, and even food (EC, 2018c, p. 11, 2016d, p. 15). This violence against migrants is furthermore embedded in a profoundly unstable political context of internal fights for power. Recent violent clashes in and around Tripoli, in turn, have “had a particular impact on migrants and refugees” especially as a detention facility in the conflict zone “was hit by air strikes, causing over 50 deaths” (EC, 2019b, p. 9; EC/HR, 2017, p. 9). While the Commission’s descriptions show that these circumstances generally increase the vulnerability of all persons identified as ‘migrants’, it regularly specified “vulnerable categories of persons” (EC, 2011c, p. 9) to mean for example unaccompanied minors or women (EC, 2011c, p. 9, 2014b, p. 7, 9, 2011a, 24; EC/HR, 2017, p. 4), which potentially essentialises vulnerability instead of focusing on the specificities of risk factors in the political and social environment affecting or targeting these persons. Yet, overall, the representations of migrants as vulnerable persons in need of protection in the high-risk environment of the EU’s ‘outside’ consistently corresponded to the mirror image of the EU as being needed to promote such protection

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and to mitigate the risks migrants are facing. This perception set the EU in marked contrast to the respective partner states who were unwilling and/or, due to overwhelming demand, unable to do so. This EUropean identity was thus reproduced by and, in turn, is drawn on to justify several policies and initiatives aiming to diminish migrants’ exposure to the harmful conditions described above. The Commission for example especially emphasised (1.) the continued engagement with the Libyan authorities to end arbitrary detention and “to ensure that the conditions in centres for migrants are improved, with a particular attention to vulnerable persons and minors” (EC/HR, 2017, p. 11; cf. EC, 2019b, p. 10), (2.) the organisation of evacuations of migrants from Libya and the provision of assistance for voluntary returns to their countries of origin (EC, 2019b, p. 9; 2011c, pp. 3–4; EC/HR, 2017, pp. 9–10) and (3.) the allocation of financial assistance and humanitarian aid which in 2019, according to the Commission, “has reached some 700 000 of the most vulnerable people affected by the conflict” in Libya (EC, 2019a, p. 6). The EU Trust Fund for Africa (EUTFA), the EU Regional Trust Fund in Response to the Syrian Crisis and the Facility for Refugees in Turkey were highlighted as further relevant instruments in this regard (EC, 2019a, p. 16, 2019b, pp. 4–7, 2015b, p. 8). In order to address the risks of instability and lacking predictability for migrants, the EU furthermore sought to improve the provision of protection— in the more provisional form of (4.) Regional Protection Programmes (RPP) (EC, 2015b, p. 5, 2013b, pp. 13–14, 2013a, p. 12) as well as more structurally through (5.) the development of (the legislative, institutional and administrative prerequisites for) asylum and migration systems which would “provide lasting prospects close to home for refugees and their families” (EC, 2016d, p. 2, emphasis added; cf. EC, 2013a, p. 3, 2016d, p. 6). Lastly, (6.) resettlement was represented as “a key protection tool” (EC, 2017b, p. 18; cf. 2011d, p. 15, 2015b, pp. 4–5) at the EU’s disposal. Following the Commission, the rationale of several of these instruments explicitly includes the objective to reduce the vulnerability of migrant individuals by strengthening their agency and resilience. In this vein, the provision of development aid and humanitarian support was for example to be designed in a way that led from “[a]id-dependence to Self-reliance” (EC, 2016e, p. 1, emphasis removed). Focusing on Jordan, Lebanon, Turkey, and Iraq, the EU Regional Trust Fund for Syria was also explicitly oriented towards strengthening “the self-reliance and resilience of refugees” (EC, 2019b, p. 7) through the creation of economic opportunities or education. Similarly, as the Commission highlighted, those projects implemented under the Global Approach to Migration (GAMM) which aimed to protect migrants from abuse and human rights violations put an emphasis on

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more sustainably “empowering them through effective integration policies and promoting access to basic services such as healthcare” (EC, 2014a, p. 17). This pattern of promoting more durable solutions for and “local integration” of (forced) migrants and displaced persons has also specifically been applied in Libya (EC/HR, 2017, p. 10). The simultaneously stressed, decidedly local and regional focus in the objective of “foster[ing] the resilience and selfreliance of forcibly displaced people as close as possible to refugees’ country of origin” (EC, 2016d, p. 4, emphasis modified; cf. EC, 2016e) was thereby explained as a risk-mitigating effort “enabl[ing] migrants and refugees to stay close to home and to avoid taking dangerous journeys” (EC, 2016d, p. 6).

4.1.2 Vulnerable Migrants Transgressing the Inside/Outside Boundary Many perceive cross-Mediterranean journeys as the only way to finally escape the described conditions that continue to increase the vulnerability of individuals in general and migrants in particular—especially as the implementation of resettlement (as the only one of the above-listed risk-mitigating measures that does not limit the cross-border movement of those in need of protection to the external sphere), continues to fall short of the current demand by a wide margin.7 Outside of resettlement schemes, however, these journeys temporarily increase the risk for migrants to the maximum. Conceptualising migrants as vulnerable reference objects, the Commission argued that eliminating this existential risk constituted “an essential part of the European Union’s effort to save lives and prevent the exploitation of migrants” (EC/HR, 2015, p. 10, emphasis removed). Strikingly, it thereby focused primarily on another ‘external’ group it identified as mainly responsible for “putting the migrants’ lives at risk” (EC, 2015c, p. 1): human smugglers who “contribute to the instability in the country by their actions and human rights violations, thereby increasing the vulnerability of migrants” (EC/HR, 2017, p. 2) and who “seek to benefit from the desperation of the vulnerable” (EC, 2016d, p. 2). The reinforcement of judicial and law enforcement cooperation among countries of origin, transit and destination (EC/HR, 2015, p. 10; EC, 2015b, p. 9, 2015c, pp. 2–4) as well as capacity-building and training programmes to strengthen the Libyan Coast Guard (EC/HR, 2017, p. 8) were subsequently presented as 7

For most recent data refer to the ‘UNHCR Projected Global Resettlement Needs 2021’. The report can be found at https://www.unhcr.org/protection/resettlement/5ef34bfb7/projec ted-global-resettlement-needs-2021.html. Accessed: 31 August 2020.

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measures to address this acute risk (but cf. Sect. 4.1.1.!). Moreover, the patrolling activities of Operation Sophia were also repeatedly represented as part of a protective EU approach vis-à-vis vulnerable migrants (EC/HR, 2017, pp. 5–6, 2015, pp. 10–11). In addition, the Commission’s discourse showed that the vulnerable disposition that migrants’ ‘irregular’ mode of cross-border movement (which continues to be the only major form available even to persons whose protection needs are later officially recognised in the EU) is perceived to produce for migrants, persists in several forms even after arrival in Europe: Not only do “persons who start their journeys in a voluntary manner [continue to be] also vulnerable to networks of labour or sexual exploitation“ (EC, 2015c, p. 2), those without legal status and related protection and assistance also “easily fall prey to exploitation” in irregular employment situations (EC, 2015b, pp. 7, 9, 2016a, p. 18, 2013c, p. 6, 2013c, p. 6), especially in “high-risk economic sectors” in the EU (EC, 2017b, p. 9). But even ‘regular’ and long-term immigrant residents continue to be exposed to the risks of precarity and marginalisation in Europe; the “risk of falling into poverty or social exclusion”, and of being unemployed or overqualified for the occupation they hold are significantly higher for “foreign born people“ (EC, 2013b, p. 8). Even cross-generational effects have been recorded (cf. EC, 2013b, p. 8; 2011b, p. 3). Moreover, in 2019 the Commission noted that “people from ethnic or racial minorities in the EU experience higher risks of economic hardship, poor quality housing, residential segregation, unemployment, and assault” (EC, 2019c, p. 1). A range of measures addressing these factors perpetuating migrants’ vulnerable dispositions within Europe again reproduced the EU as a protective entity. This included (non-)legislative instruments through which the Commission promoted the improvement of the integration of third-country nationals (EC, 2011b, 2016f) as well as the the Member States and de facto adherence to the principles of equal treatment and non-discrimination based on the ‘Racial Equality Directive’ (Directive 2000/43/EC) or the ‘Employment Equality Directive’ (Directive 2000/78/EC; cf. EC, 2019c, pp. 2–3). Furthermore, the ‘Single Permit Directive’ (Directive, 2011/98/EU) was argued to explicitly aim to “counteract social dumping and exploitation of thirdcountry workers in the EU” (EC, 2014c, p. 14). The Commission also especially highlighted the role of the ‘Employer Sanctions Directive’ in this regard: Instead of merely penalising irregularly-staying migrants, it rather “reduce[s] legal ambiguity” for them and “focuses on employers who abuse migrants in vulnerable situations” (EC, 2013c, p. 6).

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The Border-Centred Strand of Discourse: Migrants as Risk Bearers

4.2.1 Migratory Risks to the Fixed Order This section studies the way how a competing strand in the Commission’s discourse rather organises the identity relationship between ‘migrants’ and the EU around the notion of risk in a way that presents the stability of the modern territorialised spatial order as a relevant reference object. In this perspective, the collectivised transnational migrants themselves—in a semi-depersonalised manner characterised as “significant refugee flows” (EC/HR, 2011b, p. 13) or “huge inflows of displaced persons” (EC, 2011c, p. 3)—were considered to carry the risk of aggravating and geographically spreading instability, disorder, and unsustainable living conditions in many states in the EU’s neighbourhood (EC/HR, 2011a, p. 3, EC, 2011c, p. 3). They were perceived as a “strain” (EC, 2011c, p. 4) and “enormous political, economic and social pressure on these countries” (EC/HR, 2015, p. 4), overburdening their infrastructures and capacities (EC, 2015b, p. 5, 2016d, p. 6). This issue was increasingly represented as a direct distributional conflict over scarce resources and basic public services (cf. EC, 2018c, p. 8, 11, 2016d, p. 13; EC/HR, 2015, pp. 4–5). The Commission stressed that “[p]opulations that remained in their communities of origin, while others were forced to move, may also be vulnerable” and criticised the traditional design of humanitarian assistance from which “vulnerable host communities usually do not benefit” (EC, 2016e, p. 4). Even more, the vulnerability of the ‘native’, sedentary societies was considered to be directly intensified by the presence of migrants (cf. EC, 2016d, p. 6, 2013c, p. 3). Relatedly, the concern emerged that the migratory ‘flows’ crossing the region could become self-multiplying if resulting conflicts and/or the persisting general instability caused secondary displacements or triggered resident populations to join northward migratory movements (cf. EC, 2016e, p. 4, 2011c, p. 4). Several EU policies were thus primarily justified as means to countering these risks perceived to be posed by migrants, which continued to co-produce the related identity of an EU protecting or stabilising vulnerable states, ‘their’ societies, and the order they represented. In this regard the EU, firstly, provided financial support and capacity-building measures to strengthen the partner states’ ability to ‘manage’ movement. This included the development and reinforcement of integrated border and migration management capacities to control and limit further arrivals especially through the Southern borders of states like Libya or Morocco (EC, 2017c, p. 11, 2019a, pp. 5, 13, 2018d, p. 14; EC/HR, 2017, p. 12).

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Moreover, EU policies also directly addressed these host societies. The Partnership Framework’s cooperation compact with Lebanon for example comprised assistance enabling “an upgrade of basic services (waste management, water, education and health), as well as increased economic opportunities in Lebanon for both the Syrian refugees and the most vulnerable Lebanese communities” (EC, 2016d, p. 13). Similar projects promoting local economic integration and “community stabilisation in areas affected by internal displacement and transit of migrants” (EC/HR, 2017, p. 10) were assumed to mitigate conflicts and prevent the risk of secondary displacements in Libya as well. The objective to sustain “the livelihoods [sic] capacities of refugees and vulnerable host populations” (EC, 2014d, p. 5, emphasis added) also underlay the reinforcement of the (now) Regional Development and Protection Programmes.8 The developmental components of these measures were argued to be reducing vulnerabilities by strengthening and “support[ing] the resilience of local communities hosting migrants” (EC/HR, 2017, p. 11; EC, 2018c, p. 11, 2019b, p. 7). Even though the Commision acknowledged that only a comparatively small proportion of migration actually continues towards the EU (EC, 2013c, p. 3; EC/HR, 2015, pp. 2–5), the logic of ‘transit migration’9 and the perception of a high and immediate affectedness of the EU by these migratory risks to the fixed spatial order and the sedentary populations underlay this strand of discourse. The above measures addressing vulnerable state structures and host societies were clearly linked to the objective of limiting (the risks) of movement to the politicoterritorial ‘outside’ of the EU. This became most evident when the Commission announced “more financial assistance for capacitybuilding, the protection of vulnerable groups and socioeconomic support to migration-prone groups” in Egypt, explaining that “[t]his engagement should be further stepped up in view of the increasing migratory flows departing from Egypt on the Central Mediterranean route” (EC, 2016d, p. 16, emphasis added). In fact, it was even noticeable in the ‘protective’ strand of discourse, for example when the Commission stressed that the creation of protection and asylum systems was considered in view of how “this can lead to the application by the Member States of the safe third country principle in the asylum acquis when conditions are met” (EC/HR, 2017, p. 11).

8

Projects directly “supporting refugees and host communities” by providing basic services to them have also been funded under the EU Regional Trust Fund in Response to the Syrian Crisis and the EUTFA (EC, 2016d, p. 10; cf. 2018c, pp. 8, 11; EC/HR, 2015, pp. 4–5). 9 This logic assumes an inherent “intentionality to migrate to Europe“, perceiving the latter as being the only ‘logical’ final destination migrants could strive to reach (Düvell et al., 2014, p. 14).

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4.2.2 Migrants as a Risk Factor in the EUropean Space Following the Commission, migrants can also present a risk specifically to the territorialised political and social entity of the (Schengen-)EU, as a collective and also as individuals. When collectivising migrants, the Commission firstly focused on the multitude of persons (potentially) crossing EU borders when pointing to the “risk of mass irregular arrivals” (EC, 2017d, p. 6). Secondly, the perceived suddenness and unpredictability of their arrival, also with a view to shifting routes or places of arrival (through which “a section of the external border considered as low risk can quickly become subject to critical migratory pressure”, EC, 2011d, p. 7, cf. 2013a, p. 19, 2018d, pp. 1, 19) was at the core of this conception of risk. In this perspective, notably, borders themselves can become defined as the vulnerable reference object, which the Commission underlined when explicitly referring to the “vulnerability of some sections of the EU’s external borders […], notably in the Southern Mediterranean and at the land border between Greece and Turkey” (EC, 2011d, p. 4). Among the measures taken on EU level which were justified by the objective of reducing this particular risk, the mandatory ‘vulnerability assessments’ of the external borders terminologically most closely relate to this perspective. As a preventative measure that was added to the regular Schengen evaluation mechanism in 2016, the European Border and Coast Guard (EBCG) now annually evaluates the “technical equipment, systems, capabilities, resources, infrastructure, adequately skilled and trained staff of Member States necessary for border control” (Regulation 2016/1624, Art. 13; cf. EC, 2017d, p. 5). The issue of lacking predictability has also been addressed for example by tasking the EBCG to “monitor migratory flows and carry out risk analysis as regards all aspects of integrated border management” (Regulation 2016/1624, Art. 8(1a)),10 which includes a special focus on “risks that may affect the functioning or security of the Schengen area of free movement and its external borders” (EC, 2017d, p. 5). Thereby, the relevant geographical area to be covered was broadened to include observations of “the situation in neighbouring third countries with a view to developing a prewarning mechanism which analyses the migratory flows towards the Union” (EC, 2015d, p. 27, emphasis added; cf. Regulation 2016/1624: Art. 11(1), 11(3)). 10

Paragraph (3) of this regulation described the European integrated border management to be “based on the four-tier access control model, compris[ing] measures in third countries, such as under the common visa policy, measures with neighbouring third countries, border control measures at the external borders, risk analysis and measures within the Schengen area and return.“

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Moreover, the role of the European Border Surveillance System (Eurosur) has continuously grown since its launch in 2013. The geographical expansion of the application of this form of spatial surveillance and the widening of its scope (now also encompassing most of the components of the European integrated border management system) were thereby expected to enable Eurosur to “provide an exhaustive situational picture at the external borders but also within the Schengen area and in the pre-frontier area. It should cover land, sea and air border surveillance but also checks at border crossing points” (EC, 2018a, para. 28; EC, 2017d, p. 5; Regulation 2016/1624: Art. 11(1)). Besides the production of own data by Member States and EU agencies, the Commission also promoted a reinforced cooperation and information exchange with third countries on border and maritime surveillance so as to increase the EU’s preparedness, for example through the Eurosur Fusion Services (EC/HR, 2017, pp. 8–9; EC, 2018a, p. 9). Furthermore, the Commission located a risk potential on the level of the individual. Migrants whose movement or presence in(to) the EU were defined as ‘irregular’ or ‘illegal’ were understood to constitute a general risk to the legal, administrative, and social order of the EU as they exposed the always incomplete enforceability of borders and laws which regulate the presence and movement of individuals. Furthermore, migrant individuals can also be categorised as posing an even more serious serious ’security risk’. A detailed explanation of what that entails is often missing. With a view to preventing individual-level risks regarding entry into the (Schengen-)EU, the Commission firstly highlighted the EU’s common visa policy as “a key tool to prevent security risks or risks of irregular migration to the EU” (EC, 2017b, p. 15; 2015b, pp. 15–16). A further, priorly “missing layer of information and risk assessment on visa free visitors” (EC, 2016c, p. 2, emphasis added) was to be provided through the introduction of the European Travel Information and Authorisation System (ETIAS) (EC, 2016c, p. 2; cf. 2017d, p. 7; 2017b, p. 11). The 2015 ‘Hotspot approach’ moreover minimised possible (security) risks by strengthening Member States’ abilities to (pre)identify, screen, fingerprint and register every arriving person (EC, 2017b, p. 12, 2018c, p. 9, 2015b, p. 6). In addition to risks related to the crossing of external borders, the risk of secondary movement gained great relevance in the context of the ‘migration crisis’; the Commission repeatedly emphasised that significant secondary movements of unregistered migrants had led to the reintroduction of internal border controls in the fall of 2015 and thus “put the functioning of the entire Schengen area at risk” (EC, 2017d, p. 3, 2015d, p. 2).

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This was partly addressed by the reinforcement of the external borders and the integration of ‘secondary movement’ into the EBCG’s spatial monitoring and its risks analyses, as noted above. But the individual-level ‘risk of absconding’ (Directive 2008/115/EC, Art. 3(7)) as a form of secondary movement continued to be perceived as a problem to the effectiveness of return policy, which could harm the (credibility of the) EU legal framework governing movement and asylum as such.11 As a result, the Commission also promoted (the transformation of) the existing informational infrastructure and technology for individual surveillance that can provide “timely information on the identity and legal situation of the third-country nationals concerned” (EC, 2017a, p. 6). While neither system was originally created to be employed for return purposes, the Schengen Information System (SIS) and the European Asylum Dactyloscopy Database (Eurodac) are especially relevant in this regard. Having originally been designed to support the administration and allocation of asylum procedures under the Dublin Regulation, Eurodac’s purpose to identify via fingerprinting persons seeking international protection was now extended to generally capture and store data on “non-EU nationals found irregularly staying in the EU” (EC 2018b, p. 15; 2016b, pp. 3–4). As “a means to accelerate the identification and re-documentation of migrants” (EC, 2016a, p. 9) and thus to enable a closer monitoring of migrants’ movements within the EU, the revamped Eurodac system was also envisioned to allow “national authorities to carry out a more accurate individual assessment of the situation of irregular migrants, for instance on the risk that they may abscond” (EC, 2016b, p. 3). Thus providing knowledge based on which authorities may take measures—including detention (Directive 2008/115/EC, Art. 15(1))12 —to prevent absconding, Eurodac was expected to significantly contribute to “enhancing the effectiveness and speed of return and readmission procedures” (EC, 2016a, p. 9). Over the past years, the Commission already repeatedly stressed the usefulness of SIS’ ability to centrally store all return decisions, which “should make it possible to track an individual trying to evade a return order by moving to another Member State” (EC, 2015e, p. 6; cf. EC, 2016a, p. 9, 2018b, pp. 14–15). In 2015 it furthermore proposed “changes to the SIS to enhance its use for the return of irregular migrants” (EC, 2015e, p. 6, emphasis removed) and three regulations aiming to comprehensively “widen the scope of application and functionalities of

11 12

This was already a concern in EC, 2011e, pp. 7–9. The maximum length of such a ‘pre-removal detention‘ is 18 months, cf. Art. 15(6).

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SIS” (EC, 2020, p. 1) with a view to the fields of border checks and return were subsequently passed in November 2018.13 While still continuing to develop and expand the above tools, the Commission perceived them to be successfully “contribut[ing] to reducing the risk of mass irregular arrivals and also secondary movements within the Schengen area” (EC, 2017d, p. 6). On the backdrop of the perception of a particular vulnerability of the EU’s external borders, especially the significant reinforcement of the EBCG in 2016 was, notably, understood in terms of “making EU external border management more resilient to new challenges” (EC, 2017d, p. 5, emphasis added).

5

Conclusions

This contribution built on a poststructuralist discourse analytical perspective to make sense of the complexity of the EUropean discourse on migration by exemplarily studying the tensions and ambiguities of the discursive layer issued by the Commission. Having studied the way that relational identity constructions between the EU and ‘migrants’ were specifically organised around the notions of vulnerability and risk in the Commission’s migration discourse, the following conclusions can be drawn: Firstly, it was confirmed that since 2011, the concept of risk has consistently been relevant in the productive organisation of the relational identities of the EU Self and the migrant Other. Based on practices of hierarchical differentiation below the level of absolute difference that relates to the notion of threat, these identities were drawn on to explain and justify specific EU policies and instruments which, in turn, reaffirmed and stabilised the respective ascriptions of identity. Secondly, perceived ambiguities in EU migration policy are often (mis)understood to merely constitute an inconsistent approach or a divide between declarations of intent and the reality of implementation. Yet, in this empirical case it was shown that such tensions rather structurally stem from competing discursive strands which simultaneously produce different identity relationships and perceptions of situations or problems and subsequently define as necessary and appropriate different policy measures and options for governmental action. 13

These are Regulations (EU) 2018/1860, 2018/1861 and 2018/186 which, after three successive implementation phases, are expected to be ready for entry into operation by the end of 2021 (Com, 2020, p. 1).

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Two discursive strands, each form(ulat)ing a particular EU Self vis-à-vis migrants, could be identified in the Commission’s representations. In the first, human-centred strand of discourse that conceptualised migrants as a vulnerable reference object, the EU was co-produced as a needed protective entity. This identity relationship was drawn on and reproduced through policies that aimed to mitigate migrants’ exposure to risks—posed either by violence, hardship, and distress outside the EUropean space or by exploitation, marginalisation, and discrimination within Europe. While building on an inclusive logic vis-à-vis migrants (which connects to the notion of human security), a hierarchical differentiation was nevertheless maintained—through the identity relationship of vulnerable individuals/generous protector and through the more exclusive one between the law-based and protective EU and the authoritarian and/or weak (host) states in the broader Mediterranean region. The second, border-centred one, by contrast, represented migrants themselves as bearing and spreading the risk of destabilising vulnerable societies, governments and (their ability to enforce) the principles of fixed borders and sedentarism. Relatedly, the EU was reproduced as a stabilising and ordering force endowed with resources and capabilities to limit, control, and manage movement in its neighbourhood. When an even more immediate affectedness by and vulnerability to these risks was perceived on the part of the EU, its governmental activities and measures productively defined migrants as external, ‘irregular’ and volatile governable objects that needed to be monitored, disciplined, and possibly excluded. Thereby, the EU was reasserted as an unambiguously bordered, effective legal order and a technologically advanced, forward-thinking governing subject that successfully countered and prevented risks, and proactively reduced its own vulnerabilities.14 Lastly, from a poststructuralist perspective, the tensions between the constructed identity relations and the specific governmental technologies they justify are neither a rare occurrence nor a (solvable) problem. Rather, they are testament to the fact that in social contexts, a complete and permanent totalisation of meaning cannot be achieved. While the presented discursive strands constantly contest each other, it can be concluded that the basic rationale of the border-oriented discursive strand was generally dominant. Some of the objectives deduced from it, like the limitation of cross-border movement to the politico-territorial ‘outside’ of the EU, were actually also being advanced in most of the risk-mitigating measures based on the human-centred perspective which, based on its own logic, would not 14

To be precise, in the Commission’s discourse, these vulnerabilities like ‘weak‘ or ‘deficient‘ external borders are actually assigned to the Member State level.

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require such a limitation. Similarly, measures described to be furthering the empowerment or self-reliance of humans in need were exclusively oriented towards increasing their ability and intention to stay within the bounds of their (host) country in the external sphere; cross-Mediterranean movement was not recognised as a manifestation of migrants’ empowerment or individual agency in responding to the constant actualisation of their vulnerability. Overall, these results have to be related to the broader EUropean discourse to which further EU institutions like the EP or the Council also contribute. As the issues of disembarkation and the EUNAVFOR operations exemplify, the intraand inter-institutional tensions and discursive struggles over meanings, policies and, relatedly, EU identity continue, even though the border-oriented rationale is currently dominant in the overall discourse. This has led to the increasing codification, institutionalisation, and stabilisation of the governmental options it justifies. So far, it has precluded a comprehensive relocation of migrants from Lesbos even in the wake of the fire in the Moria camp. Yet, as was also demonstrated, the intraand inter-institutional tensions and discursive struggles over meanings, policies and, relatedly, EU identity continue. The fact that EU identity ultimately always remains in the process of becoming and therefore in need of reproduction also means that there continue to be possibilities for change.

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Voices from Liminality: Civil Society Search and Rescue Organisations as Agents of Migration De-Securitisation Benedikt Funke 1

Development of Search and Rescue Efforts in the Mediterranean

Ever since 2011 the United Nations High Commissioner for Refugees (UNHCR) has labelled the Mediterranean as the world’s deadliest border. Due to the concentration of shipwrecks in Italian waters, the Italian Coast Guard and Navy responded to this humanitarian crisis with a large-scale mission in October 2013. With various agencies involved, operation Mare Nostrum was designed both as a Search and Rescue (SAR) and a law enforcement mission. After one year of operation and a count of more than 150,000 rescued migrants (Panebianco, 2016, p. 12), Italy experienced political pressure from EU member states that were not willing to share the mission’s expenses. This European but also domestic opposition led to the termination of the mission in October 2014 and its replacement by a Frontex1 -led follow-up mission called Triton, which ended up being widely criticised for its reduced geographical area of operation (ibid., pp. 15–17). Due to the subsequent rising number of shipwrecks, public and political pressure on the EU institutions rose again. Private shipping companies saw their ships increasingly involved in rescue operations and lobbied for a new SAR mission (Aarstad, 2015). B. Funke (B) Deutsches Museum, München, Munich, Germany E-Mail: [email protected] 1

Frontex is the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union. © The Author(s), under exclusive license to Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2021 N. Fromm et al. (eds.), Power in Vulnerability, Studien zur Migrations- und Integrationspolitik, https://doi.org/10.1007/978-3-658-34052-0_4

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The European Council decided in June 2015 to launch a joint navy mission European Union Naval Force Mediterranean (EUNAVFOR MED),2 which covered the same operational area as Mare Nostrum again. This time, however, it was designed as a military mission under the EU Common Security and Defence Policy (CSDP) that strayed from SAR operations and accentuated border control and surveillance (Vacas Fernández, 2016, pp. 102–106; Panebianco, 2016, pp. 25–27). Consequently, arrivals to Europe as well as fatalities on migratory routes remained high (Funke, 2018, p. 160; Vacas Fernández, 2016). As also described by Jan Claudius Völkel (2017), this is in line with the long-standing trend of prioritising security within EU migration policy measures, without helping the refugees or the receiving states. Even in terms of law enforcement Mare Nostrum was a more successful mission: their assets arrested 728 traffickers3 in one year (Hoffmann, 2014) while EUNAVFOR MED Operation Sophia arrested less than 60 suspected traffickers in its first year (House of Lords, 2016) and even less in the subsequent years. Although the EU launched several subsequent maritime missions, none of them was as comprehensive as Mare Nostrum: neither by the geographical coverage nor by the extent of the mandates (Vacas Fernández, 2016, pp. 98–100). Various non-governmental SAR organisations were founded throughout Europe in response to the rising death toll and a series of shipwrecks off the coast of Lampedusa following the termination of Mare Nostrum.4 While some organisations clearly describe themselves as apolitical organisations focusing solely on humanitarian assistance, others like Médecins sans Frontières (Doctors without Borders or MSF) or Sea-Watch openly share the opinion that humanitarian work cannot be separated from the causes that make their action necessary (Cuttita, 2017, pp. 9–10). These organisations clearly denounce the process of securitisation of migration, thereby playing also the role of discursive actors in addition to their humanitarian work. Thus, although all NGOs started their operations as a reaction to a humanitarian necessity, some advocated strongly from the beginning

2

In October 2015, the name was changed to Operation Sophia, after a baby girl born on one of the mission’s ships. 3 Whilst there are differences in the definition of smuggling and trafficking, regarding lawenforcement, I resort to the term trafficking here. Anyhow, it has to be acknowledged that there are both, cases of trafficked persons who are eligible to international protection, as well as persons who are smuggled under violent conditions (UNHCR, 2000). For the purpose of this article my focus lies on the underlying constraints and needs of migrants for both. 4 Heller and Pezzani (2016) identified a “SAR vacuum” after the suspension of Mare Nostrum as one driver for the rising death toll.

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against migration deterrence policies and in favour of transnational solidarity that respects universal mobility rights. From the first deployment of private ships in 2015 until today, public discourse has grown sceptical, if not downright hostile, towards these NGOs (Heller & Pezzani, 2017). A first major escalation of the criminalisation of civil society organisations carrying out SAR can be seen in August 2017. The state attorney of the Sicilian city of Trapani charged crew members of the Iuventa, a rescue vessel operated by the German NGO Jugend Rettet (Youth rescues), with aiding illegal immigration from Libya and went on to seize the vessel. As of early 2021, the action has not yet been brought before the court, but this case has been followed by numerous detentions of ships and repressions by several European authorities5 against similar organisations and associated persons. Not only are their rescue operations hindered, but they are also being categorised as criminals that jeopardise the integrity of European borders (Funke, 2018). As discursive actors who also strive for the de-securitisation of migration, SAR NGOs see their position and legitimacy considerably weakened as their activities are criminalised. By advocating universal mobility rights and challenging the concept of nation states, the more political NGOs openly criticise migrant policies and management. From 2016 on, various interior ministries of EU member states as well as other state agencies have securitised EU-bound migration in order to justify actions against civil society SAR organisations (Cusumano & Villa, 2020a; Funke, 2018). As Barry Buzan et al. (1998) explained, securitisation is the process by which political actors actively construct a phenomenon (or an object) as a threat for a referent object (that needs to be protected), even though it was originally not related to security, in order to increase public acceptance for extraordinary measures to solve the alleged danger. Migration has been constructed as a security threat for a long time already. In Europe the process of migration securitisation started with the idea of the abolishment of internal borders and the first Schengen Agreement from 1985 (Karamanidou, 2015). Migrants have been gradually discursively connected to known threats like war or terror and, consequently, people who act in solidarity with migrants—especially in the context of border crossingare portrayed as risks to national stability. This legitimises actions against both migrants and SAR NGOs. Yasha Maccanico et al. (2018) analyse the concrete situation of solidary activists in the context of migration. They describe how EU member states like Hungary, Italy, or France, but also EU institutions, criminalise 5

As coastal states, the Italian and Maltese authorities are often behind the charges, but flag states like the Netherlands or Germany have also been involved in the detention of ships (Ismail, 2018; Lüdke, 2020).

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and stigmatise migrants and human rights defenders through media campaigns, criminal proceedings, and restrictive legislation against them (ibid., p. 28). In connection with the situation of SAR NGOs in Italy, experts from the Office of the United Nations High Commissioner for Human Rights (OHCHR, 2018) similarly express their strong concerns about widespread smear campaigns creating a climate of insecurity for human rights defenders and migrants. These actions intimidate civil society organisations and can convince parts of the public opinion to look away and tolerate human rights restrictions of migrants. At the same time, it has been made increasingly difficult for asylum seekers to cross borders legally and reach safety. Policy measures like carrier sanctions,6 externalise and privatise migration control by putting the responsibility to check individual travel documents and visas on the carriers. This legislation serves to deny the individual’s right to seek asylum (Rodenhäuser, 2014). As a consequence, forced migrants increasingly need to rely on the help of smugglers (UNHCR, 2000) while policy measures fixated on the elimination of smuggling frequently disregard the pre-existing vulnerabilities of migrants and end up failing to curb smugglers activities (Carling, 2017). In the past years, SAR NGOs have been blamed as aides or even smugglers in order to stop their work, although the UNHCR (2000) clearly positioned itself against such a stigmatisation of humanitarian assistance. Smuggling markets are extremely complex and in their latest comprehensive publication on North and West African migration, the IOM (2020a) advocates a deeper understanding of smuggling and human trafficking in order to draft more adapted and humane migration policies. Simplistic generalisations neither help disrupt the smuggling business model nor improve the situation of refugees. In addition to changing the characteristics of EU maritime missions, the EU applied a strategy of externalising migration control through capacity building of the Libyan Coast Guard and expanding Libya’s responsibility by promoting a Libyan-controlled SAR area (Cusumano & Villa, 2020b, p. 203). By applying these—humanitarian framed—policies, EU institutions do not only ignore the complexity of the migration decision making process but also promote returning migrants into a war-torn country, with a long record of human rights abuse against migrants. Within the past years these developments have resulted in a present situation where institutionalised SAR operations on the main migratory routes across the Mediterranean Sea no longer take place. Forced migrants’ vulnerabilities are therefore heavily affected. 6

See Council of the European Union (2001).

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A Flawed System—Effects on Migrants’Vulnerabilities

As outlined by Sandra Göttsche in this volume, and according to Daniel Burghardt et al., (2017, p. 13), vulnerability describes the possibility to suffer from potentially vulnerant actions. The EU and member states have limited their migration and asylum policies to the reduction of arrivals by several means. As a result of this “race to the bottom” (Amnesty International, 2020a, p. 4) refugees are increasingly in a situation where their vulnerabilities are exacerbated not only by restrictive policies, but also by direct human rights violations from EU security actors. A massive escalation of repressions against NGOs could be observed when the right-wing coalition of Lega and Five Stars formed the government in Italy in July 2018. In the wake of Matteo Salvini’s first steps as interior minister, Alessandro Spena (2018) explains that there was a general inconsistency in Italian and European commitments towards a ‘humane and dignified manner’ in the treatment of refugees and their actual policies. Similarly, Göttsche (in this volume) argues that governmental measures put in place to improve the situation of migrants are often meaningless or detrimental if they do not consider the complexity of migrants’ vulnerabilities. By externalising state-coordinated SAR and migration control to Libya as well as hindering non-governmental SAR efforts in the Mediterranean, EU policies have significantly amplified the factors triggering and aggravating the vulnerabilities of migrants. Moreover, in many cases EU migration policies are paradoxical in the way that they neither improve EU’s security nor that of migrants (Völkel, 2017). Consequently, the International Organisation for Migration (IOM, 2020a) calls for research towards a better understanding of the connections between migration, vulnerability, and risks as a basis for effective protection and assistance through national and transnational policies. The following study of the effects of the criminalisation of SAR NGOs helps foster a deeper understanding of the interplay between a flawed and deficient SAR regime and migrants’ vulnerabilities. This study highlights migrants’ vulnerabilities along all aspects of vulnerabilities as described by Göttsche. Notwithstanding the overall migratory process, the crossing of the Mediterranean Sea represents a short yet highly critical part of the journey. It is one of the deadliest parts of the migratory process and implies crossing various policy regimes and jurisdictions. In order to stop SAR vessels from operating, criminal accusations were brought forward against organisations and associated individuals. Observers like Amnesty International Germany (2020) described the proceedings as highly politically motivated. Wolfgang Kaleck (2019), general secretary of the European

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Center for Constitutional and Human Rights (ECCHR) comments on the 2017 arrest of the German NGO vessel Iuventa: “The Italian Judiciary has used out of scale means of criminal prosecution and police resources for the benefit of political goals – this is exactly the constellation described as political justice by well-established critical jurist Otto Kirchheimer.”7

So far, no court confirmed the direct or indirect collaboration of these organisations with traffickers and smugglers, and these accusations have been refuted through digital forensic reconstruction of the events (Heller & Pezzani, 2017). Likewise, there is no empirical evidence for a correlation between the presence of SAR assets and departures from Libya.8 Nevertheless, European media as well as EU representatives frequently argue that the presence of SAR assets in the Mediterranean Sea constitutes a pull factor that motivates migrants to risk the perilous crossing (Heinrich-Böll-Stiftung, 2017, p. 67). This line of argument reveals an insufficient understanding of the complexity of the migration decisionmaking process. Within migration studies, the reduction to binary push and pull factors is often criticised and more complex analyses are regarded as necessary. For instance, Nicholas Van Hear et al. (2018) complicate the understanding of the migration decision-making process, including in cases of forced flight, by considering a combination of drivers, or “driver complexes” (the authors distinguish between “predisposing”, “proximate”, “precipitating”, and “mediating” factors), that can lead to a person’s migration.9 It follows that the simple criminalisation of asylum seekers turns a blind eye to the complexity of the (forced) migration process, which can be extremely detrimental to their safety. Indeed, the accusation of “aiding illegal immigration” is based on the possible conflation of refugees and economic migrants, for it is assumed that if the former resorts to the services of a smuggler, then it was no longer forced to migrate. Such a categorisation is a re-articulation of the distinction between “genuine” or “bona fide” refugees and economic migrants, which

7

Original: „Die italienische Justiz hat mit einem unverhältnismäßig hohen Einsatz strafrechtlicher und polizeilicher Ressourcen politische Zwecke verfolgt—das ist genau die Konstellation, die der kritische Jurist Otto Kirchheimer in seinem Standardwerk als politische Justiz bezeichnet.“ 8 See for example the analysis of statistical data from 2014 to 2019 by Cusumano and Villa (2020b) published by the IOM. 9 For an analysis of factors influencing migration around the Mediterranean see: Bardak (2017);

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can be seen as the primary concern of receiving countries in the latest discussions (Hassouri, 2017). On the one hand, this follows a morally charged weighing of how much an asylum seeker deserves protection in the receiving society. On the other hand, it lays the ground for the legal appraisal of the individual refugee status with numerous individual implications (ibid., pp. 12–15). It ignores, however, the assertion made by the IOM (2020a) regarding the Central Mediterranean route, that migration is frequently connected with irregular entry and calls for less penalisation of irregular migration in order to guarantee migrants’ basic rights, irrespective of their legal status. In other words, the IOM reminds migration policymakers that if the mode of entry into the destination country of a migrant was irregular, it still does not remove this person’s basic right of making an asylum claim. This legal condition contradicts the criminalisation discourse of SAR NGOs. In any case, the underlying discursive assumption completely discredits the mechanisms of the respective criminal networks based on smuggling, trafficking, forced labour and extortion (Kuschminder & Triandafyllidou, 2020). In the end, this interplay of vice-versa criminalisation of rescuers and migrants, leads to an additional stigmatisation of migrants arriving by boat. A very prominent example for this development is Australia. Through an offensive labelling of asylum seekers as boatpeople and queue jumpers in media and political rhetoric in the early 2000s the public opinion gradually developed into a less welcoming climate. This stigmatisation of refugees can be rooted down to the rhetorical reinforcement of criminal threats as well as economic opportunism attributed to refugees and their aides in the political debate (McKay et al., 2012). The discourse around migrants in Australia has been made binary in a way similar to what happens in Europe: people on the move are either seen as victims genuinely in the need of protection or as economic migrants exploiting existing asylum policies for their personal gain (ibid., p. 116).10 Parallel to the criminalisation of activists and migrants within the public discourse, various EU policy efforts were taken in order to prevent migrants from leaving transit countries. In the context of this analysis a prominent measure adopted is the capacity building and training of the Libyan Coast Guard and Navy in order to address human smuggling and trafficking across the Mediterranean Sea since 2016.11 The UNHCR and several NGOs strongly criticised the EU

10

For an in-depth analysis of the EU-Commission’s ambivalent discourse on migrants see Julia Simon in this volume. 11 See Council of the European Union (2016) and Political and Security Committee (2016).

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for this cooperation due to reported direct involvement in human rights violations (OHCHR, 2017) in addition to the fact that Libya is neither a signatory to the 1951 Refugee Convention nor the 1967 Protocol. Under the orchestration of the EU and member states, a Libyan SAR region has been established in June 2018. This allows the Libyan authorities to instruct shipmasters to disembark rescued persons in Libya, even if they are bound by international law to disembark survivors in a place of safety. Neither the EU nor Italy have clarified this issue, though they acknowledge that Libya does not qualify as a place of safety (Amnesty International, 2020a, pp. 24–25). Moreover, through their different training and support programs the EU and the member states are fostering rival groups in Libya. The military mission EUNAVFOR MED is cooperating with the Libyan Defence Ministry and the Libyan Coast Guard and Port Security while the police mission EUBAM Libya12 supports the Interior Ministry and its General Administration for Coastal Security—two opposing coast guard operations. Furthermore, various EU member states are running bilateral programs with Libya that focus mainly on the maritime security sector (EEAS, 2020, p. 19). Consequently, Libyan Coast Guard assets are intercepting and returning large shares of the people trying to flee via the Central Mediterranean. As the IOM Libya (2020) reported in 2019, 9225 Migrants were disembarked in Libya and, by July 2020, the number was already 6619 with an increased recorded number of departures. The majority of returned migrants ends up in arbitrary detention centres. This further extends the time period of liminality and transition between societies. The UNHCR (2020) estimates that 2467 refugees and migrants are currently being held in detention centres in Libya. In various instances, direct physical violence and involvement in trafficking by members of the Libyan Coast Guard have been reported by human rights groups (Amnesty International, 2020b). Three intercepted refugees were shot dead by Libyan authorities after their disembarkation in Libya at the end of July (McDowall, 2020). As a recent study by Human Rights Watch analyses, the establishment of the Libyan coast guard and their SAR Coordination Centre can be regarded as a loophole regarding the non-refoulement principle of the Geneva convention (Sunderland & Salah, 2019). Court rulings have repeatedly clarified that it is a violation of human rights to return refugees to Libya and it also abrogates their fundamental right to seek asylum (Amnesty International, 2020b). Therefore, a system has been established that builds on EU air surveillance information which is shared directly with Libyan authorities in order to enable them to intercept boats before European assets would need to conduct the rescues. Sea Watch, which operates its 12

EU Border Assistance Mission in Libya.

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own aircrafts, reported on numerous cases where nearby European state or nonstate vessels were not informed about boats in distress by EU air surveillance assets (Howden et al., 2020). Thus, the push and pull backs are orchestrated by European resources but conducted through the Libyan Coast Guard as a proxy. As a reaction to this practice there are currently four submissions at the International Criminal Court (ICC) and the European Court of Human Rights (ECHR) as well as two before Italian courts (ibid.). In the context of migration from Albania to Italy in the 1990s, Maurizio Albahari (2015) showed that assumed ad-hoc measures against a constructed threat have been put in a humanitarian framing and were institutionalised later. This has to be expected for these similarly framed policy measures regarding SAR in the Central Mediterranean, again leading to structural impairments for migrants. The described effects on the arbitrary detention, exploitation, and capacity building of militias in Libya are already pointing in that direction. The criminalisation as well as the described policy measures have influenced the individual and collective vulnerabilities of migrants. In 2020 there have been many periods without rescue assets in the Central Mediterranean. Following a series of vessel detentions in June and July 2020 there were no civil society SAR ships in the area for almost two months. According to latest figures from the UNHCR (2020) 7825 refugees and migrants were intercepted and returned to Libya between January and September 2020, 54 dead bodies were recovered, and 48 people were reported missing in Libyan waters over the same period. Under the aspect of corporality, the absence of SAR organisations led to increasing mortality rates on the Central Mediterranean route. From one death for every 40 migrants crossing the sea in 2016 (38 in 2017), the ratio sharply jumped to one death for every 14 migrants in 2018 (UNHCR, 2017, p. 7; 2019a, p. 5). This jump can be seen as a consequence of the closing of ports and detentions of SAR ships by the Italian government in 2017, but also as a result of an increasing cooperation with Libya regarding migration control and border surveillance. Although some of the actions against SAR vessels are now under criminal investigation,13 the effects on the SAR regime are lasting. The critical trend on the Central Mediterranean continued in 2019 with almost all civil society SAR assets stopped by the Italian authorities. Within the first nine months of that year, fatalities along this particular route amounted to 63% of all recorded fatalities of migrants who tried to reach Europe (UNHCR, 2019b, p. 9). 13

Matteo Salvini faces charges today for preventing migrants to disembark from an Italian Coastguard vessel as interior minister in 2019 (Tondo, 2020b); for an appraisal of legal, humanitarian, and political implications of closing Italian ports, see: Cusumano & Gombeer (2020)

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The criminalisation of rescuers contributed not only to increasing the risk of dying for migrants trying to cross the Central Mediterranean, but also to the shutting down of Italian ports in July 2018. The latter led to the de facto closure of the Central Mediterranean route, which initiated the emergence of new and more dangerous ones (UNHCR, 2018, p. 5). A rising number of autonomous arrivals14 to Italy and Malta can be related to even longer time periods spent on unseaworthy boats, connected to an excess risk to life. As the latest consequence of increased measures to intercept boats crossing the Mediterranean between Morocco and Spain, migrants have been pushed to the open Atlantic. Attempts to reach the Canary Islands skyrocketed in 2020 with about 18,000 arrivals and a minimum estimate of 500 known missing persons by November (IOM, 2020b). This observed “squeezed-balloon effect” can be seen as another detrimental effect of restrictive migration policies. The same negative effects on the risk for migrants in combination with little impact on migration control were observed when other transit routes have been closed by EU policy measures (Völkel, 2017, pp. 89–90). As a result of the pullbacks by the Libyan Coast Guard as well as the reduced SAR capacities, the process of fleeing from danger to safety is further complicated and migrants remain stuck in liminality. The traumatising state of legal limbo in Libya is extended just as prolonged stressful time periods are experienced during stand-offs on board of rescuing vessels. This increases the risk of rescue assets being stranded at sea, stuck in protracted legal and political discussions regarding a port of disembarkation.15 The longest stand-off at sea so far occurred on a commercial ship where rescued migrants had to stay on board for more than one month without adequate humanitarian treatment. The tanker Maersk Etienne16 rescued 27 people from a boat in Malta’s SAR zone on order of the Maltese Rescue Coordination Centre and was subsequently not allowed to disembark the rescued persons for 40 days (Tondo, 2020a). Finally, when reaching the European shores, refugees can face detention and criminal investigation again (Majcher et al., 2020). At the same time, the EU efforts were not able to improve migrants’ situation in Libya and detrimental structures have developed even further. Migrants leaving their home country are often entering a highly heteronomous process, especially when considering the sub-Sahara transnational smuggling networks through Libya 14

Autonomous arrivals, denoting arrivals to Italian shores without assistance of SAR assets, doubled in 2020 (Reuters, 2020). 15 In many cases mainly caused by discussions between EU member states about the allocation of migrants, depicting an ongoing lack of solidarity with the coastal states of Italy and Malta. 16 The Danish Maersk group is the largest shipping company in the world.

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and the neighbouring states. Since the overturn of the Gaddafi regime in 2011, Libyan militias built a protection market around human smuggling that helped turn migrants into a “commodity” traded by Pan-African Smuggling Consortia (Micallef, 2017, pp. 34–40). These developments also influenced coastal smuggling organisations. Under the protection of militias, the coastal regions were open for new players, facing growing demand and a shortage of vessels. They used the opportunities to scale up business by shifting towards larger and lower quality boats from 2012 onwards. The war in Syria played a role in this expansion by increasing the demand for smuggling services, which was sustained by a solid financial infrastructure (ibid., 2017, pp. 5–6). The development of these structures went together with an increasing disempowerment of migrants stuck on a “human conveyor belt” (ibid.). Since the fall of the Gaddafi regime, migrants resorting to smuggling travel on unsuitable overcrowded boats while dedicated SAR efforts have basically stopped. In addition, the structures of arbitrary detention and forced labour stay in place while options to successfully escape are being reduced. Studies by Women’s Refugee Commission and UN Libya showed that in the wake of reduced profits through the smuggling of migrants, torture and extortion have increased dramatically (Chynoweth, 2019; UNSMIL/OHCHR, 2018). In addition, the COVID-19 pandemic worked as an aggravating factor for the limitations of migrants’ abilities to reach their destination. Italian and Maltese authorities rapidly established a system of floating hotspots for refugees arriving via the Mediterranean: because of the need to quarantine, migrants were detained on passenger vessels offshore (ECRE, 2020). Later these quarantine ships were not only used for refugees rescued at sea, but also for detaining refugees initially diagnosed with COVID-19 in onshore holding centres.

3

SAR NGOs as Mediators of Migrants’Vulnerabilities

The effects of the collapse of the SAR regime on migrants’ vulnerabilities come to light in different situations of their dangerous journey across the Mediterranean Sea. Naming and understanding these different effects helps to structure the complexity of the issue and is therefore essential when trying to identify necessary societal and political measures. As Göttsche argues, it is essential to understand the construction of vulnerabilities as a basis for recognition, empowerment, resilience, and agency.

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The described measures against NGOs were part of a securitisation strategy carried out by political and security actors influencing the public discourse (Cusumano & Villa, 2020a; Funke, 2018). The analysis of security as a social construct as described by Buzan et al. (1998) has been developed further by scholars of the Paris school of securitisation. They examine how the border between internal and external security dissolves and how securitisation actors link external threats to internal security (Balzacq, 2008; Bigo, 2002). Jef Huysmans (2008) and Cetta Mainwaring (2012) depict how specifically within the EU border regime security actors constructed threats to European societies in order to raise pressure on EU institutions and member states. By merely focusing on the protection of borders, member states impose a nationalist approach to migration management, whereas humanitarian NGOs set priorities in highlighting migrants’ vulnerabilities and need for protection. When looking at the mediation of migrants’ vulnerabilities in the context of SAR in the Mediterranean, a more nuanced multi-dimensional approach would therefore be desirable. By focusing on the effects on internal security alone, economic, ecological, or social interdependencies between nation-states are left aside from discourse and policymaking. As Ulrich Beck (2004, pp. 7–10) described, the reality itself has become cosmopolitical as a result of those interdependencies, which necessarily calls for a cosmopolitical analysis as basis for discourse. This goes against nation-states’ focus on securitised discourses and practice of migration management. In the sense of a critique of methodological nationalism, the public and media discourse needs to overcome single national views and critically discuss transnational questions like responsibility and justice for distant suffering (Schmidt, 2017, p. 5). As Annette Jünemann (2017, pp. 173–176) argued, the securitising processes within public discourses on migration are based on the othering of people on the move. Following the assumption that an unknown and distant other necessarily poses a threat to a designated in-group, the designated out-group is excluded and can face dehumanisation in the end. Therefore, the vulnerability of migrants is based on their notion as a group of foreign others. This differentiation between us and others is fortified by a single perspective media discourse. Judith Butler (2009, p. 43) argued in this respect that this differentiation disavows the interdependency of precarious lives bound to one another. In order to break processes of othering, an understanding of the situation of the other has to be generated to create out-group empathy. This has to be fostered through the reporting and mediation of refugee journeys. Within the discourse, an understanding of the circumstances and events around individual journeys has to be created in order to bring the (inter)connected vulnerabilities to light. Similar thoughts are also the basis for a concept of a more conflict-sensitive media

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discourse based on the notion of peace journalism established by Johan Galtung (1998) or Wilhelm Kempf (1996). The idea of a journalism that takes the perspective of all parties involved in a conflict can also be transposed to the reporting on the humanitarian crisis in the Mediterranean. Indeed, without reports from humanitarian NGOs, the sea becomes a black box for civil society and public opinion. Consequently, the media must rely on security actors as their sources. Civil society SAR organisations are therefore playing a crucial role as witnesses reporting on a humanitarian crisis that would otherwise not be visible to the public. NGOs give recognition by enabling the vulnerable others to insert their voices into the reporting. These narratives provide largely neglected but crucial knowledge on migrants and migration. Understanding the distant suffering can induce empathy and solidarity as well as open up a discursive space for a more complex idea of distant others as well as oneself (Schmidt, 2017, p. 12). As described by Göttsche in reference to Butler (2005) an important step for stopping violence is becoming aware of one’s own vulnerability and acknowledging that of others. EU policy measures focus on capacity-building of the Libyan Coast Guard as well as surveillance and information sharing. Based on the information gathered by humanitarian activists as well as researchers, the border practice of non-assistance and passive or active support of push and pull-backs can be reconstructed. In an article titled “The Left-to-die Boat”, Charles Heller and Lorenzo Pezzani (2019) forensically reconstructed available documentation and data in order to show how navy ships under NATO command knowingly disregarded a boat in distress and left it adrift for 14 days in March 2011. In more recent years, similar events as well as push and pull-backs were reported and documented thanks to the vigilance of civil society organisations at sea and in the air. In a recent documentation of Maltese human rights violations, Amnesty International (2020a) also resorts to information about mass interceptions collected and compiled by humanitarian NGOs like Alarm Phone, Borderline Europe, Mediterranea, Sea-Watch and Humanitarian Pilot Initiative.17 They were able to report on frequent human rights violations by EU assets, thus putting the spotlight on negative effects of EU policies on migrants’ vulnerabilities. SAR organisations use their collected evidence to support human rights cases in international courts. Their activities exert essential influence on the legal discourse. Eventually, this is an important strategy for the organisations themselves towards legitimising their own work against criminalisation efforts and strengthening their position as discursive actors.

17

See: Alarmphone et al. (2020).

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Looking at the increasing exposure to arbitrary detention, torture and extortion of migrants, the importance of humanitarian NGOs who identify these structures through their work with rescued people on board of the ships must be acknowledged. Typically, there are cultural mediators or humanitarian affairs officers on board of the rescue ships who collect testimonies, document vulnerabilities, and hand their records over to humanitarian organisations and officials during transfers and disembarkations. The testimonies collected by SAR organisations also built the basis for reports about the situation of refugees in Libya by human rights organisations. Those publications contribute to the public and scientific discourse and help to understand the situation of migrants and effects of EU policies on countries of origin and structures in transit-countries like Libya. In 2018, in the environment of SAR activists in Germany, a civil society movement called Seebrücke18 emerged. The international movement has been founded as a reaction to those structural developments. It mobilises against the criminalisation of rescuers and promotes solidarity with refugees and migrants. The work of SAR NGOs therefore was apparently able to create empathy and the desire for active solidarity with migrants as overlooked others in a relevant group of society. By organising in a movement, activists also open channels to political parties and members of parliaments19 at regional, national, and European levels. Through these channels, NGOs gain the ability to bring their arguments as well as migrants’ voices into the law-making process and parliamentary discussion. Through initiatives at the local level, the movement was able to advocate for a network of cities declaring themselves ports of safety,20 thereby showing willingness of various municipalities to act in solidarity with people on the move.

4

Conclusion

The article has shown that the securitisation and criminalisation of SAR organisations has led to various detrimental implications for migrants’ vulnerabilities. At the same time the securitised perspective based on othering reduces the possibility to develop empathy with and understanding for the vulnerable foreign other. 18

The name is a reference to the German translation of airlift combined with the word for sea. 19 In the wake of the founding of the Seebrücke, members of the German Bundestag founded the “Parlamentsgruppe Seenotrettung” in 2018 in order to foster the debate about SAR in the Mediterranean. 20 The German alliance „Bündnis Städte Sichere Häfen“ had 211 member cities in December 2020. For details about the alliance see: https://seebruecke.org/sichere-haefen/ueberblick/

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As Jünemann (2017, pp. 176–179) described regarding the German discussion on migrants in 2015, a sort of counter discourse has been established by human rights activists, lawyers, and migrants, who started functioning as de-securitising actors. In this sense, SAR organisations must not only be seen as humanitarian groups actively mitigating, as best they can, migrants’ vulnerabilities in the field, but also as essential discursive actors that can have an impact on the overall discourse on migration and rescue. Thus, they can act as facilitators on the way towards a more complex and nuanced perception of vulnerability. Humanitarian NGOs enable rescued people to tell their stories, thus giving them recognition, agency, and empowerment. This already constitutes an act against the categorical branding of migrants as a vulnerable group of victims and steers discourse towards the recognition of migrants’ agency and resilience as postulated by the IOM (2020a). In fact, while upholding the uncontested duty to save lives at sea, humanitarian activists also advocate for a more generalised logic of rescue building on the idea of an individual freedom of movement. The Mediterranean is the world’s deadliest border and when looking at the shifting character of EU maritime missions, it is also discursively constructed as the last line of defence in border protection. However, if migrants are reduced to the fact that they merely cross borders, border protection becomes the only relevant policy at the expense of the protection of human rights. Consequently, humanitarian NGOs criticise this nationalist focus and promote universal mobility rights. Through their actions, they empower people on the move to add their stories to the migration discourse in the hope to remove biases from policy-making in the long run. Jünemann (2017) argues that de-securitising actors can open arenas for public and private discourse by raising empathy for the unknown other. The tragic situation in the Mediterranean cannot be reduced to a humanitarian crisis caused by an alleged pull effect. Neither is it caused by reckless decisions of individual migrants. If the suffering is simplified and made invisible, commentators no longer discuss the political, economic, or historical reasons for the situation that needs to be addressed. Since securitisation builds on othering and panders to the anxiety of in-groups, this strategy has to be disrupted by active bridging and the creation of belonging to a solidary society. The mediation of vulnerabilities needs to create an understanding of the other as well as oneself in order to create a society in which we all belong. As Butler (2009, p. 58) described regarding war reporting, certain lives seem not to be protected by the human rights discourse. The same seems to become true for the mediation of the humanitarian crisis in the Mediterranean. This discursive observation resorts back to Hannah Arendt’s (1951) critique of the Universal Declaration of Human Rights: as the sovereignty of the nation-states gained importance over the sovereignty of the individuals, the

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protection of human rights is not guaranteed to outsiders. Her call for a true universal acknowledgement of the right to have rights is reflected in the NGOs call for transnational solidarity and universal mobility rights. Through NGOs, the distant suffering is conveyed into the migration discourse. Vulnerabilities are mediated and can become a “cause for action in contexts of need and risk” (Chouliaraki, 2015, p. 708). If the migration discourse is desecuritised, then NGOs can induce action which in the long run can translate into policy. An example can be seen in the alliance of ports of safety. Through local activities such as the Seebrücke initiatives, municipal councils, and mayors, can be pushed to use their political leverage in order to achieve more humane and solidary migration policies on state and federal level.21 Thus, the founding of civil society organisations in support of SAR organisations seems to be a proof for the successful creation of empathy and solidarity. Humanitarian activists have the ability to open different discursive arenas. They speak as individual organisations, as alliance or as private members of our society. The individual activists are using different channels through public appearances, media or in their private peer group. It can also be assumed that while some are intimidated by the criminalisation of rescuers, others have been pushed towards a more activist self-conception. At the same time, the criminalisation and subsequent public interest has focused the attention on certain individuals. Captains of rescue vessel like Carola Rackete have used the media attention on their persons in order to actively participate in the public discourse towards creating a transnational solidarity. Supporting civil society organisations like Amnesty International but also politicians, churches, or artists refer to those criminalised individuals when speaking out for a more humane border regime. Other activists have stepped into politics and become desecuritising actors proposing a counter position in parliaments. NGOs and their representatives can thus create empathy for the distant suffering and help create a de-securitised knowledge on migration. Perhaps their role as actors within the public discourse should be further researched along these avenues: How do criminal accusations change their self-perception and their role? How can they be more efficient discursive actors? How does the presence or absence of civil society organisations in the Mediterranean influence the perception of migrants crossing the Mediterranean? Migrants’ experiences cannot be retraced by individuals in the regions of destinations. Nevertheless, NGOs can help to mediate the suffering in its complexity and elaborate strategies that can create empathy and give migrants 21

The mayor of Palermo, Leoluca Orlando (2015), framed a basis for the concept, based on mobility as an inalienable human right in the “Charter of Palermo”; Petra Bendel et al. (2019) promote the strengthening of the municipal role in migration and asylum policies, based on an appraisal of concept studies as well as existing EU mechanisms.

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agency and a sense of belonging rather than plain commiseration.22 As Carola Rackete (2019, p. 72) wrote about the suffering of migrants in need of rescue: “We must not look away just because it affects a group to which we do not feel that we belong. Because it weakens the human rights of all of us—it just affects the weakest first.”23

References Aarstad, Å. K. (2015). The duty to assist and its disincentives: The shipping industry and the mediterranean migration crisis. Mediterranean Politics, 3, 413–419. Alarmphone, Borderline Europe, Mediterranea, Sea-Watch (2020). Remote control: The EULibya collaboration in mass interceptions of migrants in the Central Mediterranean. https://eu-libya.info/img/RemoteControl_Report_0620.pdf. Albahari, M. (2015). Crimes of peace: Mediterranean migrations at the world’s deadliest border. University of Pennsylvania Press. Amnesty International. (2020a). Malta: Waves of impunity: Malta’s human rights violations and Europe’s responsibilities in the central mediterranean. https://www.amnesty.org/dow nload/Documents/EUR3329672020ENGLISH.PDF. Amnesty International. (2020b). ‚Between Life and Death’. Refugees and migrants trapped in Libya’s cycle of abuse. https://www.amnesty.org/download/Documents/MDE193084202 0ENGLISH.pdf. Amnesty International Germany. (2020). Amnesty Menschenrechtspreis 2020 geht an Seenotrettungscrew Iuventa10. https://www.amnesty.de/allgemein/pressemitteilung/deu tschland-amnesty-menschenrechtspreis-2020-geht-seenotrettungscrew. Arendt, H. (1951). The origins of totalitarism. Schocken Books. Balzacq, T. (2008). The policy tools of securitization: Information exchange, EU foreign and interior policies. Journal of Common Market Studies: JCMS, 46(1), 75–100. Bardak, U. (2017). Root causes and changing patterns of migration in the Mediterranean. In A. Jünemann, N. Scherer, & N. Fromm (Eds.), Fortress Europe? (pp. 35–50). Springer Fachmedien Wiesbaden. Beck, U. (2004). Der kosmopolitische Blick oder: Krieg ist Frieden. Suhrkamp. Bendel, P., Schammann H., Heimann, C., & Stürner, J. (2019). Der Weg über die Kommunen. Empfehlungen für eine neue Schlüsselrolle der Kommunen in der Flüchtlings- und Asylpolitik der EU. Heinrich-Böll-Stiftung. Policy Paper. https://www.boell.de/sites/default/ files/der_weg_uber_die_kommunen_2._auflage.pdf Bigo, D. (2002). Security and immigration: Toward a critique of the Governmentality of Unease. Alternatives: Global, Local, Political, 27(1_suppl), 63–92. 22 Burghardt et al., (2017, p. 11) argue that commiseration is a selfish action and does not lead to a critical assessment of conditions; see also: Schmidt (2017, pp. 11–12). 23 Original: „Wir dürfen nicht wegschauen, nur weil es eine Gruppe betrifft, der wir uns nicht zugehörig fühlen. Denn das weicht die Menschenrechte für uns alle auf – die Schwächsten trifft es nur zuerst.“

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Burghardt, D., Dziabel, N., Höhne, T., Dederich, M., Lohwasser, D., Stöhr, R., & Zirfas, J. (2017). Vulnerabilität: Pädagogische Herausforderungen. Kohlhammer. Butler, J. (2005). Gefährdetes Leben: Politische essays. Edition Suhrkamp. Butler, J. (2009). Frames of war: When is life grievable? Verso. Buzan, B., Waever, O., & Wilde, J. d. (1998). Security: A new framework for analysis. Lynne Rienner. Carling, J. (2017). How should migrant smuggling be confronted? In McAuliffe, M., & Klein Solomon, M. (Conveners), Ideas to Inform International Cooperation on Safe, Orderly and Regular Migration. IOM Geneva. Chouliaraki, L. (2015). Afterword: The dialectics of mediation in ‘distant suffering studies.’ International Communication Gazette, 77(7), 708–714. Chynoweth, S. (2019). “More Than One Million Pains”: Sexual violence against men and boys on the central mediterranean Route to Italy. Women’s refugee commission. https:// s33660.pcdn.co/wp-content/uploads/2020/04/Libya-Italy-Report-03-2019.pdf. Council of the European Union. (2001). Council Directive 2001/51/EC of 28 June 2001 supplementing the provisions of Article 26 of the Convention implementing the Schengen Agreement of 14 June 1985. Council of the European Union. (2016). Council Decission (CFSP) 2016/993 of 20 June 2016 amending Decision (CFSP) 2015/778 on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED operation SOPHIA). Cusumano, E., & Gombeer, K. (2020). In deep waters: The legal, humanitarian and political implications of closing Italian ports to migrant rescuers. Mediterranean Politics, 25(2), 245–253. Cusumano, E., & Villa, M. (2020a). From “Angels” to “Vice Smugglers”: The criminalization of sea rescue NGOs in Italy. European Journal on Criminal Policy and Research. Cusumano, E., & Villa, M. (2020b). Over troubled waters: Maritime rescue operations in the Central Mediterranean Route. In IOM (Ed.), Migration in West and North Africa and across the Mediterranean (pp. 202–214). https://publications.iom.int/system/files/ pdf/ch16-over-troubled-waters.pdf. Cuttita, P. (2017). Repoliticization through search and rescue? Humanitarian NGOs and migration management in the central mediterranean. Geopolitics, 23(3), 632–660. ECRE. (2020). Med: 78 to quarantine on Italian ship, 163 still stranded amid spike in departures and depleted rescue capacities. European council on refugees and exiles. https://www.ecre.org/med-78-to-quarantine-on-italian-ship-163-still-stranded-amidspike-in-departures-and-depleted-rescue-capacities/. EEAS. (2020). Strategic Review on EUNAVFOR MED Op Sophia, EUBAM Libya & EU Liaison and Planning Cell. European External Action Service. EEAS(2018) 835. Funke, B. (2018). Shaping the discourse: How search and rescue NGOs got under fire in the debate on migration. Sicherheit Und Frieden: S + F, 36(3),159–164. Galtung, J. (1998). Friedensjournalismus: Warum, was, wer, wo, wann? In W. Kempf (Ed.), Friedenspsychologie 4: Krieg, Nationalismus, Rassismus und die Medien (pp. 3–20). LIT. Hassouri, P. (2017). Challenging established categories and exploring intersections. In A. Jünemann, N. Scherer, & N. Fromm (Eds.), Fortress Europe? (pp. 11–22). Springer Fachmedien Wiesbaden.

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Heinrich-Böll-Stiftung. (2017). Einwanderungsland Deutschland: Bericht der Kommission „Perspektiven für eine zukunftsgerichtete und nachhaltige Flüchtlings- und Einwanderungspolitik“ der Heinrich-Böll-Stiftung. Schriften zur Demokratie: Band 46. Heller, C., & Pezzani, L. (2016). Death by rescue: The lethal effects of the EU’s policies of non-assistance. https://deathbyrescue.org/report/narrative/ Heller, C., & Pezzani, L. (2017). Blaming the rescuers: Criminalising solidarity, re-enforcing deterrence. https://blamingtherescuers.org/report/. Heller, C., & Pezzani, L. (2019). Report on the “Left-To-Die Boat”. Centre for research architecture, goldsmiths, University of London. https://content.forensic-architecture.org/ wp-content/uploads/2019/06/FO-report.pdf. Hoffmann, K. (2014, December 1). Italiens Flüchtlingspolitik vor einem Kurswechsel: Ein Jahr Mare Nostrum. https://www.deutschlandfunk.de/ein-jahr-mare-nostrum-italiens-flu echtlingspolitik-vor.724.de.html?dram:article_id=304899. House of Lords. (2016). Operation Sophia, the EU’s naval mission in the Mediterranean: an impossible challenge. European Union Committee. HL Paper 144. https://publications. parliament.uk/pa/ld201516/ldselect/ldeucom/144/144.pdf. Howden, D., Fotiadis, A., & Campbell, Z. (2020, March 12). Revealed: the great European refugee scandal. https://www.theguardian.com/world/2020/mar/12/revealedthe-great-european-refugee-scandal. Huysmans, J. (2008). The politics of insecurity: Fear, migration and asylum in the EU (Reprinted.). The new international relations series. Routledge. IOM (Ed.) (2020a). Migration in West and North Africa and across the Mediterranean. https://publications.iom.int/system/files/pdf/migration-in-west-and-north-africaand-across-the-mediterranean.pdf. IOM. (2020b). 2020 death toll in West Africa sea route tops 500 amid uptick in departures. https://www.iom.int/news/2020-death-toll-west-africa-sea-route-tops-500-amid-upt ick-departures. IOM Libya. (2020). Monthly Update July 2020. https://libya.iom.int/sites/default/files/news/ IOM%20Libya%20-%20July%202020%20Monthly%20Update.pdf. Ismail, N. (2018, October 3). Seenotrettung: “Staaten setzen auf Abschreckung". https://www. dw.com/de/seenotrettung-staaten-setzen-auf-abschreckung/a-45717175. Jünemann, A. (2017). Emotions matter: Fear and (non-)empathy in German reactions to the “refugee crisis”. In A. Jünemann, N. Scherer, & N. Fromm (Eds.), Fortress Europe? (pp. 167–183). Springer Fachmedien Wiesbaden. Kaleck, W. (2019). Festrede zur Verleihung des Paul Grüninger Preises 2019 an die Crew des Rettungsschiffes Iuventa. Paul-Grüninger-Stiftung, St. Gallen. http://www.paul-grueni nger.ch/pagine/stiftung/pdf/Festrede%20Grueningerpreis_19-Kaleck.pdf. Karamanidou L. (2015). The securitisation of European migration policies: Perceptions of threat and management of risk. In G. Lazaridis, & K. Wadia (Eds.), The Securitisation of Migration in the EU. The European Union in International Affairs. (pp. 37–61). Palgrave Macmillan. Kempf, W. (1996). Konfliktberichterstattung zwischen Eskalation und Deeskalation. Wissenschaft & Frieden, 14(2), 51–54. Kuschminder, K., & Triandafyllidou, A. (2020). Smuggling, trafficking, and extortion: New conceptual and policy challenges on the libyan route to Europe. Antipode, 52(1), 206–226.

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Lüdke, S (2020, December 24). Seehofer drang auf schärfere Regeln für Seenotretter. https://www.spiegel.de/politik/ausland/horst-seehofer-drang-auf-schaerfere-reg eln-fuer-seenotretter-a-88fd2968-6a8f-494b-a5b8-39c5f21510a8. Maccanico, Y., Hayes, B., Kenny, S., & Barat, F. (2018). The shrinking space for solidarity with migrants and refugees: How the European Union and Member States target and criminalize defenders of the rights of people on the move. https://www.tni.org/files/public ation-downloads/web_theshrinkingspace.pdf. Mainwaring, C. (2012). Constructing a crisis: The role of immigration detention in Malta. Population, Space and Place, 18(6), 687–700. Majcher I., Flynn M., & Grange M. (2020). Southern Europe: Turning “Reception” into “Detention”. In Majcher I., Flynn M., & Grange M. (Eds.), Immigration Detention in the European Union. In the Shadow of the “Crisis”. (pp. 255–346). Springer Cham. McDowall, A. (2020). Three migrants shot dead in Libya after failed crossing to Europe. https://www.reuters.com/article/us-libya-migrants-idUSKCN24T227. McKay, F. H., Thomas, S. L., & Kneebone, S. (2012). ‘It Would be Okay If They Came through the Proper Channels’: Community perceptions and attitudes toward Asylum Seekers in Australia. Journal of Refugee Studies, 25(1), 113–133. Micallef, M. (2017). The human conveyor belt: Trends in human trafficking and smuggling in post-revolution Libya. https://globalinitiative.net/wp-content/uploads/2017/03/globalinitiative-human-conveyor-belt-human-smuggling-in-libya-march-2017.pdf. OHCHR. (2017). UN human rights chief: Suffering of migrants in Libya outrage to conscience of humanity. https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx? NewsID=22393. OHCHR. (2018). Legal changes and climate of hatred threaten migrants’ rights in Italy, say UN experts. https://www.ohchr.org/SP/NewsEvents/Pages/DisplayNews.aspx? NewsID=23908. Orlando, L. (2015). Charter of palermo. https://www.iom.int/sites/default/files/our_work/ICP/ IDM/2015_CMC/Session-IIIb/Orlando/PDF-CARTA-DI-PALERMO-Statement.pdf. Panebianco, S. (2016). The mare nostrum operation and the SAR approach: The Italian response to address the Mediterranean migration crisis. http://www.dsps.unict.it/sites/def ault/files/files/panbianco_EUMedEA_JMWP_03_2016__.pdf. Political and Security Committee. (2016). Polticial and Security Committee Decission (CFSP) 2016/1635 of 30 August 2016 on the commencement of the capacity building and training of the Libyan Coast Guard and Navy by the European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED operation SOPHIA) (EUNAVFOR MED/3/2016). Rackete, C. (2019). Handeln statt Hoffen: Aufruf an die letzte Generation. Droemer Verlag. Reuters. (2020, August 15). Number of migrants landing in Italy more than doubles in past year. https://www.reuters.com/article/us-italy-migrants-minister-idUSKCN25B0SO. Rodenhäuser, T. (2014). Another brick in the wall: Carrier sanctions and the privatization of immigration control. International Journal of Refugee Law, 26(2), 223–247. Schmidt, J. (2017). Konstruktiver Journalismus – Ein Ansatz zur kosmopolitischen Vermittlung fernen Leids? Global Media Journal - German Edition, 7(2), 1–26. https://doaj.org/ article/0fcfe321a24043c5bc33b0d0b7fcff65.

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Spena, A. (2018). Where are we going? Italy (and Europe) at the crossroads between xenophobia and hospitality. https://www.law.ox.ac.uk/research-subject-groups/centre-crimin ology/centreborder-criminologies/blog/2018/07/where-are-we. Sunderland, J., & Salah, H. (2019). No escape from hell: EU policies contribute to abuse of migrants in Libya. Human Rights Watch. Tondo, L. (2020, September 13). Migrants land in Sicily after ‘longest standoff in European maritime history’. https://www.theguardian.com/world/2020/sep/13/migrants-land-in-sic ily-after-longest-standoff-in-european-maritime-history. Tondo L. (2020b, October 2). Matteo Salvini goes on trial over migrant kidnapping charges. https://www.theguardian.com/world/2020/oct/02/matteo-salvini-set-to-be-triedover-migrant-kidnapping-charges-italy. UNHCR. (2000). Summary position on the protocol against the smuggling of migrants by land, sea and air and the protocol to prevent, suppress and punish trafficking in persons, especially women and children, supplementing the un convention against transnational organized crime. https://www.unhcr.org/protection/operations/43662b942/unhcr-sum mary-position-protocol-against-smuggling-migrants-land-sea-air.html. UNHCR. (2017). Desperate journeys: Refugees and migrants entering and crossing Europe via the Mediterranean and Western Balkans routes. February 2017. https://www.unhcr. org/news/updates/2017/2/58b449f54/desperate-journeys-refugees-migrants-entering-cro ssing-europe-via-mediterranean.html. UNHCR. (2018). Desperate journeys: January 2017–March 2018. https://data2.unhcr.org/en/ documents/download/63039. UNHCR. (2019a). Desperate journeys: Refugees and migrants arriving in Europe and at Europe’s borders. January–December 2018. https://data2.unhcr.org/en/documents/dow nload/67712. UNHCR. (2019b). Desperate journeys: Refugee and migrant children arriving in Europe and how to strengthen their protection. January–September 2019. https://data2.unhcr.org/en/ documents/download/71703. UNHCR. (2020). Update Libya: 11 September 2020. https://reliefweb.int/sites/reliefweb.int/ files/resources/UNHCR%20Libya%20Update%2011%20September%202020.pdf. UNSMIL/OHCHR. (2018). Desperate and dangerous: Report on the human rights situation of migrants and refugees in Libya. United Nations Support Mission in Libya/Office of the High Commissioner for Human Rights. https://www.ohchr.org/Documents/Countries/ LY/LibyaMigrationReport.pdf. Vacas Fernández, F. (2016). The European operations in the mediterranean sea to deal with migration as a symptom: From the Italian operation MARE NOSTRUM to FRONTEX Operations TRITON and POSSEIDON, EUNAVFOR-MED and NATO’S assistance in the Aegean Sea. Spanish Yearbook of International Law, 20, 93–117. Van Hear, N., Bakewell, O., & Long, K. (2018). Push-pull plus: Reconsidering the drivers of migration. Journal of Ethnic and Migration Studies, 44(6), 927–944. Völkel, J. C. (2017). When interior ministers play diplomats. In A. Jünemann, N. Scherer, & N. Fromm (Eds.), Fortress Europe? (pp. 83–103). Springer Fachmedien Wiesbaden.

Part III Vulnerabilisation of Specific Migrant Communities Through Dysfunctional Protection

A Claim for Agency: From Guest to Host in Jordan’s Refugee Camps—Notes from the Field Miriam Müller-Rensch and Hamza Safouane

1

Introduction

From the 10th to the 28th of October 2018, we had the opportunity to conduct an extensive field research in two refugee camps in the Hashemite Kingdom of Jordan, Azraq and Za’atari.1 This study was initially part of Müller-Rensch’s overarching research project to examine the governance structures of the terrorist group Daesh2 in the territories that it conquered and controlled in Syria and Iraq. The objective of this specific field research was to collect testimonies from Syrian refugees in Jordanian camps who, one way or another, endured Daesh’s rule between 2013 and 2017. A semi-structured interview guideline was prepared in order to elicit narratives of personal experiences under Daesh’s rule, along with the procedure for obtaining informed consent from our participants.3 Eventually, we M. Müller-Rensch (B) University of Applied Sciences Erfurt, Sociology and International Inequality, Erfurt, Germany E-Mail: [email protected] H. Safouane Osnabrück University, Institute for Migration Research and Intercultural Studies (IMIS), Osnabrück, Germany E-Mail: [email protected] 1

The field trip was financed by the Hamburg Institute for Social Research, while the HelmutSchmidt University of Hamburg partly covered Hamza Safouane’s travel expenses. 2 Also called the Islamic State, the name Daesh stems from the Arabic acronym for the Islamic State of Iraq and the Levant (ISIS). 3 We explained in Arabic to our research participants all the elements that were part of informed consent: the purpose of our study; the right to voluntarily withdraw at any time from the study © The Author(s), under exclusive license to Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2021 N. Fromm et al. (eds.), Power in Vulnerability, Studien zur Migrations- und Integrationspolitik, https://doi.org/10.1007/978-3-658-34052-0_5

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managed to interview more than fifty refugees in the Azraq camp, many of whom were women, but only tangentially about Daesh. The main topic of our research was re-oriented toward refugees’ living conditions in the controlling space of the camp. In the following report, we reflect on our experience of implementing a difficult-to-research topic in a complex environment that is fraught with ambiguity. In the first two sections of our report, we will present the general background of our initial research design and then describe the conditions and modalities of our access to the Azraq camp. In the following sections, we will share our reflections on our interactions with the managing authorities of the camp as well as our encounters with study participants. We will explain how we needed to update our research topic as a result of our interviewees’ reluctance to speak about Daesh. These steps led us eventually to deconstruct certain preconceived narratives of the camp and seek theoretical frameworks that can capture the complexity and ambiguous power relations in a camp. More precisely, we will discuss the possibility of spatial agency in a vulnerabilising environment and use the normative theory of assemblage to provide a more nuanced understanding of encampment. Overall, our field experience provides a remarkable example of power in vulnerability through spatial agency. Understanding refugees’ capacity to negotiate their position, vis-à-vis the camp’s security apparatus as well as us and our research agenda, requires overcoming a victimising perspective on vulnerability and acknowledging the complexity of power relations within an oppressive space.

2

Initial Research Design: The “Alternative Mode of Governance” Framework

Müller-Rensch’s long-term research project aims to describe and interpret what she calls Daesh’s “alternative mode of governance”. She identified four governance regimes as constitutive processes: The caliphate’s border regime,4 security

and without justification; the guarantee of confidentiality and anonymity given that we would audio-record the interviews; the risks associated with participation. Consent for participating in the interview and for being recorded was given verbally. 4 both physical and virtual/symbolic delineation from the outside and integration of the inside of the socio-political community/self-defined ummah (Islamic community); key categories: membership, citizenship, access, transit;

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regime,5 legal regime,6 and educational regime.7 Understanding these various regimes required examining similar situations experienced by perpetrators, victims, and bystanders through in-depth interviews, testimonies, archive, and document analysis. The objective was to gain a bottom-up understanding of Daesh’s governance practices, which would then be contextualised by archives and administrative documents, as well as official statements issued by the terrorist group. During a workshop on “Violence, Trauma and Refugees as a Consequence of the Arab Spring Uprisings” at the University of Hamburg in May 2018, MüllerRensch met with Prof. Dr. Fawwaz Momani8 who suggested that some of the planned interviews could be conducted at Za’atari and Azraq refugee camps in Jordan. Since he has already been to the camps, he offered his support to request an authorisation from the Jordanian Ministry of Interior to access the camps. Müller-Rensch contacted Safouane to become a research partner for the field trip to the Jordanian camps. Having the four governance regimes of interest in mind, Mueller-Rensch prepared a semi-structured interview guideline, which was translated into Arabic. Over 20 topics were included in the questionnaire, though not all topics were to be raised systematically during each interview. In July 2018, the research team applied for a research permit with the Ministry of Interior. However, the requests received no official response. Yet, Momani still convinced us to come to Jordan to try to obtain the permit.

3

Field Access and Institutional Framework

Institutional structures of the security apparatus around refugee camps, our network, and the sensitivity of our research topic turned out be a rather unpredictable mix creating obstacles and challenges for the success of the field trip. Without any official Jordanian permit or letter supporting the project, we sat down in Amman 5

key categories: policing & surveillance, military structures; key categories: judiciary, arbitration, penal law and punishments, administrative law and process, interpretation of sharia law; 7 key categories: schooling and universities, relationship family and public sphere, relationship collective and individual, “new human” and Daesh’s six stages of child socialisation model “from cubs to lions”. 8 Currently Professor at the Department of Counseling and Psychology and former Director of the Refugees, Displaced Persons, and Forced Migration Studies Centre at Yarmouk University, Jordan. 6

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for our first research meeting in the morning of October 11th, discussing how we should proceed to optimise our limited time. Clearly, our only way forward was to meet with Momani. We drove north to Irbid to meet with him on the campus of Yarmouk University. During our encounter, he explained that general research in the Azraq and Za’atari camps was not the reason for the delay in issuing our access permits, but rather our topic. Indeed, Jordan has been on state alert since the advent of Daesh: the country suffered a terrorist attack claimed by the organisation in 2016 and allegedly saw up to 3000 of its nationals become radicalised fighters for the organisation with the fear that many could return (Kassay, 2019). To this day Daesh still maintains a network across the country, relying on family and business ties – a fact which has been emphasised as a threat to Jordan’s public security repeatedly over the past five years by state officials (Alabassi, 2018). As a result, Daesh remains an extremely sensitive topic for the Jordanian state. Yet, with only about two weeks to gain access to the camps and recruit interviewees, it seemed quite unlikely that we could succeed in collecting the data for which we came to Jordan. Luckily, Momani’s willingness to get involved personally in our project by acting as chaperone during our first visit in the camps made the whole difference. Thanks to his connection and position as a respected university professor, we were able to meet with the Refugee Affairs Coordinator at the Ministry of Interior in Amman on October 14th, who, that very same day, sent us the permit to access Azraq and Za’atari. As convened, Momani accompanied us during our first day in Azraq on October 15th where we met with the camp’s military leader at the military compound. While the men were offered tea, the only female staff member present at the time waited patiently for the initial pleasantries to be exchanged until Müller-Rensch clarified that she was not an assistant, but the team-leader of the project. Although the atmosphere shifted from a jovial welcome to a somewhat weary watchfulness, the Colonel and his officers remained polite and supportive of the project. About an hour later, we were accompanied to “Village 2” of the Azraq camp. Any Syrian refugee who had lived under Daesh’s rule or was suspected to have had contacts with them at some point was housed in “Village 5” first for an indeterminate period. Village 5 lies closest to the military compound and their residents are not allowed to exit it. The reason for sending these refugees to village 5 is to undergo security vetting. For these refugees, any contact outside Village 5 is strictly forbidden and their movements are closely controlled. After a trial period and several interviews, people may be cleared as uncompromised, having no ties to Daesh whatsoever and they can move to Village 2. So when we knocked at the door of the first “caravan” in Village 2, we were optimistic to

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meet with refugees who had somehow experienced Daesh’s rule and, hopefully, felt sufficiently confident to talk about at least some aspects of their experiences. Little did we know at this point. After only a couple of hours, we were informed by the camp officials that there had been a mistake and needed to leave Village 2. We had to carry out our interviews in Villages 3 and 6, where almost no one had had any contact with the terrorist organisation. While this was indeed disappointing from the perspective of our initial research design, our numerous conversations over the following days turned out to be extremely interesting, offering new insights on topics we had not considered: we were still able to learn a great deal about the effects of Daesh’s territorial expansion and rule on people’s lives, based on their stories about fleeing from the group and their communications with relatives still living in these territories at the time. In addition, many interviewees shared with us harrowing changes in their lives through the description of their daily routines and the overall living conditions in Azraq. Consequently, the most significant part of our collected data concerned people’s difficult lives in the camp and their transition from life under Daesh rule and/or in a war zone.

4

Reflection on Access to Azraq and Za’atari and Research (Re)planning

Obtaining access to the Azraq and Za’atari camps in order to conduct interviews with its residents implied, as we explained, that our research topic and questions were validated by the Jordanian authorities in charge. In essence, we were both officially authorised to carry out interviews with residents of the camp and collect personal testimonies about Daesh’s governance structures and merciless rule over the communities that fell under their control. It is worth noting here that many Syrian refugees sent to Azraq came from areas that were either conquered by Daesh or were directly threatened by them (UNHCR, 2019). Such regions include Homs, Raqqa, Deir ez-Zor, or Aleppo Governorates, which were partly controlled by Daesh. In contrast, 80% of Syrian refugees who came to Za’atari hail from the Dara’a Governorate, approximately 80 km to the north, and remained free from the control of the terrorist group (UNHCR, 2020). This difference between the two camps corroborates reports by other researchers we know who told us that access to Za’atari was easier than Azraq; the Syrian population in Azraq being more securitised (a difference was also reflected in the overall spatial organisation of Azraq). Consequently, we thought that it would be judicious to spend the first week in Azraq while Momani was still available to directly introduce us to the

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Azraq staff on the first day. “The more includes the less”, so to speak, since we thought that during the second week of our trip we could go to Za’atari with relative ease. From the outset, however, the authorisation to access the refugee camps and our ability to follow through on our research agenda must be qualified for two reasons: the first is related to the authorities directly in charge of the management of the camps; the second is related to our interviewees themselves and their capacity to influence our research agenda. First of all, although the Department of Refugee Affairs gave us the green light to conduct our research in both camps, it was still up to the Syrian Refugee Assistance Department (SRAD) to let us enter the Azraq premises.9 In reality, the final decision to allow us in belonged to the SRAD. In other words, the Ministry of Interior simply signaled that upon consideration of our research project—vouched for by a well-established Jordanian professor –, it saw no objection to letting us conduct interviews in the camps. For its part, the SRAD remained deeply concerned about our research topic as well as presence in the camp but nevertheless decided to follow the Ministry’s decision. In retrospect, it was our week spent in Azraq that turned out to be the most fruitful and worthwhile for our data collection. In the following week, the SRAD at Za’atari camp outright refused to support our project—an outcome that perhaps we could partly attribute to the absence of Momani who was travelling at the time. Unexpectedly, we were given more freedom to circulate and conduct our research in Azraq, a camp that exudes rigidity and control, than in the more organic and disorderly Za’atari. It is conspicuous how much the security apparatus in Azraq, whose specific spatial layout will be discussed below, deploys a panoptic mechanism of control that starkly contrasts with Za’atari (Rothe et al., 2020). There is a sense of order and stillness in Azraq that comes out of its ordered and geometrical planning, whereas Za’atari gives a general impression of city-like disorder and bustle through a more organic and improvised construction. This difference can be confirmed by satellite images of both camps (Figs. 1 and 2). This distinction was also stressed by the Azraq Community Police when we spoke to them: Azraq, they explained, is the state of the art when it comes to planning a refugee camp. But even though the camp is primarily designed to maintain control over its residents, the SRAD in Azraq still displayed concern for the well-being of the Syrian refugees and the necessity to reduce their vulnerability. Indeed, they clearly

9

The Ministry of Interior exercises the overarching authority over the camps through the SRAD and the Jordanian police.

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(Source: Rothe et al., 2020)

communicated their apprehension that we would be addressing a subject as difficult and traumatic as life under and escape from Daesh. This does not reflect essentialising depictions of the camp “as the pure, absolute, and impassable biopolitical space (insofar as it is founded solely on the state of exception)” (Agamben, 1998, p. 72). Based on our encounters and observations in Azraq, we wish to further complicate our understanding of refugees’ vulnerabilities in the camps and performances of agency to mitigate them. We argue that while biopolitical theory10 sheds an important light on the technologies deployed in the camps for the social control of refugees, it does not fully capture the ambiguous power relations as well as the refugees’ capacity for agency in the camp. Admittedly, the apparatus of control put in place in Azraq through its overall spatial planning, 10

Biopolitics is a concept discussed by Michel Foucault in his 1977–1978 lecture series at the Collège de France Security, Territory, Population (2007) to designate a method of exercising power that no longer targets a territory, but the lives of the population living inside of it. With biopolitics, the state is not defined by its territoriality but by the strength of its population. Economic knowledge becomes a key instrument of government as well as the overall establishment of a society of control.

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(Source: UNHCR, 2018)

layout, and management reduces the understanding of protection to mere physical safety from persecution and warfare: biological survival—or bare life –, devoid of considerations for life conditions, the importance of social relationships and interactions, of political status. As a technology of the sovereign state to manage the survival of refugees, Azraq is however only partially the spatial implementation of biopolitics. Indeed, we should not limit our understanding of Azraq to a structuralist understanding of a space of exception where “everything is possible” (Agamben, 1998, p. 97). To understand the spatiality of the Azraq camp, we need to thoroughly examine the ambiguous power relations that circulate in the daily experience of the camp as well as the reality of available space for the camp’s inhabitants to claim agency. As we will discuss in the next section of this report, assemblage theory provides an interesting ontological framework to enrich the usual biopolitical approach to encampment. Concretely, the oppressive reality of the Azraq camp, while undeniable, also contains the attempts of the SRAD to mitigate refugees’ vulnerabilities. We experienced this firsthand when the SRAD explicitly restrained our capacity to recruit already vetted refugees (i.e., outside of village 5) who specifically came from

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areas that were part of Daesh’s turf and endured great suffering at their hands for fear that we might cause re-traumatisation. This occurrence contradicts the first impression of the panoptical camp where “constant and absolute surveillance” is only realised to ensure biological survival of its inmates at all costs—including the inhabitants’ free will (Foucault, 2004). This brings us to the second element that forestalled our planned research on Daesh, namely, the fact that the camps’ residents are in reality able to reclaim agency in certain settings and circumstances, even in the panoptic and disciplined setting of Azraq. When we started interviewing our research participants about their outlook on Daesh, most showed reluctance to do so. Evidently, we made sure to inform our interview partners of the precise object of our research and carried on with the interview only after we obtained an informed consent.11 We were also careful not to insist on the topic of Daesh when the interviewee seemed uncomfortable. In many cases, it could be that consent was given to us as a gesture of courtesy and hospitality, but the interviewee decided then to retract or condition it once they heard the first questions about the group. On the other hand, it is also possible that the inevitable presence of the camp’s security escort during the interview discouraged interviewees to speak openly about Daesh. It could bear consequences on their security vetting. We cannot know for sure, but what is certain is that ultimately refugees had a final say on their participation in our research and consequently altered our initial research topic.

5

Re-orienting Our Study in Azraq

We are treading on beaten ground when we criticise Agamben’s conception of the refugee camp as a site where one’s extraction from bare life is impossible. Still, it remains important from a reflexive perspective to maintain the ontological assumption of refugees’ agency. If we remove this assumption, we would be unable to acknowledge our interviewees’ ability to articulate subjectivities that differ from what was ascribed to them by the power that be. The latter also comprises our position as researchers with the privilege to access participants by capitalising on our affiliations and network, as well as our ability to freely withdraw from the field. We insist that refugees’ exercise of agency, even in a social and spatial setting as oppressive as Azraq, remains possible thanks to their ability to influence 11

We also informed them that some questions could hurt sensibilities, especially of children. Interviewees could for instance ask their children to go play outside of the caravan, but as a general rule, we refrained from evoking Daesh in presence of children.

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the space around them according to their own needs and desires. It follows that in the specific context of our study, interviewees welcomed us in their reclaimed personal space where they had enough control to express their reluctance and even refusal to comply with a research that could create discomfort and harm. In return, our interviewees participants were instead quite eager to talk about the present living conditions in the camp. This imposed temporality could reflect the dual difficulty for many interviewees to confront a horrible and potentially traumatic past as well as to envision a future in which they would have resumed normalcy. On the one hand, we had the impression that for our study participants, talking about the present circumstances of their stationary existence in the “safety” but also numbing routine of the camp was more reassuring and tangible. On the other hand, there is a strong impression of timelessness in Azraq, a place with its own temporality, which we felt each time we exited the camp at the end of the day. The protracted stuckness of our interviewees in the camp certainly conditions the way they exist in time and potentially restricts their ability to produce temporal narratives through which they can form expectations, hopes, and plans. In other words, it is important to also heed refugees’ temporal agency. Nevertheless, interviewees’ influence on our research agenda is more than just a performance of agency. It also reflects their own relationship to their migratory journey as well as the space that they occupy. This emphasises an argument made repeatedly in critical migration studies that refugees are not just objects of the camps’ security apparatus, but that they also actively refuse victimisation (Dalal et al., 2018). We readily accepted to update our research agenda to include refugees’ subjective outlook on life inside the camp. We consider it part of scholarly ethics to hear and collect their voices to our best ability, regardless of our own research plans. In the following section, we will share some of our insights based on our interviews on living conditions in Azraq and observations of its general spatial layout.

6

Agency and Space

Well-founded arguments have made the case that Jordan (and other countries in the “Global South”) has become a “rentier state”: By including its status of major refugee-hosting country into its foreign policy, Amman successfully generates

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revenue, or “refugee rent”, from an international community that is largely reluctant to play this role (Tsourapas, 2019).12 Be that as it may, we did witness a certain concern among the Jordanian authorities for the well-being of Syrian refugees in Azraq. This concern can be traced back all the way to the planning of Azraq, which, as the camp’s Community Police emphasised, was thought to be a major upgrade from Za’atari. An important preoccupation for Azraq planners was to foster community life and provide security for its most vulnerable residents, namely, single women and mothers, children, the disabled, and the elderly (Gatter, 2018). In addition, an improved sense of privacy inside the caravans in comparison to Za’atari, as well as a greater functionality and modulability of the dwelling spaces were also important criteria that were added to the architects’ specifications (Albadra et al., 2017). The layout of Azraq, as well as the greater capacity to re-shape caravans help enhance refugees’ ownership of their immediate space. Yet, Azraq remains a site of control over refugees’ lives that still significantly restricts their agency, not only over one’s own space. The design improvements made to Azraq must not distract from the fact that it is still an encampment that is spatially and temporally detached from Jordanian normalcy. Azraq is a spatial technology of immobilisation through control and surveillance surrounded by desert(ed) space. For these reasons, we will focus here on the refugees’ spatial agency as a way to circumvent both, their detachment and vulnerability. During our daily visits to Azraq, we would drive about 90 km East from Amman along the Highway 30 across the Zarqa Governorate. Situated in the stony and semi-arid Syrian Desert plateau, the Azraq camp awkwardly stands out as a place that clearly does not belong there. The camp looks hopelessly ill-adapted to its immediate environment. The only exception here are the solar panels that take advantage of the amount of sunlight that the region receives. Even then, the camp’s solar plant13 was only activated in 2017, almost three years after it opened its doors (the camp’s residents have had thus far no electricity). In addition, the caravans are unsuitable to the region’s climate. Caravans are scorching hot in daytime and lack proper isolation during the nights and rainy seasons. If residents want to block sand ingress in summer and air draft in colder seasons, they need to renounce ventilation. As a space thought and designed by architects, planners, and government officials, what Henri Lefebvre would call “representations of space,” the camp features an utter disconnect between its structure and its context (see Figs. 3 and 4). Such a disconnect leads to certain oddities such as the fact that it is organised around “villages,” a misnomer that omits that these villages are so 12 13

See Chapter by Safouane, Fromm, Khan. Funded by the IKEA Foundation.

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(Caravans in Azraq © M. Müller-Rensch)

far apart from each other that walking between them is difficult, especially in the scorching heat during the day. For the same reason, it is difficult for the “villagers” to walk to the mall and the market. Learning from the lessons of Za’atari, which experienced refugee riots in 2014 due to harsh living conditions, Azraq planners decided to limit mobility between villages so as to create buffers that prevent similar mobilisation from gaining momentum (Dalal et al., 2018, p. 69). In reality, the technical discourse that went into the planning of Azraq was that of control and security rather than organic adaptation and functionality. Azraq was built without taking its surrounding into consideration, especially the environmental adversities that residents would face: searing days during summer leading to sweltering heat inside caravans, temperatures drop significantly during the nights and can reach freezing levels in winter, sand ingress due to frequent winds in summer. Azraq is not only decontextualised from the climatic characteristics of its immediate environment, it also deprioritised the needs of its residents, especially their capacity to recreate a livelihood and reclaim normalcy for the (long and indeterminate) time of their residence there, including the resumption of cultural practices. On the contrary, the camp is a terribly efficient

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(Overview Azraq © M. Müller-Rensch)

security apparatus that is designed to population control. However, one cannot miss the countless attempts made by residents at re-contextualising their dwelling space. They performed spatial agency that enabled them to re-negotiate space and re-create or at least re-arrange parts of it so that it better fits their needs. In many of the caravans that we visited, residents would for example put isolation sheets against the wall, reclaim a small space at the porch or the rear of their dwellings to grow a small garden, or block ventilation. In other instances, they would paint on the walls of the caravans, like artist Ibrahim Mouayad.14 Claiming their homes through art not only creates a healthy “visual dissonance” with the bleak monotony of the villages, but also conveys a sense of spatial appropriation. These attempts at mitigating an adverse environment, which can be construed as spatial re-contextualisation, are limited to adaptation strategies that only marginally change a pre-conceived and rigid space designed to be a security apparatus. Yet, they enable the tentative re-appropriation of a space dominated by 14

Ibrahim Mouayad shares his art outside the confined space of the camp in the non-space of the world wide web. See portfolio on Instagram: @art_mouayad.

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the state-humanitarian power of control. Instead of passively enduring the space that was conceived, ordered and rationalised for the purpose of controlling mobility and social interactions, refugees did engage in several practices that partially appropriated it. In fact, it could be argued that to a certain extent Azraq residents also engaged in the process of creating and generating space. In this regard, we found that biopolitical theory needs to be complemented with a more nuanced focus, not just on the vulnerabilities of refugees, but more forcefully on the ways in which refugees negotiate power relations and attempt to retain their agency. Often, the camp is understood and criticised with reified ontologies such as bare life, the surveillance and control apparatus, or state sovereignty. Yet, as we have described throughout this text, the power relations within the camp remain ambiguous and the possibility of exercising agency never completely disappears, especially when the camp and its structure move beyond the provisional and become permanent. In this regard, we must agree with Thilo Wiertz’s (2020) argument that the framework of assemblage theory, as initially formulated by Gilles Deleuze and Félix Guattari (1987), proposes an essential perspective on the camp that we need to include to better understand the working of Azraq.

7

Complicating Power Relations: Azraq as an Assemblage

Deleuze defined assemblage as follows: “a multiplicity which is made up of heterogeneous terms and which establishes liaisons, relations between them, across ages, sexes, and reigns – different natures. Thus the assemblage’s only unity is that of a co-functioning: it is a symbiosis, a ‘sympathy’. It is never filiations which are important, but alliances, alloys” (DeLanda, 2006, note 9, p. 121).

In an assemblage, component parts interact such that they yield a whole that has features of its own. By definition, the assemblage is more than the mere aggregation of the properties of its parts and consequently cannot be reduced to them. It follows that the Azraq camp emerges as a distinct and contingent assemblage of heterogeneous parts that include: • a population: Syrian refugees with their social practices, desire for sustainability-normalcy, and various vulnerabilities;

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• boundaries: the general layout of the camp and the architecture of its caravans and villages that inhibit movement and social practices while exacerbating vulnerabilities; • an institutional landscape: composed of SRAD, the UNHCR and other gravitating NGOs that establish a space for protection but also confinement and control. Our previous description of the camp, its residents and the managing actors come together into a unique assemblage that strongly contrasts with Za’atari. Azraq, like Za’atari, cannot be reduced to the properties of its parts. For instance, Azraq is more than an apparatus of control with a sophisticated and improved architecture for containing mobility. As an assemblage, Azraq is not a fixed space that simply “contains” refugees (Rothe et al., 2020), but a dynamic space that incorporates alternative forms of dwelling and contestation of power. It is an oppressive space that harbours a potential for transformation as refugees deploy spatial agency whereby they attempt to disrupt its spatial layout and contest its logic. Thanks to assemblage theory, we can try to understand the agency of refugees, and so the power relations that they seek to resist, without necessarily resorting to a deterministic understanding of power. The attempts at reclaiming and appropriating space that we saw in Azraq are actually interactions with power. Rather than framing the camp as a spatial projection of power from above (transcendental), we claim that Azraq is also the result of the (immanent) forces exerted by refugees themselves, especially through their desire to regain some level of normalcy by re-contextualising their dwelling space. By reacting to power structures, they contribute to changing them. Azraq is an assemblage because it stems from “interacting forces” (Wiertz, 2020, p. 6) that are not reducible to a simple opposition (as we have shown earlier in our critique of Agamben) between vulnerable Syrian refugees and oppressive SRAD. Framed differently, the opposition between agency and structure is too rigid and monolithic to account for the changing and negotiated power relations. Conducting an analysis of Azraq within the assemblage theory framework requires a mapping of the various forces in interaction that compose the assemblage. This would enable comprehending the camp’s outline as well as its operating parts. While such a mapping extends the scope of our field report, we would like to share a brief account of such forces in action with the hope that the assemblage framework will open new avenues for reflection and critique of encampment.

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We remarked earlier that Syrian refugees engaged in more or less substantial alterations of their dwellings. These actions, however, did not exhaust their specific capacity for agency in the overall Azraq assemblage. Through our presence and encounters with our study participants, we could get a glimpse of a mapping of interacting forces, namely, the capacity of our interviewees to decide whether they wanted to cooperate with us or not. Indeed, having convinced the SRAD of the validity of our study never meant that our interviewees were readily willing to answer our questions. They retained the right to refuse to answer questions about Daesh and expressed a strong preference for talking about their everyday life in Azraq as well as their individual journeys from Syria to Jordan. Interestingly, our inquiry also revealed practices of spatial re-appropriation that show the dynamic nature of the camp and, therefore, subverted the stifling of refugees’ social practices. Indeed, almost every interview we conducted constituted the opportunity for our study participants to perform their very own hospitality ritual by welcoming us in their premises, offering us beverages and sometimes food. The arrival of actual guests in the space of the camp necessarily altered the ascribed roles and thus power structure. In a context and power setting where refugees are considered guests and recipients of protection, it was us who took their place: despite our privileged status, our interview partners were able to reclaim agency during our conversation by presenting themselves as host for us and the security escort, in full control and ownership of their dwelling. In addition, even though interviews took place inside our interviewees’ caravans, neighbours and friends would often come in to hear the stories that were being shared and regularly enriched them with their perspectives. During these meetings, the caravans were reconfigured to become a dialogical space, that enabled the exchange of stories and experiences between neighbours. In these spatial re-configurations, refugees successfully, though temporarily, incorporated fragments of normalcy into the space of “camp”, changing its very fabric in doing so, to create a neighbourhood.

8

Conclusion: Lessons Learned

In this field note, we shared the process that led us to considerably change our initial research interest. It is not the sovereign power, represented in the camp’s security apparatus, that triggered the change. It did severely restrict our access to Za’atari, but we had then already shifted our research focus. The re-orientation of our research was directly negotiated with the community that we were interested in interviewing. From a methodological (and ethical) point of view, this speaks in favour of participatory action research whenever possible as a unique way to gain

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inside knowledge on a condition, a vulnerability, or a coping strategy. In spite of their position of vulnerability in an oppressive setting, Syrian refugees in Azraq used their autonomy to speak about what mattered to them. Through their participation in our study, we could better perceive the dynamic interplay of intervening forces that is unique to Azraq, well beyond pre-conceived power relations and simplistic considerations of vulnerability, agency, and structure. By applying the assemblage framework to understand encampment, we can emphasise agency (of migrants of course but also of non-human elements, such as a spatial layout) and the interaction of forces that cannot be reduced to a single rationale, such as state sovereignty or the security apparatus. It is useful to apprehend the camp as an assemblage through multiple subjectivities and how they compete with each other for meaning. Important research avenues can thus emerge to operate a mapping of these forces and provide a more dynamic approach to refugee camps (and more generally the management of human mobility). Such a task can prove extremely fruitful in better understanding the specific mechanisms through which migration governance structures, exemplified here in the Azraq camp, capture mobility of migrants in specific settings. Conversely, it is also important in perceiving migrants’ performances of agency to diminish their vulnerability (in part induced spatially in our example). Finally, from our perspective as researchers, this approach can provide the tools to further evaluate and reflect on our positioning vis-à-vis our research topic and study participants. In the present text, we shared in detail how we too became part of the Azraq assemblage. As scholars, we are ourselves bringing our own “machine” to the field, composed of theoretical frameworks and ontologies, methodologies and tools for data collection, funding, and university hierarchies. As scholars conducting research on sensitive topics, we must train ourselves to be more aware of the re-assemblages that emerge from our presence on the field and the subsequent introduction of new interacting forces.

References Agamben, G. (1998). Homo Sacer: Sovereign power and bare life. (D. Heller-Roazen, Trans.). Stanford University Press. Alabassi, M. (2018). Jordan remains vulnerable to ISIS but the fight is on. The Arab Weekly. Last accessed: September 2020. Albadra, D., Vellei, M., Coley, D. A., & Hart, J. A. (2017). Thermal comfort in desert refugee camps: An interdisciplinary approach. Building and Environment, 124(1), 460–477. Dalal, A., Darweesh, A., Misselwitz, P., & Steigemann, A. (2018). Planning the ideal refugee camp? A critical interrogation of recent planning innovations in Jordan and Germany. Urban Planning, 3(4), 64–78.

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DeLanda, M. (2006). A new philosophy of society: Assemblage theory and social complexity. Continuum. Deleuze, G., & Guattari, F. (1987). A Thousand Plateaus: Capitalism and Schizophrenia. (B. Massumi, Trans.). Continuum International Publishing Group. Foucault, M. (2004). The Punitive Society: Lectures at the College de France, 1972–1973. (B. E. Harcourt, F. Ewald, A. Davidson, Eds., & G. Burchell, Trans.). Palgrave MacMillan. Foucault, M. (2007). Security, Territory, Population: Lectures at the Collège de France, 1977– 78. Palgrave Macmillan. Gatter, M. N. (2018). Rethinking the Lessons from Za’atari Refugee Camp. Forced Migration Review, 57, 22–24. Kassay, A. (2019, February 24). The unwanted return of daesh fighters. The Jordan Times. Rothe, D., Fröhlich, C., & Rodriguez Lopez, J. M. (2020, Otober). Digital Humanitarianism and the visual politics of the refugee camp: (Un)Seeing Control. International Political Sociology, 1–22. Tsourapas, G. (2019). The Syrian refugee crisis and foreign policy decision-making in Jordan, Lebanon, and Turkey. Journal of Global Security Studies, 4(4), 464–481. UNHCR. (2020, July). Jordan - Zaatari Refugee Camp. Zaatari Camp Fact Sheet . reliefweb.int/sites/reliefweb.int/files/resources/Zaatari%20Fact%20Sheet%20July%202020.pdf. UNHCR. (2019, June). Jordan: Araq Refugee Camp. Azraq Fact Sheet . From reliefweb.int/sites/reliefweb.int/files/resources/70193.pdf. Wiertz, T. (2020). Biopolitics of migration: An assemblage approach. Environment and Planning C, 0(0), 1–14.

When Law Exacerbates Vulnerability: The Case of Undocumented Migrant Prostitutes Under the German Prostitutes Protection Act of 2017 Yaiza Rojas-Matas 1

Introduction

This article discusses German prostitution legislation and the changes introduced in the last years with the purpose of protecting prostitutes. However, these changes in legislation have failed to reduce the exposure of all prostitutes to potential vulnerabilities. On the contrary it has specifically aggravated the exposure to potential vulnerabilities of undocumented migrant prostitutes. Within the framework of the new German prostitution legislation, this chapter discusses the vulnerabilisation of undocumented migrant prostitutes to factors such as poverty, violence, disease, and human trafficking. I introduce the 2002 Prostitution Act and the 2017 Prostitutes Protection Act, the latest German law regulating prostitution, by discussing the impact that these pieces of legislation have had on undocumented migrant prostitutes. This case study is based on Sandra Göttsche’s theoretical approach to the concept of vulnerability presented in this volume and how the context and specific circumstances of migrants expose them to an increased potential vulnerability that reach acute levels when factors such as an uncertain migration status, working in prostitution and lacking access to legal protection intersect. When it comes to prostitution there are certain terms that need clarification. In this chapter, I refer to both sex work and prostitution as the professional exchange

Y. Rojas-Matas (B) Fakultät für Wirtschafts- und Sozialwissenschaften Institut für Politikwissenschaft, Helmut-Schmidt-Universität, Hamburg, Germany E-Mail: [email protected] © The Author(s), under exclusive license to Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2021 N. Fromm et al. (eds.), Power in Vulnerability, Studien zur Migrations- und Integrationspolitik, https://doi.org/10.1007/978-3-658-34052-0_6

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of sexual services for an economic retribution.1 Other terms that will be often used in this chapter and that also need clarification are “human trafficking” and “forced prostitution”. Human trafficking (Menschenhandel in German) is defined in the article 232 of The German Criminal Code2 as the recruitment, transportation, transfer, harbouring or receipt of persons for the exploitation of this person’s personal or economic situation or their helplessness related to them being in a country different form their own. Human trafficking may include different practices such as the exploitation of someone’s prostitution or labour, forcing someone to beg, to commit a crime or to illegally remove an organ (Article 232 StGB). This definition of human trafficking is based on the 2001 Palermo Protocol.3 The exploitation of another person’s prostitution, also commonly referred to as “trafficking in women” for forced prostitution, is only one aspect of human trafficking.4 Human trafficking is a crime whose victims are commonly migrants, as pointed out in the definition above. It often takes advantage of the situation of helplessness of a person who is not in her/his own country and might not have a support system in place in her/his new location or might not have a good knowledge of her/his rights and possibilities in the reception society. In this regard, undocumented migrants are especially vulnerable to human trafficking because they often face a difficult personal and economic situation. Most prostitutes working in Germany are migrants. The European Network for the Promotion of Rights and Health among Migrant Sex Workers, TAMPEP, calculated back in 2010 that 63% of female sex workers in Germany were migrants (TAMPEP, 2010, p. 109). Within the category of migrant sex workers in Germany, one must differentiate between European migrants and non-European migrants because of their different access to a legal migration status.5 However, in this chapter, I will focus on the group that faces the added vulnerability of lacking 1

The use of the term “sex worker” is not devoid of political connotation. Advocates of models of prostitution regulation that are connected to abolitionism reject the use of this term because they consider that selling sex is not work but exploitation. The best-known example of an abolitionist system is the Nordic or Swedish Model. 2 Original name in German: Strafgesetzbuch—StGB. 3 The United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime was adopted by the UN General Assembly in the year 2000 and contains the most internationally accepted definition of human trafficking. 4 Potentially the most known one and is addressed in the German Criminal Code on the article 232a. 5 This distinction is relevant to the present discussion because citizens of other EU countries enjoy a freedom of movement within the Schengen area and are therefore legally allowed to take on any occupation they want in Germany under conditions identical to German citizens.

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a legal status in Germany while working in the sex industry, namely, undocumented migrants from outside the EU.6 It is not possible to determine the real number of undocumented migrants working in prostitution in Germany because of their dynamic mobility and their lack of official status or registration by the authorities. As the report Prostitution in Germany: Technical Consideration of Complex Challenges7 points out, there is no data indicating how many migrants overstay their visas and how many of them end up working in prostitution. However, there is a close connection between migration and prostitution (Czarnecki et al., 2014, p. 21). Most discussions about prostitution in Europe focus on the prostitution of women since most sex workers worldwide are cis- and transgender women.8 TAMPEP found that in 2008 in Germany 90% of prostitutes were cisgender women, and 3% transgender men and women (TAMPEP, 2010, p. 109). However, male prostitution is a reality, and one that is exceptionally high among certain vulnerable social groups, such as asylum-seekers, unaccompanied minors seeking asylum or migrants without a regular residence status, especially from the LGBTQ + community (Schlüter, 2017). The vulnerability of undocumented migrants is the central point in this article and will be examined through the lens of Sandra Göttsche’s conceptualisation of vulnerability from chapter I of this volume. Göttsche defines vulnerability as: ‘the possibility of the occurrence of a threat, or the potential that a system, group, society, or institution has of being harmed by it. It is this ’element of possibility’ that represents the connecting element between the different views of vulnerability within scientific disciplines. Vulnerability not only reveals potential harm, but also uncovers adaptation and coping strategies. Therefore, vulnerabilities must always be seen and analysed in the specific context in which they emerge and are identified.’ (Göttsche in this volume)

In this case, the context is Germany and its legal system that was developed to reduce the exposure of prostitutes to potential harms. German legislators have This chapter does not minimise the existence of severe vulnerabilities of migrant sex workers from the EU in Germany. 6 Undocumented migrants are usually but not exclusively migrants from outside the EU. An EU-citizen can under certain circumstances lose the right to free movement in the EU and therefore also become an undocumented migrant. 7 Title translated by the author. Original title in German: Prostitution in Deutschland – Fachliche Betrachtung komplexer Herausforderungen. 8 Cisgender is a person whose gender identity coincides with the sex in their birth certificate, while a transgender person’s gender identity differs from the sex on their birth certificate. Most sex workers in the world identify as female.

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done so with the explicit goal to protect prostitutes, because of the identification of prostitutes as a group, among workers, with specific protection needs. Germany therefore recognises that general worker protections are not enough for sex workers due to the specific vulnerabilities they face by exercising their profession. However, by not considering the diversity of backgrounds and situations of prostitutes in Germany, this legal system has further fragilised an already particularly vulnerable sub-group: undocumented migrant prostitutes. A number of factors such as an uncertain migration status, being a sex worker and often not knowing the language and culture, among others, intersect and particularly expose them to vulnerabilities. Against this background, this contribution seeks to answer the question what impact Germany’s new law has had on undocumented migrant prostitutes. I hold, that German legislation is an empirical example for the paradox described in Sandra Göttsche’s contribution, that efforts to reduce vulnerabilities all too often result in increased vulnerability, at least with regard to specific groups. After having defined relevant terms, this chapter introduces Germany´s approach to the legalisation and regulation of prostitution. In this section, I will start by analysing the first German legislation regulating prostitution: the 2002 Prostitution Act and its impact on the prostitution debate in Germany. This law embodied Germany´s first steps in the direction of becoming a well-known example among the countries where prostitution is legalised and regulated. However, the 2002 legislation received both criticism and support by experts (NGOs, social workers, and law enforcement) and prostitutes, which I will discuss in subsequent sections. Later, I will introduce the latest German piece of legislation on prostitution, the 2017 Prostitutes Protection Act, which builds upon the 2002 Prostitution Act and attempts to correct its deficiencies by introducing control measures against human trafficking and forced prostitution. This section also discusses the consequences that the introduction of the 2017 Prostitutes Protection Act had for undocumented migrant prostitutes working in Germany. For this reason, this chapter then focuses on the specific vulnerabilities of this particular group and its position in the conversation about prostitution in Germany. Finally, in the concluding section, I will provide recommendations regarding potential future improvements to the prostitution legislation in Germany.

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Prostitution legislation in Germany: From the Prostitutes Act of 2002 to the Prostitutes Protection Act of, 2017

In German legislation, prostitution is considered an “occupational choice entered into willingly on the part of the woman (men are a minority in prostitution)” (Walby et al., 2016, p. 118). This approach considers prostitution to be a legitimate choice, pursuing the recognition of female agency and power of decision, and avoiding falling into the depiction of women in the sex work industry only as vulnerable victims. This basic notion has been the base for all German legislations on prostitution until now. The BMFSFJ summarises Germany’s position and underlying ideology in the following manner: “In a free democratic state ruled by law, the risks, disadvantages and problematical implications associated with prostitution cannot be countered by forcing prostitution into the shadows using repressive measures. Rather, it must be possible to limit the problematical aspects associated with it by taking prostitution out of the shadows and monitoring the conditions under which it is practised in a manner that is based on the principles of the rule of law.” (BMFSFJ, 2007, p. 12)

This conceptualisation of prostitution as a legitimate occupation that cannot be equated with human trafficking, but which might overlap with it in numerous cases, is in line with the Global Alliance against Trafficking in Women (GAATW9 ) approach (Usman, 2014, p. 284–285). The GAATW approach is the basis of most national policies that legalise prostitution and regulate it as an integral part of a country’s workforce, leaving out morally charged discourses on prostitution that can be consistently found in other regulation models. Besides Germany, other examples of European countries that have legalised prostitution include the Netherlands and Austria. Within the framework of European policy, German law seeks to fulfil the 2011/36/EU Directive requirement of working on the reduction of “demand”, especially with regards to victims of human trafficking rather than the demand for prostitution or sex work. This sets the German system apart from others such as the Swedish one. It also tries to regulate and restrict the extent of the work of 9

The Global Alliance Against Traffic in Women (GAATW) is a world-wide Alliance of NGOs, whose International Secretariat collects and disseminates information, and advocates on behalf of the Alliance at regional and international levels. The members of this Alliance include migrant rights organisations; anti-trafficking organisations; self-organised groups of migrant workers, survivors of trafficking and sex workers; human rights and women’s rights organisations among others (GAATW).

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people profiting from the prostitution of others, such as pimps, madams, brothel owners, and so on, by focusing on the regulation and monitoring of prostitution businesses.

2.1

The 2002 Act Regulating the Legal Situation of Prostitutes (Prostitution Act)

The 2002 German Prostitution Act that legalised the situation of prostitutes was passed with the following goals: to improve the legal status, the social position, and the working conditions of prostitutes, to restrict the possibilities for the development of criminal activities related to prostitution, and to facilitate a way out of prostitution (Kavemann & Rabe, 2007, p. 9–11; Dodillet, 2013, p. 4). In other words, the aim was to reduce prostitutes’ vulnerabilities. In the context of the implementation of this law, two amendments to the German Criminal Code were made. These amendments were introduced in order to allow prostitutes to obtain employment contracts with the purpose of improving their working conditions and reduce their dependency on any procurer who might want to gain profit from controlling the commercial activity of the sex worker (BMFSFJ, 2007, p. 9). Much has been discussed about the Prostitution Act, its implementation, intentions and consequences for society, prostitutes and the people benefiting from their work. In its 2007 Report by the Federal Government on the Impact of the Act Regulating the Legal Situation of Prostitutes (Prostitution Act), the Federal Ministry for Family Affairs, Senior Citizens, Women and Youth (BMFSFJ) describes the Prostitution Act as intending neither to “abolish prostitution”, nor to “enhance its status” (2007, p. 9). The Act pursues the improvement of working conditions for sex workers by advancing their social and legal status, granting them access to social insurance, reducing stigmatisation of prostitutes and their dependency on procurers. By obtaining a worker status, prostitutes gained access to the same protection that workers in other sectors enjoy, with the potential of reducing their vulnerabilities considerably: they can now have a work contract, officially work on a freelance base, have health insurance, or pay into the national retirement fund. Many aspects of the 2002 Prostitution Act have been both praised and criticised by prostitutes, experts in the field and NGOs as well as by supporters of this and other prostitution regulation models. The criticism led to attempts of improvement through the 2017 Prostitutes Protection Act. Yet the new legislative text left undocumented migrant prostitutes and other marginalised and vulnerable groups unable to profit from any protection that the law might offer. Even the

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clauses and provisions of the law that could have a potential positive impact on prostitutes’ work, such as the possibility to be legally employed or work as freelance and, therefore, gain access to health insurance, did not take undocumented migrant prostitutes into consideration, as I will discuss below. First, the 2002 legislation was supposed to recognise the rights of prostitutes and enact their empowerment. The German system resolved to legalise prostitution because it is assumed to be an integral part of society and, thus, cannot be eradicated. Through the legalisation of prostitution, legislators aim to destigmatise the professionals of the sector and regulate their activities (Dodillet, 2013, p. 1). Prostitutes who work in a legalised and state-regulated industry may face fewer potential vulnerabilities than those working without legal protection. The legalisation of the industry may indeed reduce prostitutes’ exposure to all sorts of violence from their clients and procurers, including sexual violence such as being forced to have sex without a condom (Working Group on the legal regulation of the purchase of sexual services, 2004, p. 12–14). The law, however, does not include undocumented migrant prostitutes in Germany. Working in a safe environment where both parties involved can feel unthreatened, think their decisions through, and consent to the transaction can mitigate the exposure to unsafe situations, from violence to sexually transmitted diseases. Second, because of the German legislation, sex industry businesses too, such as brothels, massage parlours, and strip clubs, must operate within the introduced legal framework. These businesses that want to operate in a legal way are obliged to only hire documented workers, therefore reducing the chances of them hiring a victim of trafficking. Hiring undocumented women or women residing illegally in Germany might endanger the brothels’ “newly achieved legal status” (Cho et al., 2013, p. 9). In this sense, the legalisation should work as an encouragement for businesses, such as brothels, to work within the legal framework, which is beneficial for most parties involved. However, this does not include “[…] prostitutes working illegally in Germany, or those with drug addictions, [who] can hardly benefit from the improved legal situation.” (BMFSFJ, 2007, p. 44). Once more, by creating protections for some, this legislation propitiates the marginalisation of undocumented migrant prostitutes. Third, the 2002 legislation encourages the prosecution of traffickers, whose activities affect undocumented migrant prostitutes to a far greater extent. It seeks to drive criminal activity out of the prostitution market by creating a legal framework that leaves criminality out of the scene. There were fears among experts and detractors of the German approach that the Prostitution Act would make the

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prosecution of trafficking more difficult.10 However, the Report by the Federal Government on the Impact of the Act Regulating the Legal Situation of Prostitutes clearly states that this has not been the case: “Neither crime statistics compiled by the police at federal level nor statistics on criminal prosecutions in this area provide any valid data as to the impact of the Prostitution Act on criminal prosecution”. (BMFSFJ, 2007, p. 45). Fourth, this system allows for an open cooperation among prostitutes, police forces, and NGOs working in the field. A system in which a relationship of trust can be established between these parties allows for a safer working environment for sex workers, often independently of their migration status, by letting them report abuses to the police without fear of prosecution. This can work as a deterrent for abusive customers and procurers (Hayes-Smith & Shekarkhar, 2010, p. 50). As expressed by Katrin Kirstein, project coordinator at the NGO KOOFRA,11 in a system where sex work is legal, clients can play a role in contacting NGOs to require information about how to assist a potential victim of trafficking. Conversely, the criminalisation of clients would prevent them from reporting due to the fear of being prosecuted.12 Open cooperation among these actors is reduced when one or more of the parties involved faces legal repercussions. This is already the case for undocumented migrants working within the German system, who could face charges because of their irregular migration status and even face deportation when in contact with the police. Finally, and most importantly in the context of this chapter, there was plenty of specific criticism against the consequences of the 2002 Prostitution Act on the lives of undocumented migrant prostitutes. The aforementioned governmental report on the Prostitution Act also presents the following remarks: “The Prostitution Act by and large disregarded the legal and social situation of immigrants without a valid residence permit, the situation of minors engaged in prostitution 10

In German legislation profiting from the work of a prostitute is legal, while it is illegal to seek “excessive profit-taking” and the exploitation of the prostitution of others. The latter is directly associated with trafficking and it is therefore important to control it (Walby et al., 2016, p. 96). However there has been difficulties in drawing a clear line between reasonable profit taking and the unlawful exploitation of someone else’s sex-work. 11 KOOFRA or the Koordinierungsstelle gegen Frauenhandel e. V. This NGO located in the city of Hamburg, Germany, assists women and persons who identify as transgender who are victims of human trafficking for sexual or labour exploitation. KOOFRA supports them in providing them with counselling and accompaniment in their native language, as well as assistance in finding accommodation, medical care, legal assistance, psychological support, etc. 12 Kirstein, Katrin. Project coordinator at KOOFRA. Personal Interview. May 24, 2017. Hamburg.

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and drug-related prostitution.” (BMFSFJ, 2007, p. 9). This omission of certain vulnerable groups was discussed among experts even before the introduction of the new 2017 legislation but no corrections or improvements in this regard were introduce in the 2017 Prostitutes Protection Act, which I will discuss below. However, the 2002 Prostitution Act did not extend its protection to undocumented migrants. These migrants cannot legally work in Germany and are therefore not allowed to work neither as freelance nor as employees, leaving them without access to social and health insurances, as well as without legal mechanisms to protect them from potential abuses from clients and/or procurers. This lack of protection has translated directly into a more acute vulnerability to abuses and human trafficking and forced prostitution due to their fear to approach the authorities and their lack of knowledge on how to navigate the German system (language and culture, legal system, bureaucracy, etc.).

2.2

The 2017 Prostitutes Protection Act13

On July 1st, 2017, a new prostitution law came into effect in Germany, the Prostitutes Protection Act. This Act seems to have been conceived as a further step in the fight against trafficking and for the protection of sex workers, including potential improvements in comparison to the 2002 legislation. Among its many changes, this law introduced control measures that would force prostitutes to come forward and avoid working informally, what would mainly hinder forced prostitution and human trafficking. In the words of the BMFSFJ, the Prostitutes Protection Law has been implemented with the purpose of improving the protection of the people working in the sex industry, to strengthen their right to self-determination, to guarantee their labour conditions, and to improve their legal protection (BMFSFJ, 2017, p. 2). However, the Prostitutes Protection Act has received much criticism, mainly from sex workers and NGO workers in the field. The legislators seem to ignore these voices, which have expressed their concerns about the security problems that arise with the introduction of the law, and the further marginalisation of the most exposed to vulnerabilities within the sex work industry (Herter & Fem, 2017, pp. 7–8 and 21). Even when identifying prostitutes as a vulnerable group worthy of further protection than other workers in Germany, this law still overlooks groups that are most exposed to vulnerabilities, namely undocumented migrant prostitutes who, due to their lack of legal status, cannot take advantage of the protection that the law provides. 13

Original name in German: Prostituiertenschutzgesetz –ProstSchG.

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The law introduces the creation of a “sex worker ID” that prostitutes must always carry with them while working and must be able to present to the police, government officials or brothel owners. Sex workers must also attend a counselling session before they start working and then once a year as long as they work in the sex industry or twice a year if they are under 21. The counselling session also serves to inform sex workers of their rights and duties -such as the payment of taxes-, their health and social counselling possibilities, as well as emergency contacts (Art. 7 (2) ProstSchG). The introduction of a compulsory ID has been perceived as problematic by all prostitutes due to data protection and security reasons, as I will discuss in the following section. During the counselling session, if the person is assessed as a victim of forced prostitution or of human trafficking, the counsellor will take measures to protect them, such as forwarding them to the competent authorities (police, witness protection programs, etc.) or an NGO. The measures taken in this case might vary from state to state in Germany. By assessing whether a person might be forced to work in prostitution and putting them in contact with specialised organisations, the law seeks to reduce the possibilities for forced prostitution and trafficking for sexual exploitation to take place in Germany. The law, therefore, introduces an official registry of sex workers and penalises any person who works in sex work without being registered, even the ones who cannot legally register. The 2017 Act introduced many changes for prostitutes working legally in Germany, some of these changes might entail actual improvements in their situation while others might entail a deterioration of their situation. However, and most importantly, none of the protections introduced by the 2017 Act have improved the situation of undocumented migrant prostitutes.

2.3

The Prostitutes Protection Act and Undocumented Migrant Prostitutes

Although the shortcomings of the 2017 Act affect all prostitutes, they have a much higher impact on the undocumented migrant prostitutes. Numerous sex workers’ organisations and NGOs supporting sex workers started already in 2015 to express their concerns during the drafting of this law (Deutsche AIDS-Hilfe 2015; BUFAS, 2015). The compulsory yearly control and registration in order to continue working legally sounded problematic and threatening to sex workers even before its official implementation. However, sex workers and NGOs were not the only ones to take issue with the 2017 Act. The governments of certain German states have positioned themselves against the compulsory registration and

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still question its purpose and success (Scharrenbach, 2019, p. 3). Some expressed their concerns for the loss of privacy that this measure might entail and the subsequent security threat to prostitutes in general, while others pointed out that the compulsory registration is not possible for irregular immigrants and other marginalised groups, what could further marginalise them. The German political party Die Grünen expressed their rejection for the idea of a compulsory registration for sex workers, even before the implementation of said law, pointing out that it is a risk for their anonymity and safety (Bündnis 90 die Grünen, 2014, p. 5). The main goal of this compulsory counselling session is to assess whether the person goes into prostitution willingly or not (Herter & Fem, 2017, p. 9) and therefore their vulnerability to forced prostitution and human trafficking. However, it risks pushing marginalised and vulnerable groups to an even more precarious situation. A prostitute who is an undocumented migrant cannot take part in the counselling session and thus will not be able to have a prostitute ID. In order to avoid legal consequences, she or he will have to work underground. Undocumented migrant sex workers are unable to take part in the official structures of protection and regulation for prostitutes in Germany. They are, for instance, unable to register as prostitutes if they do not have a valid visa or a visa that allows them to take up work in Germany (student visa without work permit, etc.). This is made explicit in Sect. 4, subsection 2 of the Act: “foreigners, who are not entitled to free movement of people, have to proof at the moment of registration that they are allowed to work as employees or as freelance”.14 In such a case, undocumented migrant prostitutes face the impossibility of working within a legal prostitution establishment, because the owner would risk losing their licence. When found working without a registration and a prostitute ID they could face fines of up to 1000 euros. This, in consequence, pushes prostitutes without the possibility to register to hide and work in worse conditions. It is the intersectionality of the stigmas attached to being a sex worker, a migrant, and an undocumented migrant, that leaves this specific sub-group particularly vulnerable to human trafficking and forced prostitution: “Migrant sex workers are forced into living and working in extremely disadvantaged circumstances and face even greater isolation, vulnerability and social exclusion than other sex workers. They are primarily dealt with and controlled through immigration legislation rather than sex work laws – while still being impacted by the policing of sex work, and both legally and socially disadvantaged as a result of their migrant status […]

14

The author’s own translation.

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Putting the enforcement of immigration rules ahead of people’s fundamental rights prevents sex workers without regular status from accessing services, reporting crimes and getting protection.” (TAMPEP,15 2019, p. 2).

As we see in this quote, immigration legislation is one of the most important factors contributing to the vulnerability of undocumented migrant prostitutes, either victim of human trafficking or not, avoid attending official counselling sessions because of their irregular situation and the legal consequences that they might face. A prostitute with no legal status would generally avoid contacting the police, even if she falls victim to abuse. Some might even avoid contacting NGOs and other support structures in fear of facing consequences if their situation is known. This fear is often exploited by clients and pimps or madams who abuse the situation of vulnerability to exert control over a prostitute. The 2017 Act is an example of how a structure thought to reduce vulnerabilities can create new ones, or reinforce pre-existing ones, and strongly affect the people who are not allowed to play by its rules. It is an empirical illustration of Sandra Göttsche’s argument that “Paradoxically, trying to correct vulnerabilities often produces new vulnerabilities” (Göttsche in this volume). Migrant prostitutes without a regular status in Germany are exposed to vulnerabilities specific to them, as well as to the same vulnerabilities other prostitutes face. Therefore, by not being able to work within the law and take advantage from its potential benefits, they are acutely exposed to vulnerabilisation as a result of the intersection of multiple risk factors. In this same line, a sex worker who cannot resort to police protection because of her/his irregular migration status faces a high probability of falling victim to a human trafficking network. Their situation of uncertainty and insecurity can be exploited to control and manipulate them, whereas their fear of potential repercussions if they contact the police often stops them from attempting to escape their situation. As stated by TAMPEP: State bodies should recognise restrictive immigration legislation, and anti-prostitution policies as contributing factors to human trafficking and related abuses. (TAMPEP, 2019, p. 4.).

This is also related to the fact that a victim of human trafficking in Germany, who is an undocumented migrant, will only gain access to a regular migration status 15

TAMPEP is a migrant-led sex worker organisation that works on advocacy and networking to amplify the voices of migrant sex workers in Europe.

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by declaring herself a witness against her traffickers, provided that she is considered as a reliable witness by the prosecutors. However, in case of post-traumatic stress disorder (PTSD), being considered a reliable witness can be very challenging. It is indeed common for people suffering from PTSD to not be able to concentrate on specific tasks for a long time or even remember parts of their past, specifically of the traumatising experiences. This can be quite detrimental to their assessment as reliable witnesses in a case, and therefore their potential access to a secure migration status. Moreover, being a witness in a case of human trafficking means that they might need to face their traffickers in court, which could trigger a re-traumatisation. In the praxis, they are made to choose between the following alternatives: they can choose to remain undocumented but risk deportation; or they can come forward as potential witnesses but risk not being considered reliable. In the latter case, victims of human trafficking can face legal consequences because of their migration status and, in case they are actually considered a reliable witness, endure the security risk and psychological burden of facing again their perpetrators in court. Finally, it is indispensable to discuss the situation that undocumented sex workers face during the Coronavirus crisis, which has worked as an aggravating factor to their vulnerability. Brothels closed on the 16th of March 2020 as part of the lockdown to avoid the spread of the virus in brothels. This has left many prostitutes facing serious financial difficulties. The prostitutes that are registered under the 2017 Act and are employees have been able to benefit from governmental measures such as the reduction of working hours -Kurzarbeit in German- through their employer. Freelance prostitutes have had the chance to apply for the same governmental support as any other self-employed person in Germany. However, prostitutes without a regular migration status have been left with no alternative. Many of them have been working on the streets even during the Coronavirus related restrictions, being forced to ignore the risk to their lives, considering that, because of their legal status, they do not have access to a health insurance. Furthermore, some members of the German Parliament (Bundestag) have argued since the March 16th suspension of prostitution that prostitution should be permanently prohibited in Germany (Winkelmeier-Becker, E. et al., 2020, p. 2). Some of them, such as Ms. Leni Breymaier, politician from the German political party SPD, started lobbying for an abolitionist model in Germany even before the Coronavirus pandemic. Their efforts have been reinforced by the temporary restrictions on prostitution during this global pandemic. Sixteen German public representatives are currently pushing for a permanent closure of brothels instead of relaxing the measures taken during the worst part of the pandemic. In a letter to Winfried Kretschmann, Minister-President of the state of Baden-Württemberg, they

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ask for a permanent closure of brothels and justify the introduction of the Swedish Model in Germany. One of the reasons for this petition is the “Super spreader potential” of prostitution in case of a pandemic such as the current one, but also equally importantly for them, because they consider the conditions in prostitution to be “inhumane, destructive and misogynistic”16 (Winkelmeier-Becker, E. et al., 2020, p. 2). This kind of morally charged discourse reflects the attempt to promote a moral agenda rather than pursue the protection of sex workers. A definitive prohibition of prostitution would not change the fact that it continues to be an important option to earn a living in Germany for undocumented women, even during a pandemic, until valid alternatives are available such as, access to a work permit. The complete eradication of prostitution could only be a solution in a context in which every prostitute, including undocumented migrant prostitutes, is given a valid alternative to earn a living. Otherwise, it is most likely a sentence to poverty and further exclusion from society. As of March 2021, prostitution is still not allowed in Germany due to Coronavirus-related restrictions. During a short period of time in September and October 2020 certain German states such as Hamburg, Bremen, Lower Saxony, Schleswig–Holstein, and North Rhine-Westphalia allowed it temporarily with certain restrictions, for instance, the use of a protective mask, however it was forbidden again when stricter restrictions were implemented in November 2020.

3

Conclusion

More than four years after the implementation of the 2017 Prostitutes Protection Act, the situation does not seem to have improved significantly. Many sex workers continue to work without taking part in the compulsory counselling sessions. The number of registered prostitutes has not grown as planned, there continues to be undocumented migrants working in prostitution in Germany and, furthermore, there is no data showing that the implementation of this law has had a significant impact in the detection and support for victims of human trafficking, one of its main goals. This case study, through the 2017 Prostitutes Protection Act, exemplified the theoretical approach of Sandra Göttsche, in the introduction of this volume. She argues that “not all human beings are equally exposed to vulnerability. Vulnerability also depends on the specific social, political, economic, historical, cultural, 16

Translation by the author. The original text in German says: „menschenunwürdig, zerstörerisch und frauenfeindlich“.

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and geographical factors—context matters.” (Göttsche in this volume). Context matters, and the current context of undocumented migrant prostitutes exposes them to vulnerabilities that are grounded in Germany’s 2017 Prostitutes Protection Act and the structures that this Act inherited from the original 2002 Prostitution Act. The approach to minimise prostitutes’ vulnerabilities has proved to be counterproductive, first and foremost with regard to undocumented migrant prostitutes who have become more vulnerable since the implementation of the Prostitutes Protection Act, but also to a certain extent to all prostitutes. The adoption of this law pushed the already marginalised group of undocumented migrant prostitutes further into vulnerabilisation, forcing them to work underground in order to protect themselves from legal repercussions. Undocumented migrant prostitutes face a double stigmatisation due to the intersectionality of their lack of legal migration status and their work as prostitutes, leading to an exacerbated exposure to vulnerabilities. Because of the risk of deportation, they do not have access to police protection, and because of their lack of legal status, they do not have access to basic worker rights such as healthcare, pension, or unemployment subsides. Legislators should keep a focus on the potential consequences of their protective measures because as quoted previously in this chapter “Paradoxically, trying to correct vulnerabilities often produces new vulnerabilities” (Göttsche in this volume). Prostitution has existed in Germany for a very long time, and it is unlikely that it will disappear in the foreseeable future. This acceptance of prostitution as an existing practice in society led to its legalisation because to create a legal framework to protect prostitutes instead of fighting against prostitution was identified as a more efficient strategy by legislators. Legislators identified prostitutes as a collective particularly vulnerable and worthy of protection and they put in place the corresponding mechanisms of protection that exceeded the protections in place for other professions. However, if the purpose of the Prostitutes Protection Law is to protect a group of workers who are identified as highly vulnerable, then we can wonder why undocumented migrant prostitutes are left out. Many undocumented migrants work in prostitution and will continue to do so. Keeping them out of the protection of the law exposes them to human trafficking networks and forced prostitution. Admittedly, it is understandable that legislators do not write laws for groups of people who are not legally part of the society, such as undocumented migrants. This issue should be first addressed from a migration regulation perspective. Having access to a legal migration status would offer some of the prostitutes, who cannot currently find an alternative, the choice of an exit out of the sex industry. Legislators should keep in mind the situation of undocumented

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migrant prostitutes when legislating for the protection of prostitutes in Germany because regulating this sector without considering the specific consequences for undocumented migrants has proven insufficient. If protection cannot be provided for undocumented migrant prostitutes in legislative terms, they should be at least provided in terms of policy and social measures such as strong partnerships with specialised NGOs and the training of relevant actors (especially social workers and law enforcement) who might come in contact with these group of prostitutes in their line of work. Furthermore, legislators must keep in mind what the potential consequences of their decisions could be for marginalised groups within prostitution. As written above: the complete eradication of prostitution without a valid alternative to earn a living is most likely a sentence to poverty and further exclusion from society. The legislation on prostitution has evolved and must continue evolving, adapting, and learning from its mistakes by consulting with experts, social workers in the field and prostitutes. Making decisions about prostitutions based on a political or moral agenda does not create sustainable solutions and continues to exclude at risk parts of society, therefore exacerbating their exposure to vulnerabilities. This should be avoided at all costs. Undocumented migrant prostitutes, as well as all other prostitutes, should be able to decide for themselves whether they want to stay in prostitution or not and this is only possible if they are given valid alternatives. Their needs and potential vulnerabilities should be part of all policy discussions on prostitution. Protecting undocumented migrant prostitutes is a necessary step in the fight against human trafficking and forced prostitution in Germany, as well as in the fight for fair working conditions for sex workers.

References BMFSFJ- Federal Ministry for Family Affairs, Senior Citizens, Women and Youth. (2007). Report by the Federal Government on the Impact of the Act Regulating the Legal Situation of Prostitutes (Prostitution Act). https://www.bmfsfj.de/blob/93346/f81fb6d56073e3a0a8 0c442439b6495e/bericht-der-br-zum-prostg-englisch-data.pdf. BMFSFJ - Bundesministerium für Familie, Senioren, Frauen und Jugend. Prostituiertenschuzgesetz: Informationen über das Verfahren zur Anmeldung einer Prostitutionstätigkeit. (2017). https://www.bmfsfj.de/blob/117100/02d80fdd00e863bd21e9bbc7a30d6405/pro stituiertenschutzgesetz-info-verfahren-und-anmeldung-prostitutionstaetigkeit-data.pdf. Accessed 31 Mar 2020. Bundesministerium der Justiz und für Verbraucherschutz. German Criminal Code. (2017). https://www.gesetze-im-internet.de/englisch_stgb/. Accessed 24 May 2017.

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BUFAS: Bündnis der Fachberatungsstellen für Sexarbeiterinnen und Sexarbeiter e.V. Stellungnahme. (2015). http://www.bufas.net/DOKUMENTE/bufas%20Stellungnahme% 202015-09-10.pdf. Accessed 3 April 2020. Bündnis 90 die Grünen. (2014). Fraktionsbeschluss vom 23.09.2014: Prostituierte Schützen und Stärken - die Grüne Position zur Prostitution. https://www.gruene-bundestag.de/fil eadmin/media/gruenebundestag_de/fraktion/beschluesse/Beschluss_Prostitutionsgesetz. pdf. Accessed 1 July 2017. Czarnecki, D. et al. (2014). Prostitution in Deutschland – Fachliche Betrachtung komplexer Herausforderungen. https://www.spi-research.eu/wp-content/uploads/2014/11/Prosti tutionFinal.pdf. Accessed 9 Oct 2020. Cho, S.-Y., Dreher, A., & Neumayer, E. (2013). Does legalized prostitution increase human trafficking? World Development, 41, 67–82. https://doi.org/10.1016/j.worlddev. 2012.05.023 Deutsche AIDS-Hilfe. Prostituiertenschutzgesetz: neue Gefahren statt Schutz. (2015). https://www.aidshilfe.de/meldung/prostituiertenschutzgesetz-neue-gefahren-statt-schutz. Accessed 3 April 2020. Dodillet, S. (2013). Deutschland – Schweden: Unterschiedliche ideologische Hintergründe in der Prostitutionsgesetzgebung. http://www.bpb.de/ajax/183654?type=pdf. Accessed: 19 June 2017. European Parliament. (2011, April 15). Directive 2011/36/EU of the European Parliament and of the Council of the European Union. (2011/36/EU). Göttsche, S. (2020). The accumulation of vulnerability aspects in the figure of the migrant—A theoretical approach. Global Alliance Against Traffic in Women (GAATW). (2020). Who we are. https://gaatw.org/ about-us. Accessed 16 June 2020. Hayes-Smith, R., & Shekarkhar, Z. (2010). Why is prostitution criminalized? An alternative viewpoint on the construction of sex work. Contemporary Justice Review, 13(1), 43–55. https://doi.org/10.1080/10282580903549201 Herter, A., & Fem, E. (2017). Professed protection, pointless provisions– Overview of the German Prostitutes Protection act (Prostituiertenschutzgesetz – ProstSchG). http://www. sexworkeurope.org/sites/default/files/userfiles/files/ICRSE_Overview%20of%20the% 20German%20Prostitutes%20Protection%20Act_May2017_EN_02.pdf. Accessed 8 June 2017. Kavemann, B., & Rabe, H. (2007). The Act Regulating the Legal Situation of Prostitutes – implementation, impact, current developments: Findings of a study on the impact of the German Prostitution Act. http://www.cahrv.uni-osnabrueck.de/reddot/BroschuerePr ostGenglisch.pdf. Accessed 23 June 2017. Scharrenbach, I. (2019). 20. Sitzung des Ausschusses für Gleichstellung und Frauen am Donnerstag, 9. Mai 2019 zum Tagesordnungspunkt: „Sachstandsbericht zur Umsetzung des Prostituiertenschutzgesetzes in Nordrhein-Westfalen im Hinblick auf das Mitführen der Anmeldebescheinigung“. https://www.landtag.nrw.de/portal/WWW/dokumente narchiv/Dokument/MMV17-2008.pdf. Accessed 22 May 2020. Schlüter, N. (2017). Interview mit einer Streetworkerin über junge Geflüchtete und Prostitution: “Das Thema ist sehr tabuisiert und mit Scham behahtet”. In Jetzt. https://www.jetzt.de/sex/interview-mit-einer-streetworkerin-ueber-junge-gefluecht ete-und-prostitution. Accessed 27 Oct 2020.

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TAMPEP International Foundation. (2010). TAMPEP National Mapping Reports. https://tam pep.eu/wp-content/uploads/2017/11/ANNEX-4-National-Reports.pdf. Accessed 6 Oct 2020. TAMPEP International Foundation. (2019). Position Paper, February 2019. https://tampep.eu/ wp-content/uploads/2019/02/TAMPEP-Position-paper-CEDAW-2019.pdf. Accessed 31 July 2020. The Prostitutes Protection Act of 2017. (original name: Prostituiertenschutzgesetz – ProstSchG). https://www.gesetze-im-internet.de/prostschg/BJNR237210016.html. Accessed: 13 Oct. 2020. The Prostitution Act of 2002 (original name: Prostitutionsgesetz - ProstG). https://www.ges etze-im-internet.de/prostg/BJNR398310001.html. Accessed 13 Oct 2020. UN General Assembly. (2000). Protocol to prevent, suppress and punish trafficking in persons, especially women and children, supplementing the United Nations Convention against transnational organized crime, 15 November 2000. https://www.refworld.org/docid/472 0706c0.html. Accessed 3 Nov 2020. Usman, U. M. (2014). Trafficking in women and children as vulnerable groups: Talking through theories of international relations. European Scientific Journal, 10(17), 295. Walby, S. et al. (2016). Study on the gender dimension of trafficking in human beings: Final report. http://ec.europa.eu/anti-trafficking/sites/antitrafficking/files/study_on_the_ gender_dimension_of_trafficking_in_human_beings._final_report.pdf. Accessed 29 Mar 2017. Winkelmeier-Becker, E. et al. (2020). Letter to the Minister-President of the state of Baden-Württemberg Winfried Kretschmann. 15.05.2020. https://www.leni-breymaier.de/ dl/20-05-15_MP_Kretschmann_Shut_down_fuer_Bordelle_Unterstuetzung_fuer_Nor disches_Modell.pdf. Accessed 28 July 2020. Working Group on the legal regulation of the purchase of sexual services. (2004). Purchasing sexual services in Sweden and the Netherlands: Legal regulation and experiences. An abbreviated English version. https://www.regjeringen.no/globalassets/upload/kilde/jd/ rap/2004/0034/ddd/pdfv/232216-purchasing_sexual_services_in_sweden_and_the_ned erlands.pdf. Accessed 7 July 2017.

Germany, a Gay H(E)aven? Heteronormativity in LGBTIQ + Asylum Cases Robert Menzies and Jonas Nawrath

“Flee, but make sure you wear pink” (Gartner, 2015, p. 12)

1

Introduction

The so-called refugee crisis1 has elicited strong emotional and political responses in recent years and continues to pose a complex challenge for countries across Europe, including Germany. This includes the lesbian, gay, bisexual and transgender, intersex, and queer (hereafter LGBTIQ + )2 migrants who seek protection in Germany but continue to be overlooked by policy makers and practitioners but The contribution by Robert Menzies to this research was made fully in his private capacity as a practitioner and researcher and the views expressed in this paper are not associated with his current work at the International Organization for Migration (IOM) in Germany. R. Menzies (B) Berlin, Germany J. Nawrath Ribnitz-Damgarten, Germany 1

Author’s note: The term “crisis” has been used to overemphasise the negative impacts of the issue and while it is often used as neutral term in the current discourse, this paper will instead use the term challenge to refer to the issues related to the mass mixed migratory movements of 2015/2016. 2 LGBTIQ + is a commonly used acronym for Lesbian, Gay Bisexual, Transgender, Intersex and Queer plus and is intended to include all persons with non-heterosexual sexual orientations, all gender identities and expressions and persons with diverse sexual characteristics. © The Author(s), under exclusive license to Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2021 N. Fromm et al. (eds.), Power in Vulnerability, Studien zur Migrations- und Integrationspolitik, https://doi.org/10.1007/978-3-658-34052-0_7

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also by many scholars. They leave their home countries due to structural, personal, or cultural violence (see Galtung, 1997) on the basis of their diverse sexual orientation, gender identity/expression and/or sexual characteristics (SOGIESC hereafter). “The German Lesbian and Gay Association (Lesben und Schwulen Verband Deutschland) estimates that out of the nearly 1.6 million refugees that have been registered in Germany between 2015 and 2018 approximately 60,000 are LGBTQI + individuals from countries in the Middle East, Africa, South Asia and the Caribbean” (Tschalaer & Held, 2019). LGBTIQ + migrants also face intersectional challenges as they are often subject to so called double discrimination, both from their own and the host community based on homophobia, biphobia, and transphobia as well racial prejudices, respectively. Indeed, “queer refugees often find themselves at the margins of migration and international development research, law, policy and practice.” (Gartner 2016 intro) given the underlying assumptions in this area of policy that all migrants are heterosexual. These heteronormative assumptions can render them uniquely vulnerable. LGBTIQ + migrants are often invisible to migration management regimes concerned with sorting asylum seekers. As a distinct group seeking protection, they have to substantiate during the hearing of their asylum claim adjudication that their gender identity is a basis for their forced flight. While gender perspectives are already an important part of the debate in asylum claims processing, there is a lack of reliable knowledge about gender-specific violence during the asylum seekers’ journeys, especially after arrival in a safe destination country such as Germany. Through the linkage of this gender lens and the causes of violence that vulnerable migrants can experience in their journeys, synergies are used in order to identify issues that cannot be sufficiently explained or addressed through existing research within one of these fields alone. This paper does not claim to be able to explain all forms of gender-specific violence in the course of asylum seekers’ journey to Germany. It will focus however solely on exploring the epistemic violence that LGBTIQ + migrants report in the asylum process as a pilot study. By supplementing our data from an interview3 with findings of existing research from various disciplines and research strands, the research gap in the area of heteronormative bias and resulting epistemic violence and migrant vulnerability in Germany can be interrogated. While widely used especially in western discourse it can be culturally inappropriate or inadvertently reductive and exclusionary. Therefore, this paper will at times use the term diverse sexual orientation, gender identity and expression and/or sexual characteristics (SOGIESC) to capture the broad spectrum of lived realities of people who may not conform to or recognise the use of western terms describing their diverse attractions and identities. 3 The interview was conducted by Jonas Nawrath, on 1.12.2018, as part of an essay at the Helmut-Schmidt University, Hamburg, Germany,

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This paper specifically seeks to examine the credibility assessment in refugee status determination for LGBTIQ + asylum seekers through a personal hearing conducted by case workers of the Federal Office for Migration and Refugees (BAMF). In this hearing, the BAMF representative, generally an adjudicator, decides on the basis of the asylum seeker’s story how credible they appear to be and to what extent they are granted protection or not. This procedure describes an interesting break in the otherwise extremely rational, legally regulated process, since this interaction at the micro level represents a particularly personal, subjective, and difficult to verify component of the asylum procedure. For LGBTIQ + migrants, the question that follows is therefore to what extent the (presumably) mostly heterosexual adjudicators can succeed in reconstructing the history of the applicants’ journeys. By using this example of the credibility test, this paper seeks to better understand the vulnerabilities of asylum claimants with diverse SOGIESC. In addition, the paper aims to draw attention to a research gap regarding the impact of heteronormativity, which merits further research based on the initial insights gained from a single case pilot study. The central claim made by this paper is that the asylum procedure uses a credibility test, which is shaped by the heteronormative and stereotypical expectations of the BAMF staff. This means that LGBTIQ + asylum seekers, who do not conform to the heteronormative gender roles expected by the decision-makers, are often regarded as untrustworthy and, thus, are at a disadvantage. This disinterest in the situation of LGBTIQ + migrants could lead to their case for protection being less favourably assessed. The underlying question that arises is: to what extent do heteronormative ways of adjudicating represent an act of violence (vulnerantality) in asylum decisions of LGBTIQ + migrants? . Methodology and Structure The methodological starting point of this pilot study is limited to a semi-structured interview with a gay male Syrian refugee which is used as an illustrative single case study for the conceptual contribution of this chapter. Our sample is limited to this single case because of the difficulty to recruit interviewees willing to discuss such a sensitive topic. However, we hope that our contribution could serve as a pilot study that would lead to a well-funded and systematic assessment of the heteronormative biases in the refugee determination status of SOGIESC subjects in Germany. The goal of the interview was to learn about the individual life story, personal opinions and perspective of an LGBTIQ + refugee and the problems faced during

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the asylum process. Through the insights gained from this initial interview, tentative conclusions could be drawn that will discuss the underlying yet unconfirmed assumption about the connection of heteronormativity to the concept of violence and resulting vulnerabilities. Due to the limited scope of this pilot study, recruiting LGBTIQ + asylum seekers proved very difficult due to trust issues, such that we cannot extrapolate our conclusion. Yet, our conceptual framework and initial findings presented here could be incorporated into and give direction to a more in-depth research agenda. It is all the more important that the present study, which combines a queer-feminist perspective with peace and conflict research, fills a research gap in (queer) migration studies. In the following section, we describe the current state of research and then present our conceptual framework. It draws on queer-feminist perspective “Gendered Understanding of the Actors” developed by Irene Dölling (2003) as well as on the approach of the “Migration-Violence-Nexus” formulated by André Bank, Christiane Fröhlich and Andrea Schneiker (2010). Additionally, it references the different aspects of vulnerability as set out in by Sandra Göttsche (Göttsche in this volume) and puts them into the context of LGBTIQ + persons in the asylum process in Germany. In the third section, we will first discuss the influence of heteronormativity and its impact on the perceptions of and expectations about sexuality and gender identity that flow into the asylum process of LGBTIQ + migrants. These insights will then be located in the “Migration-Violence-Nexus” in order to begin examining the extent to which the asylum procedure of LGBTIQ + migrants on the part of the BAMF represents an increased vulnerability and therefore risk of harm or violence. Further in how far heteronormative thinking and heterocentric frameworks make an objective assessment of asylum claims based on SOGIESC more difficult will be explored, given how these may lead to question how queer migrants engage in the system (Gartner, 2016, p8). Since this procedure involves the analysis of a question that has so far been only sporadically addressed academically, the fourth and final sections will outline possible recommendations for action and points of departure in the form of a critical starting point for follow up research. State of Play “Like all asylum seekers and refugees in Germany, SOGI claimants find themselves in a country full of contradictions: a generous border politic and welcome culture (‘Willkommenskultur’), but also a not so generous asylum process and often inadequate living conditions, combined with an increasingly hostile environment (indicated, for instance, by the weekly demonstrations by PEGIDA and numerous arson attacks on asylum seeker reception and accommodation centres). For SOGI claimants, their

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asylum seeker status intersects with gender, ‘race’, sexuality and religion in complex ways that shape their experience.” (SOGICA).

LGBTIQ + migration has historically been a niche topic in the field. Homosexuality has been increasingly addressed within the context of migration research, especially since the beginning of the twenty-first century, as a distinct ground for seeking asylum. The topic has been taken up in legal anthropological studies, although initially the asylum procedures of homo-, bi-, or transgender applicants were not specifically addressed. Instead, these initial studies critically examined the legal structures of asylum processes in Western destination countries. Nicole LaViolette (2004a) describes for the first time in a case study on Canada the impact of heteronormative stereotypes on judgements of asylum cases and in this context, she also addresses the problem of sexual orientation in the credibility assessment procedure. Subsequent works by Gregor Noll (2005) and Anthony Good (2007) focused more specifically on hearings in asylum processes and the resulting asylum decisions that are harder to justify from a legal perspective. Building on these first works, which were influenced by legal anthropology, the spectrum of research was increasingly expanded in the following years by feminist influences. In the existing research, reference should be made to the work of Nicole LaViolette (2010), Sean Rehaag (2009) and Jenni Millbank (2009). In particular, Millbank’s comparative study of asylum procedures of so-called “particular social groups” in Australia, Canada, New Zealand and the United Kingdom examined the influence of gender in asylum procedures of LGBTIQ + migrants. More recently the SOGICA project4 produced wide ranging research including case studies in Europe, particularly Germany, the United Kingdom and Italy. Notably based on their initial findings Nina Held (Held, 2019, p. 53) has highlighted the intersectionality of the legal and social challenges faced by what she terms as PSASOGIESC.5 Additionally, in the German asylum context the anthology “Refugees and Queers” contains a broad range of perspectives on the various issues LGBTIQ + persons may face from academics, practitioners and LGBTIQ + asylum seekers and migrant themselves. 4

“SOGICA was a research project funded by the European Research Council (ERC) exploring the social and legal experiences of asylum seekers across Europe claiming international protection on the basis of their sexual orientation or gender identity (SOGI). SOGI-related human rights violations are the basis of an apparently increasing number of asylum claims in Europe.” https://www.sogica.org/en/ 5 PSASOGI stands for persons seeking asylum who have diverse SOGIESC and was coined by Held.

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Further research on injustice to minorities in German asylum law was conducted by Barbara Friebertshäuser et al. (2007), whereby the legal perspective was expanded to include a feminist approach, often taking into account particular intersectional challenges faced by women. However, Friebertshäuser et al. focus primarily on the lack of quality of credibility tests and emphasise that traumatic experiences are concealed by the applicants out of fear of further discrimination (see also Titze, 2012). More recently, queer-feminist works with their focus on intersectionality, by scholars such as Katharina Hübner (2016) and Johannes L. Gartner (2015), concretely set out the effects of heteronormativity as a principle of subordination on the asylum process of LGBTIQ + migrants. The disproportionate impact of the long wait time exposes LGBTIQ + asylum seekers to further isolation, homo- and/or transphobia, racism, violence, resettlements, dependence, and an unknown future (Griffiths 2014; Hage, 2009). These interconnected pressures compound a frequently cited sense of hopelessness and disillusionment not just with LGBTIQ + asylum seekers own case but also with their chances to live a normal life in the receiving country. The prevalence of heteronormative standards embedded in the hearing exposes them to further epistemic violence within the asylum process but also beyond that in everyday life. As will be explored, LGBTIQ + asylum seekers find themselves effectively forced to present their non-normative, diverse SOGIESC in such a way as to be recognised by the adjudicator, who operates within a heteronormative framework of understanding. This results in a performance of their diverse sexuality or gender identity in the specific context of credibility assessment which may not align with the lived experiences or everyday practices. The lived realities of LGBTIQ + asylum seekers have been further explored by Tschalaer and others who were part of the Queer European Asylum Network.6 Tschalaer highlights that LGBTQI + persons not only often remain unrecognised and invisible in the asylum system, and are socially isolated lacking access to legal and social support but also are made more vulnerable because they do not confirm to the tacit bureaucratic understandings of what constitutes a homosexual lifestyle and, in this respect, life choices (Tschalaer M., 2020). This in turn shows that prejudices and resulting violence does not necessarily have to be a phenomenon that only exists in the country of origin, but can also occur intersectionally during the entire journey to the destination country and after their arrival there.

6

The Queer European Asylum Network (QUEAN) is an umbrella organisation founded in 2019 that brings together NGO practitioners, LGBTQI + refugees and activists and academics working on LGBTQI + migration and asylum in Europe” - https://queereuropeanasylum.org/

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Conceptual Framework

The analytical framework underpinning this paper combines three distinct concepts. First, Irene Dölling’s concept of the “actors’ understandings of gender” identifies heteronormative social patterns present in the asylum process as highlighted by the findings and incorporates them into the “migration-violence nexus” developed by Bank et al. Lastly it explores how different aspects of vulnerability, as outlined by Göttsche, can be linked to the intersectional challenges faced by LGBTIQ + migrants and refugees in particular those exacerbated by violence experienced upon arrival.

2.1

“Understanding of (doing) Gender” According to Dölling

The starting point for Irene Dölling’s (2003) concept is the binary distinction in modern societies between male and female as a crucial underlying principle through which the social order and the location of different actors therein is perceived. According to this distinction, there are only two genders, separated from each other by an unbridgeable biological difference, itself grounded in the genetic system of sex determination. In addition, these genders are exclusively defined with respect to each other: as well as what is classified as feminine is characterised by the absence of the masculine, and vice versa. This hegemonic distinction between two genders is naturalised, binary, comprehensive, and mutually exclusive. This binary classification is “constantly kept alive, reproduced or updated in vivid, linguistic as well as pictorial form” (ibid.), whereby the “understanding of gender” described by Dölling is produced. Since the female and male are constructed as biologically opposing genders, their sexual desires are meant to relate to the opposite gender. It follows that this binary distinction classifies only those bodies as socially acceptable which correspond to the ascribed gendered identity of male or female. These gendered identities are regarded as social norms, with which deviations (other gender identities and sexual orientations) conflict (Hübner, 2016, S. 244). Gender then is socially constructed, and social identities are subordinated to genetic differences. Genetic predispositions themselves are similarly reduced to a genetic sex determination system which itself relies on socially constructed connection between genetics and gender. Therein only those sexual orientations that correspond to the heteronormative ideal are considered to follow the supposedly natural order of things.

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Dölling (2003, S. 115–120) distinguishes between different factors from which an individual’s understanding of gender (“Geschlechterwissen”)7 is derived. In summary, these can be divided into the following areas: 1) the collective understanding of gender, 2) the lived experience of one’s own gender and, 3) the (individual) role-specific understanding of gender. Collective gender knowledge is formed or updated in various ways. A distinction can be made between everyday knowledge, which reproduces existing gender differences (often without reflection); expert knowledge, which confirms or challenges the hierarchical construction of gender; as well as knowledge promoted by popular culture and media, which, through its diversity of opinions and perspectives, produces a wider range of meanings (ibid.: 115). Collective gender knowledge thus describes a body of knowledge aiming to delineate normative from non-normative gender role expectations within society. In contrast to collective knowledge of gender, knowledge of lived gender experiences describes non-normative role models that are exemplified through their personal environment. Rather, individuals also have distinct experiences based on their own life path (specific family circumstances, social constellations, etc.) (ibid.: 118). Lived experience is therefore to be understood as “complex social construction(s) in the field of tension between structure and action” (Dausien, 1998, S. 265). Dölling argues that the gendered classification as masculine or feminine is so present in social reality that it is always built into the respective life history of the individual. One’s understanding of gender is therefore the unique outcome of a singular, one-off confrontation with the social world and the lived experience of doing gender themselves (Dölling, 2003, S. 119). Depending on an individual’s lived experience and the context in which they are acting, individual-biographical gender knowledge carries a different weight in relation to collective gender knowledge (Hübner, 2016, S. 244). In addition, the individual understanding of gender is acquired and applied in role- and position-specific manners. As actors in social space, individuals are positioned differently. The extent to which they possess different types of capital8 (see Bourdieu, 1992) enables them to access different roles and positions in the social fabric or excludes them from others (Dölling, 2003, S. 116). In the various contexts of action in which individuals find themselves, gender roles are hierarchised differently and sometimes defined differently. In this respect, it can be 7

Geschlechterwissen translation note https://www.genderopen.de/bitstream/handle/25595/ 37/D%C3%B6lling_2005_GeschlechterWissen_OCR.pdf?sequence=1&isAllowed=y. 8 Bourdieu’s distinguishes between different types of capital most notably cultural and social capital in addition to economic capital as a result of labour.

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concluded that individual’s performance of gender reflects their understandings of gender which itself is produced and reproduced in a historical-social context that is already structured by the perceived differences between the feminine and masculine. The decisive factor for the present pilot study will therefore be the extent to which heteronormative thinking, characterised by the strictly binary categorisation of expressed gender as masculine or feminine that is socially classified as “correct”, may enter, and influence the asylum process for LGBTIQ + migrants. In particular, this carries further weight in how such heteronormative understanding and practice of gender impacts those LGBTIQ + migrants and asylum seekers who do not conform to it, such as persons with trans identity or intersex persons who can face discrimination based on not just their sexual orientation or gender identity but also their status as an asylum seeker or migrant as well.

2.2

“Migration Violence Nexus"

From this perspective, it becomes apparent that violence can take many different forms and can be felt not just after fleeing, but also during such (generally perilous) journeys and/or in the country or region of origin before they began (ibid.). Their migratory journey then is a dynamic process that extends beyond their arrival in the safe country of destination, through which they are exposed to violence before and during it but even after their arrival (in Germany) (Bank et al., 2016). In light of this, it is especially important to deconstruct the multilayered concept of violence and to examine the impact of heteronormativity upon it. Physical violence is nonetheless particularly prevalent in refugee accommodations, since migrants can become victims, due to their gender, age, health or diverse SOGIESC (Bank et al., 2016, p. 5). In particular, within this context of the migration management regime LGBTIQ + asylum seekers are often exposed to epistemic violence as their queer behaviour and presentation is subject to heteronormative expectations, which ascribe a narrow and biased set of expressions. In the current refugee debate, some reasons for forced displacement and seeking asylum are socially and thus politically more accepted than others. This is exemplified by what Crawley and Skleparis (2017) call “category fetishisation” whereby “dominant categories fail to capture adequately the complex relationship between political, social and economic drivers of migration or their shifting significance for individuals over time and space.” Drivers of migration then are categorised as legitimate or illegitimate which belies the complexity of mixed

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migratory movements as well as ignores the gap between the lived realities and the policy conceptualisations. Based on this, some migrants are granted the right to asylum or subsidiary protections, while others are deemed as not meeting the requirements for (international) protection. Moreover, the general understanding of who is considered a legitimate migrant or refugee changes over time. Historically, the separation of refugees from migrants in the 1950s began by providing them with an exceptional right to cross borders and claim asylum in order to address the apparent protection gap at the time. Classifying migrants in this way leads not only to differing degrees of social acceptance or rejection in the host countries/countries of arrival, but also to the development of a hierarchy between these different groups of (forced) migrants. Some are granted rights that others are denied, thus mobilising violence/force against others. Violence should not be limited to just physical or structural violence, but should rather be defined as “(…) a dynamic phenomenon which can (and does) continuously change with respect to its form, intensity, geographical scope, type and number of actors involved. (Crawley and Skleparis, p. 2).” Such a broad understanding of violence also means that all actors who play a role at different social levels in the nexus of migration and violence must be taken into account. The spectrum therefore ranges from individuals to social groups and states to organisations. To operationalise this, Bank et al. distinguish between 1) migration as a movement out of violence, 2) migration as a process of violence itself, and 3) migration as a path into violence (ibid.: 3). Drawing on Spivak’s essay “Can the subaltern speak,” epistemic violence in the context of migration management regimes can be understood as mobilising a system of knowledge against the individual. The subject is symbolically silenced, unable to articulate a narrative other than the hegemonic one because the individual undergoing such violence cannot successfully define themselves or produce alternative positions due to a lack of cognitive instruments, information, and words (Safouane, 2018). Epistemic violence then is rooted in constraining contexts and maintaining these in imbalanced intersubjective relations. The underlying dual driving forces of othering and alienation of the subject from their own original identity through decontextualisation de-historicisation as enacted through categorisation and hierarchisation are compounded in the case of heteronormativity not by physical violence itself but wilful ignorance and lack of knowledge. Fundamentally, epistemic violence can be defined as the ongoing process of violence inflicted within intersubjective relations through speech, thought, or writing, rather than actual physical harm. Through processes of categorisation,

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personal histories are forgotten as they remain unheard. Migrants’ journeys are only understood according to the narratives (and subjectivity) produced within the migration management regime. It is reasonable to hypothesise that the selfrepresentation of specifically LGBTIQ + asylum seekers could similarly be muffled by case workers through the imbalanced power dynamic present in the hearings. The hearing is a site of instrumental communication that focuses on the transmission of accurate, logically sequenced, and preferably substantiated information. It is the expression of the meaning of the journey and has an impact beyond the end of the journey itself. The hearing can exacerbate different aspects of migrants and asylum seekers vulnerability including structurality and corporality (Göttsche in this volume). The emergence of such vulnerabilities raises the question how we locate this epistemic violence within the credibility assessment within the asylum process. Here again Göttsche’s conceptualisation of vulnerability beyond their negative impact alone as set out below can prove helpful in more fully exploring the impact of migrants’ individual vulnerabilities on their protection needs. The resulting hierarchisation puts some immigrants in a better position than others and can damage the successful integration of migrants into the societies of the receiving states (Göttsche in this volume). This can cause or exacerbate different aspects of their vulnerabilities, which are often generalised and not fully explored. Therefore, migrants should not be treated as a homogeneous group, instead individual migrants and groups should be supported based on their needs in order to protect the most vulnerable. Likewise, the vulnerability of migrants and refugees cannot be assumed by default and many different aspects can affect whether an individual is vulnerable or not. Rather vulnerability can be seen as neither a purely negative nor positive concept, instead it can be understood as possibility. (Göttsche in this volume) in the context of LGBTIQ + migration, persons with diverse SOGIESC while often assumed to be vulnerable in abstract, are not always afforded the protection and support they require to alleviate the violence and discrimination they face. Instead, the heteronormative expectations of what they should present or act as in order to substantiate their queer identities is itself an act of epistemic violence which compounds their vulnerabilities, after having fled.

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3

Fleeing into Violence

3.1

The Credibility Test in the Asylum Procedure

“At one point he stopped asking questions Instead he formulated a thesis by saying that he was surprised that I was homosexual, because I would not look gay at all". (Interview Y.: 8).

Credibility tests have long played an important, albeit controversial, role in determining refugee status. Particularly in recent years, which have been characterised by increased global (mixed) migratory movements and the resulting introduction of so-called “fast-track” processes for faster processing of asylum applications in many states, hearings before federal or state authorities are often the decisive instance (Millbank, 2009, p. 1). As a result of a 1988 landmark ruling by the Federal Administrative Court, which recognised persecution due to homosexuality as a reason for seeking asylum, persons with diverse SOGIESC are entitled to asylum. However, this has been often gone underexplored within academic discourse (Hübner, 2016, p. 242). The hearing is one of many obstacles to being recognised as refugees or even as entitled to subsidiary protection in Germany. Also, this epistemic form of violence can severely impair the LGBTIQ + asylum seekers ability to express their sexual orientation, gender identity or sexual characteristics (see Interview Y). This criticism is particularly true against the background that the determination of refugee status is hard to verify. The outcome of the hearing, (the granting or refusal of asylum) depends in most cases mainly—if not entirely—on the story narrated by the applicant, for which there is usually no written documentation of the endured homophobic, biphobic, or transphobic persecution. Alarmingly alongside the increase in claims by LGBTIQ + asylum seekers, the issues of credibility and stereotyping have seemingly grown as well. They are invited to present their selves in ways that should be easily understandable to their adjudicators in order to increase the likelihood of the success of their claims (Gartner, 2016). This story is questioned by the adjudicator and finally weighed against the assessment of future dangers for the applicant in case of return to the country of origin (Millbank, 2009, p. 1). Also, crucially previous determination which claimed that hiding or concealing one’s SOGIESC in the country of origin was sufficient to avoid the dangers of persecution is no longer deemed acceptable (Küppers & Hens, 2019, p. 7).

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In Germany, the hearing is conducted by adjudicators (Entscheider) of the BAMF as part of the credibility assessment. For asylum seekers in Germany, it is the most important step in the refugee status determination (Hübner, 2016, p. 243). According to paragraph 25 of the Asylum Act, the hearing usually offers asylum seekers the only opportunity to present their reasons for seeking asylum.9 An individual’s account is considered credible if it is told conclusively, appears comprehensible to the decision-maker, and contains concrete details. In contrast, lack of detail, contradictions and possible inconsistencies may lead to a negative decision, which could then be appealed by the applicant (Hübner, 2016, p. 246). The Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status, published by the United Nations High Commissioner for Refugees (UNHCR), refers to the 1951 Geneva Refugee Convention and states: “After the applicant has made a genuine effort to substantiate their story there may still be a lack of evidence for some of his statements. (…) It is hardly possible for a refugee to “prove”10 every part of his case and, indeed, if these were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt” (UNHCR, 2011, p. 39).

However, as practice shows, the profile of the applicant in terms of selfconfidence, educational background, ability to tell their story chronologically and, last but not least, their preparedness for the hearing plays an important role in allowing them to have the “benefit of the doubt” (Hübner, 2016 p. 246). This seems to be proven by the example of the Syrian interviewee referred to previously, who considers his good English skills to be his “(…) biggest advantage (…)” (Interview Y.). In addition, his family background in the Syrian upper class enabled him to receive a comparatively good education, partly also in English-speaking countries (ibid.). As a result, he was able to discuss his reason for fleeing during

9

Key difficulties in applying standards proof to credibility include the limited range of verifiable evidence; the “distance” between applicant and decision-maker; the assessment of future risk and the grave consequences of the decision itself (CREDO P13). 10 According to the Hungarian Helsinki Committee’ under EU no clear standard of proof or level of conviction for establishing a well-founded fear of persecution is set out. Tellingly Article 4 of the Qualification Directive repeatedly use the term “substantiate” instead of “prove”. This implicitly indicates the need for a lower required level of conviction in asylum procedures (threshold to establish the well-founded fear of persecution and real risk of serious harm), as compared to, for example, criminal matters.

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the hearing without an interpreter.11 Whether the applicant received legal or asylum counselling before the hearing in order to be better prepared should also not be disregarded at this point, especially since in a study only 20 of the 51 respondents stated that they received this assistance (Held, 2018, p. 7). It should also be noted that the atmosphere that prevails between the applicant and the adjudicator during the hearing is not insignificant: it also includes whether the adjudicator can approach a hearing without personal reservations and in a neutral manner each time (Hübner, 2016, p. 246). For LGBTIQ + migrants in particular, this procedure itself can represent a major obstacle. As already described, the sexual orientation or gender identity of an asylum applicant is recognised as a characteristic worthy of protection both by the Geneva Convention on Refugees and by national law (in paragraph 3 of the German Asylum Act, the international legal definition of the term refugee in the Geneva Convention on Refugees was taken over literally). However, only very few of the LGBTIQ + migrants are able to present clear “evidence” of their SOGIESC in the form of documents or the like that confirm that they belong to this very social group (LaViolette, 2004a, p. 12). It is precisely for this reason that the credibility that the applicant can achieve in the hearing is central in the determination of refugee status. “An important part of claims for international protection are rejected based on the justification that the determining authority or court does not believe what the applicant says.“ (CREDO Manual, p. 8) Increasingly the legal challenges and difficulties LGBTIQ + asylum seekers face in different European countries has received more attention and resulted in judgements intended to reaffirm their rights however their vulnerabilities persist. However, as indicated by the interview as well as in the reports of LGBTIQ + migrants seem to confirm (see, among others: Held, 2018; Titze, 2012; Deutschlandfunk, 2018; Süddeutsche Zeitung, 2017), it is often ignored that many LGBTIQ + refugees can be severely traumatised by their experiences while seeking international protection, through the persecution, discrimination or even physical violence they can experience before, during and after their forced flight. Since they have had to conceal their diverse SOGIESC to avoid persecution in their countries of origin, the persons concerned are often unable to speak openly (and in as much detail as possible) about their sexuality or gender immediately after their arrival in the destination country with an official who is unfamiliar to them (Shidlo and Ahola, 2011, p. 9). In this respect, it is questionable whether 11

Interpreters themselves can however also be vulnerant as their persona, religious and cultural beliefs can adversely affect how the asylum seeker’s case is represented in the hearing, not least because they are often from the same communities and therefore can hold the very homophobic prejudices from which the LGBTIQ + person fled in the first place.

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an applicant can satisfy the requirement for a detailed, chronological and—to the BAMF official—comprehensible personal account. The central question that arises is how impartial adjudicators of a German federal authority can be, whose judgement is based at best on theoretical knowledge of the risk situation for the social group of LGBTIQ + from different countries. In addition, it can be assumed that, based on demographic statistics, only a fraction of the decision-makers at the BAMF itself are themselves members of the LGBTIQ + community and thus may have difficulty understanding the situation of LGBTIQ + migrants. The gay Syrian interviewee declared that the hearing did not resemble a narrative description of the reason for his seeking protection. Instead, he reported that “(…) the situation really reminded of an interrogation. But I did not see any other option but to play the game” (Interview Y.). Although the European Court of Justice (ECJ) ruled in 2014 that “(…) the competent national authorities (…) may not, in the context of their examination of the events and circumstances surrounding the alleged sexual orientation or gender identity of an asylum seeker (…) make an assessment on the basis of interviews based solely on stereotypical perceptions of homosexuals” and “(…) the competent national authorities may not, in the context of that examination, conduct detailed interviews on the sexual practices of an asylum seeker” (ECJ judgement C-148/13-C150/13),

Migrants with diverse SOGIESC sometimes report about “quite intimate questions” regarding their sexuality or sexual behaviour (Interview Y; see also Amnesty International, 2007) and that the adjudicators use stereotypical descriptions of gender identities or sexual orientations (Held, 2018, p. 8; Millbank, 2009, p. 19; also, Deutschlandfunk, 2018; Interview Y.) This further casts a negative light on the credibility assessment against the background of the ECJ ruling mentioned above. It is however notable that only very few LGBTIQ + asylum seekers found the questions and comments of the decision-makers to be truly homophobic12 (Held, 2018, p. 11). Instead, it seems that a lack of tact and empathy on the part of the decision-makers can be more accurately remarked:

12

Most of the descriptions of homophobic experiences during the hearing involve statements or threats made by interpreters cannot be included in the spectrum of investigation due to the limited scope of this paper. This phenomenon has been academically addressed by Held, 2018; Noll, 2005, among others.

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“I would not say that I felt comfortable (…) The questions on my sexual orientation were a little weird but not really cruel. (Instead) I asked myself, if this guy (decisionmaker) even had the slightest idea about gay life (…). I would not claim that he was homophobic. Just poor in empathy and expertise.” (Interview Y.).

It seems more realistic to assume a much subtler and therefore “invisible” form of stigmatisation is present. In most cases, decision-makers probably do not act out of intentional homophobic prejudices and biases. Rather, based on the above examples, it seems more appropriate to assume lack of familiarity or first-hand knowledge on the part of the decision-makers, which results in ignorant clichés about the LGBTIQ + community and is thus filled with subjective expectations about persons with diverse SOGIESC. As Herlihy et al. (2010, p. 364) argue, decisions are inevitably based on assumptions about content and quality of the information presented. These assumptions draw on subjective understandings of human interaction and behaviour (Held, 2019, p. 69). As set out in the previous chapter (2.1), society categorises individuals gender based on biological differences, and conceives of gender identities heteronormatively, and sexual orientation is assumed to be to the other sex. Other sexual orientations or gender identities deviating from this norm are not considered socially permissible. Thus, sexual orientations and identities beyond this heterosexual norm (i.e., persons with diverse SOGIESC or the LGBTIQ + community) do not exist in the social discourse on gender (Dölling, 2003) or are not considered in it. Due to the lack of documented “evidence” about the diverse SOGIESC of the asylum seeker, the BAMF staff (presumably) unconsciously uses the described body of knowledge about the “right” relationship, one that is cisgender13 and heterosexual. The decision-makers acquire their heteronormative knowledge about gender and sexuality not only through normative gender role expectations in society (collective gender knowledge), but also through their individual lived experiences.14 In order to evaluate the life stories presented to them and come to a determination on refugee status, the decision-makers must draw on their own knowledge and lived experience. In the assessment of whether a person who has stated their sexual orientation or identity as a reason for seeking asylum “actually” belongs 13

Cisgender is a person who identifies with the gender assigned to them at birth. Due to the methodological approach used, it is not possible to distinguish which of the three understandings of gender (Dölling, 2003, p. 115–120) the decision-makers are using. In order to arrive at a representative result on this, a large number of interviews/surveys would have to be conducted with the officials responsible for the credibility test, but this was not possible within the framework of this paper.

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to this social group, the result is based decisively on the “knowledge” of the decision-makers, which is characterised by the “appropriation and incorporation of this (binary) mode (of understanding) (masculine/feminine) (…) and the location of the different actors within it” (Dölling, 2003, p. 114). Conversely, this means that the expectations about all “non-heterosexual” orientations or identities are also based on collective and individual understandings of gender pertaining to how LGBTIQ + persons supposedly behave and dress, how they speak and express themselves. This knowledge about LGBTIQ + is overly simplistic and draws a monolithic picture, which is reflected in stereotypical expectations (Interview Y., LaViolette, 2004a, p. 4). As LaViolette recognises then: “There is no uniform way in which lesbians and gay men recognise and act on their sexual orientation” (LaViolette, 2004b, p. 996). Decision-makers at the BAMF, who are inevitably shaped by the heterosexual image of society and have internalised its norms (Dölling, 2003, p. 114), seem to find it difficult to understand the motives of LGBTIQ + migrants to flee and to approach people outside the heteronormative norm without prejudice. Influenced by expectations (clichés) about how the correct (sexual) relationship between individuals in society should be and how LGBTIQ + persons behave, decisionmakers are seemingly impacted by an unconscious inability to develop empathy. The interviewee for this study stated that “for him (decision-maker), that was his impression, it was not clear how precarious the situation for gay men—and LGBT in general—is in Syria! He asked these questions like a tourist would ask for the way” (Interview Y.). This assessment coincides with Hübner’s assessment that the detailed and insensitive questioning of migrants appears unproblematic to the authorities themselves (Hübner, 2016, p. 248). However, and this must be emphasised at this point, heteronormative thinking, as described by Dölling (2003), is an explanation, but not a justification. It is important not to overlook the impact of the described practice of credibility assessment of LGBTIQ + applicants. Notwithstanding the fact that asylum seekers with diverse SOGIESC express that they do not consider BAMF staff to be homophobic during the hearing, the credibility test must be viewed critically in terms of its discriminatory potential in general, but specifically against these migrants. The socially constructed “abstract group” (Simmel, 1908, p. 335) of LGBTIQ + is constantly kept alive by the hearing’s procedure due to heteronormative thinking of the BAMF decision-makers. They ascribe it a collective identity (“off the norm”), which negatively distinguishes it from the (heterosexual) majority in society. Thus, a structural hierarchy is created in addition to the personal differences between the applicant and the BAMF decision-maker, who

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decides on the fate of the applicant refugee through the determination of refugee status. For members of the LGBTIQ + social group, this constructs a problematic characteristic that separates them from the “heterosexual normal case”. This links to Göttsche’s structurality (2020, p. 13) aspect of vulnerability wherein institutions, such as the BAMF, which can have a high impact on an individual’s vulnerability, in this case LGBTIQ + asylum seekers. Such epistemic violence causes vulnerant factors which include special hierarchisation within the institution as well as existing subcultures, history, and traditions. This extends to vulnerabilities caused by civil servants of an institution, for instance in the form of discrimination against particular social groups. (Göttsche in this volume). At the same time, the practice of assessing credibility fundamentally assumes that LGBTIQ + applicants, like others, are potentially illegal15 migrants, since, contrary to the heteronormative expectations of the decision-maker, they do not necessarily correspond to the image of a LGBTIQ + person who is understandably threatened by persecution in their home country. This means that LGBTIQ + migrants have the burden of proof of their sexual orientation and/or gender identity, which can pose a major hurdle for many. However, since they often lack documented evidence regarding the discrimination, persecution, or violence they have faced in addition to proof of the veracity of their very own key elements of their identity. Although the ruling of the European Court of Justice prohibits BAMF decisionmakers from asking questions and making stereotypical statements about sexuality and sexual orientation (see ECJ ruling C-148/13-C150/13), the hearing procedure forces LGBTIQ + migrants to give a detailed account of their most intimate private sphere, thus curtailing their rights.

3.2

Locating Violence in the LGBTIQ + Asylum Process

Using the conception of violence as defined by Bank et al., the credibility test for LGBTIQ + migrants can be located in the migration-violence nexus under the category of “Migration into Violence” (Bank et al., 2016, p. 2). The example of LGBTIQ + refugees seeking protection shows that violence should not be understood exclusively as only a cause of displacement in the country of origin, but has various facets, and needs to be understood as “(…) a dynamic phenomenon which

15

Regarding the distinctions between supposedly legal and illegal migrants, see Dauvergne, 2008.

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can (and does) continuously change with respect to its form, intensity, geographical reach, type and number of actors involved” (ibid.), Bank et al. rightly identify that the effects of violence can be cross-cutting, and that migrants and refugees do not only experience violence in their countries of origin but also once they are on the move. In this respect, epistemic violence belongs to the migration-violence nexus. Often LGBTIQ + persons on the move face discrimination not just from the host communities but also from member of their own community which renders them at risk of double discrimination and further marginalise them—rendering them “invisible persons of concern”. Therefore, the debate about violence during the process of seeking asylum and fleeing violence and persecution must not only cover the meso- or macro-level, but must also take into account the phenomena that are often not obvious and are expressed in a comparatively invisible way in interactions at the micro level. While individual violence in collective accommodation or structural violence in the form of systematic discrimination or exclusion is relatively well known and measurable, the potential issues surrounding the credibility test, especially for vulnerable migrants, in asylum procedures often go unexamined due to their invisibility to many researchers and practitioners. The interaction between two individuals (applicant and decision-maker) during the credibility test takes place literally behind closed doors and with no guarantee of a neutral party present so that the salience of this issue is less visible. In order to understand violence during the search for protection, a closer look at the micro level is required. It turns out that a process such as refugee status determination, which is supposed to enable an asylum seeker to obtain protection, could become epistemically violent and violating because it is constructed around categories and hierarchies that may not match, or even oppose, the subjectivity of applicants. The initial findings of the analysis carried out here suggest that probably only a negligible minority of the BAMF staff who are entrusted with the decision on asylum applications act in an intentionally homophobic manner. Rather, the credibility assessment can represent a subliminal act of violence for a vulnerable group of migrants, which is not necessarily apparent to the (heterosexual) majority. While the heteronormative practice of credibility testing, as set out in this paper, implies a form of violence for the group of LGBTIQ + migrants, under certain circumstances there may be other obstacles to violence for other minorities within the group of refugees, which is wrongly conceived of as homogeneous, which must be investigated in more depth and challenged intersectionally. Consequently, this paper’s example shows that the question of the actors involved in the asylum process requires a more comprehensive understanding particularly of the intersections of different causes of vulnerability at every level.

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Migrants are categorised along with their vulnerabilities which are hierarchised in the asylum process from non-deserving to deserving enough (Göttsche in this volume). This epistemic form of violence present in migrant management can also be observed in the actions of actors at the micro level, which have not been sufficiently explored: the exercise of violence against refugees in the migration process to an extent overlooks that epistemic violence can also be caused by persons (groups) at the micro level who are not always very visible. The credibility test conducted by the BAMF, therefore, seems relatively irrelevant, and yet the insights gained in this piece of research- especially through the interview—show that here, too, there is a gap in research that needs to be closed.

4

Conclusion "Germany is a gay heaven. But there is a long, stony path to get there." (Interview Y.)

(The Risk of) Violence during the journeys does not stop at the moment a migrant crosses a border. This is confirmed by a closer look at the practice of credibility testing in Germany. Here too, as the key aspects addressed in this paper show, migrants may find themselves exposed to epistemic violence. The asylum procedure uses a credibility test which is shaped by heteronormativity. This means that LGBTIQ + asylum seekers, who do not conform to the heteronormative gender roles expected by the decision-makers, are often regarded as untrustworthy and placed at a disadvantage. This can in turn lead to their case for protection being less favourably assessed. In an effort to adopt measures to enable migrants to receive a fair asylum procedure, the challenge for academia, but above all for policy makers, lies in questioning the scope and flexibility of the concept of violence. Intersectionality underpins the various forms of violence and (double) discrimination LGBTIQ + persons can face when seeking protection. It is not a question of “whether” but rather of “how” migrants are exposed to violence even after they have arrived in Germany. The example of LGBTIQ + migrants illustrates that epistemic violence during the asylum process is not always easy to identify and can occur where one would not intuitively expect it. Especially the subtler forms of violence are harder to fully comprehend due to the fact that some actors are not aware of the consequences of their actions or statements. Therefore, it would probably be

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presumptuous and wrong to accuse the decision-makers of the BAMF of structural homophobia.16 But it is precisely here at the juncture of vulnerantality and vulnerability of LGBTIQ + persons that highly relevant starting points for further research can be found. In order to further explore up the extremely complex and intersectional challenges faced by LGBTIQ + migrants seeking protection, there is a fundamental need for comprehensive data collection, which, through qualitative depth, can gather their experiences during the asylum process. A large research gap remains to be filled here, as this field is particularly non-transparent, and the picture remains incomplete. This is intensified by the shame, fear, and distrust of the refugees towards strangers to talk about their partly traumatic experiences. A more precise analysis of the gendered assumptions of the BAMF actors who are responsible for deciding on asylum claims is also of academic interest. The insights gathered so far suggest above all collectively acquired knowledge, but further research—for example, through a larger sample of persons with diverse SOGIESC as well as qualitative interviews with staff members—would be interesting to gain insights into the individual gender knowledge of the actors. More interviews would enhance this explanatory power of the initial insights gained through this pilot interview and allow for the inclusion of a more diverse range of voices and experiences. Heteronormative violence against LGBTIQ + migrants contributes to their precarious legal status and needs to be addressed. However, it is reasonable to assume that other minorities are exposed to some form of (epistemic) violence during the asylum process. Here, too, a closer look seems worthwhile because, as the pilot study has indicated, violence is multifaceted and, in many cases, not immediately apparent. Finally, there is a need to move beyond binary understandings of gender, as set out by Dölling, in understanding and supporting LGBTIQ + migrants and refugees in order to unpack such categories, which unduly impact vulnerable migrants seeking protection. Indeed, vulnerability can be seen as other side of empowerment, resilience, recognition and agency (Göttsche in this volume) which is particularly relevant to LGBTIQ + persons. Therefore, it is imperative to avoid essentialising persons to only their vulnerable traits “weakest of the weak” (Göttsche in this volume). LGBTIQ + migrants are not empty canvases and projecting one’s own subjectivity onto their lived experiences must be avoided in order to truly understand the challenges they face.

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As well as bi- or transphobia.

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Part IV Persisting Vulnerabilities in Reception Societies: Cases from Germany

Vulnerabilisation of Refugees: Covid-19—Related Experiences from Accommodation Centres in Germany Verena Penning,Yudit Namer and Oliver Razum 1

Introduction

In the course of the Covid-19 pandemic, refugee accommodation in Germany received considerable media attention. Many collective accommodation centres were affected by disease outbreaks since conditions of overcrowding and shared use of sanitary facilities did not allow physical distancing and the maintenance of hygienic practices. Several centres were put under quarantine, sometimes enforced by site fences or police patrols, keeping all residents locked up, no matter whether they were actually infected or not (Bozorgmehr et al., 2020). Especially in mass accommodation with capacities for several hundred people, privacy We thank the International Women* Space, the feminist, anti-racist refugee and migrant organisation based in Germany for their permission to use the Corona Lager Reports, initiated by the organisation’s “Break Isolation Group”. We are indebted to the women in accommodation centres who choose to speak up about their experiences and whose power emanate from their voices. Verena Penning is funded by the German Research Foundation (DFG FOR 2928) V. Penning (B) · Y. Namer · O. Razum Fakultät für Gesundheitswissenschaften, AG Epidemiologie & International Public Health, Universität Bielefeld, Bielefeld, Germany E-Mail: [email protected] Y. Namer E-Mail: [email protected] O. Razum E-Mail: [email protected] © The Author(s), under exclusive license to Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2021 N. Fromm et al. (eds.), Power in Vulnerability, Studien zur Migrations- und Integrationspolitik, https://doi.org/10.1007/978-3-658-34052-0_8

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is reduced, retreat is lacking, inhabitants lack occupation and thus are intensely dispirited. Limited space, furthermore, can provoke (intra-family) conflicts and violence. Life in mass accommodation can thus have negative consequences for health and well-being of the residents, in particular for children and adolescents (Baron et al., 2020). Legal regulations restricted freedom of movement, leaving especially newly arrived asylum seekers with no choice other than to live in the prescribed accommodation for a set period of time (see §47 Asylum Law). Given the conditions of mass accommodation, as well as the additional challenges in times of Covid-19, refugees are often considered as a particularly vulnerable population (Kluge et al., 2020; Nott, 2020). But what does being vulnerable mean in the context of refugee accommodation? What deems one vulnerable? And can we label refugees as vulnerable when structural forces make them vulnerable, or, in other words, contribute to their vulnerabilisation? Vulnerability is a term that is widely used and has been theorised differently in various fields of research, such as in feminist, queer and critical race studies (Koivunen et al., 2018). Basically, derived from the Latin word “vulnus” (meaning wound, injury), vulnerability can be understood as the capacity for suffering or for being wounded. This book’s theoretical approach (see Chap. 1 of this volume) considers vulnerability from a neutral perspective and approaches it as a possibility, not normatively negative (Göttsche in this volume). Strictly speaking all human beings are capable of being physically, socially, or mentally wounded—or vulnerable. This is due to their being embodied social agents, who are dependent on others in the early years of life, and are precarious (Turner, 2006). However, some groups are more exposed to vulnerabilising circumstances than others, or to ‘vulnerantalities’ (Burghardt et al., 2017) whether in regard to discrimination and inequalities, exploitation and violence, or environmental hazards (Koivunen et al., 2018). In this chapter, we elaborate on these vulnerant or vulnerabilising circumstances and structures in the context of collective accommodation centres that may leave residents fragile and cause vulnerability by drawing on the different dimensions of vulnerability outlined by Göttsche in the introductory chapter of this book: sociality, corporality, culturality, liminality and structurality. In doing so, we argue that certain aspects of collective accommodation centres contribute to forms of epistemic violence, e.g., by systematically misrepresenting refugees or by neglecting their voices. We also elaborate on our role as authors when writing about this topic from a background with no personal experiences of living in refugee accommodation. Would we not just contribute to epistemic violence by speaking for them and about them, implying that they cannot speak for themselves? In order to reduce the risk of objectifying refugees, we include the voices

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of women from different collective accommodation centres in Germany in this chapter by drawing on reports initiated by the Break Isolation Group of the International Women* Space Berlin about refugee women’s situation during the Covid-19 pandemic. We end up underlining that vulnerability in the context of refugee accommodation not exclusively comprises injury, hurt and non-agency, but also uncovers coping strategies and means to become more resourceful. We conclude with the call to recognise the political significance of survival.

2

Vulnerabilities and Vulnerabilisation of Refugees

In the 1990s, Bohleber (1995) psychoanalytically contextualised xenophobic attacks towards refugees and asylum seekers in Germany in a manner which sadly rings true, again, in 2020. He argued that the roots of xenophobia towards refugees stem from meeting the “uncanny familiar” stranger, who has left their home, crossed national, geographical, social and cultural boundaries, who has to exist in chaos rather than order. Such meeting with the uncanny destabilises the equilibrium and imperils one’s carefully defended inner boundaries. Bohleber argued that mechanisms of depersonalisation allow turning refugees (who by definition are in search for legal protection) into abstractions of threat against what he calls a “fortress of prosperity” (p. 333). In other words, refugees and asylum seekers, in their perceived uncanniness, are discerned to be socially, corporally, culturally, liminally and structurally vulnerant, reminding the hosts of their own vulnerability. This experience of destabilisation is then externalised and projected onto the perceived boundary crosser, who is found to be responsible for the destabilisation, then excluded and penalised for their boundary crossing. Bohleber argues that trying to control the uncanny familiar stranger allows to maintain inner integrity at the cost of the ‘other’. Indeed, “Fortress Europe” is used in current European discourse in the debate surrounding European border control against ‘irregular’ immigration. With the establishment of a “European Border and Coast Guard Agency” surveyed by drones and sensors (by the European Border Surveillance System, EUROSUR) (Schmitz, 2013), the emerging picture is described to be “a citadel against immigration” (Malik, 2018, para. 28) and leaves the impression that Europe was protecting itself from “invaders” or “enemies” (Popp, 2014). When juxtaposed against the image of flimsy vessels in the open sea, struggling to reach the coast, this is also a picture of intense European anxiety and fear. Bohleber further invokes the mechanism of (one-sided) sibling rivalry to be at play. He reflects on the dominant prejudicial discourses towards refugees and

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asylum seekers of 1990’s Germany (e.g., housing allegedly taken from Germans to be given to refugees, refugees benefiting from welfare despite not working) to resemble that of siblings’ complaints to parental authority. He describes the hostility towards refugees as sounding very much like the infantile fantasy of not wanting the rival sibling ‘other’ to infiltrate what is perceived to be primarily theirs. This dynamic, he believes, exists in the complicated sibling dynamics between East and West Germany generated by the re-unification. Foreigners, nonGermans, then, become the container of unresolved hostilities which emerged out of and not fully addressed during the re-unification. One of the consequences of denial, in the psychoanalytic tradition, is enactment. Enactments occur, according to Bromberg (1991) as “[d]issociated experience[s] remain unsymbolised by thought and language, exist[ing] in a separate reality outside of self-expression” (p. 405). As Plakun (1998) indicates, when enactments are not recognised, the parties involved can be abusive, specifically when what is enacted is traumatic or violent in nature. It is within this context that we discuss the vulnerabilisation of refugees. When we consider the refugee migration to Europe from the Middle East and North Africa, the majority of which involved walking long distances or crossing open water in dinghy boats, we are faced with tremendous strength, resilience, independence, mobility, and power. We also see people able to survive despite being outside of the culturally, liminally, structurally, socially, and corporally familiar. That is, we see people able to have power in all dimensions of vulnerability, despite being, as Audre Lorde (1978) describes, “never meant to survive”. This is a phenomenon observed epidemiologically: the Vietnamese refugee population, who arrived in Britain after fleeing the aftermath of the Vietnam War in dinghy boats, had lower overall mortality than the non-refugee populations in England and Wales (Swerdlow, 1991). We argue that structural vulnerabilisation in the form of mass accommodation, limited entitlements, and lack of access to healthcare and job market (among others) is meant, albeit unconsciously, to diminish that mobile power, to keep refugees in (their) place, to deem them dependent and at a state of emergency, thus less of a threat to inner boundaries, integrity, and equilibrium. The systemic inequalities are bound to deem refugees as the weaker rival sibling, less likely to be in a position to compete for resources for a prosperous life. Vulnerabilisation could further be existentially understood as disturbing one’s emplacement, which is associated with one’s being in time and space. According to Turner (2006), the Heideggerian term emplacement (“Gestell” as interpreted by Weber) signifies the contingency of life and that it is necessary to sustain a “sense of identity, security, and continuity” (p. 27). Turner posits that targeting one’s

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sense of emplacement, such as through imprisonment, exclusion, or immobilisation, attacks one’s sense of constancy, security and identity and thus is a human rights violation. Turner further reflects on the reality that their social environments need to be constructed by human beings themselves, and this construction involves that of social institutions, which are “the bridges between humans and their physical environment” (p. 26). When the institutions are precarious due to the instabilities of modernity, he posits, this increases human vulnerability. Conversely, when powers are given to institutions to decrease precariousness and assuage certain groups’ vulnerability, those institutions become threats to those outside of the group. Turner thus defines what he calls “institutional precariousness”: “The Hobbesian paradox is that we need a strong state to protect us, but state power is often the cause of human rights failures” (p. 33). The role of institutions is crucial in Sara Ahmed (2018), who considers vulnerability in relation to violence and survival from it. In her account, the accumulation of violent experiences leads to dwelling in one’s body differently. In her understanding, the structures outside and within the context one lives in direct this violence towards some bodies more than towards others (Ahmed, 2018). The world is institutionally organised to sustain the survival of some groups but not others, through rights, entitlements, privileges, and hierarchies (Ahmed, 2014). In line with Hannah Arendt’s critique of human rights, as refugees are rendered stateless, their right to be political beings, or in other words, members of a polity, is removed. The loss of belonging, the “tremendous equalizing of differences which comes from being citizens” turns into the loss of their “right to have rights” (Arendt, 1979, p. 302). In Arendt’s words, at the point of this loss, refugees become “abstract”, “mere existence” (p. 301). Thus, for some members of a polity, social, corporal, cultural, liminal, and structural survival is effortless, unreflected upon, automatically supported. The ‘others’ are vulnerable because rights, entitlements, privileges are distributed inequitably (Ahmed, 2014) but stateless ‘others’ exist in a state of exception where the right of political participation to demand equality and to fight against mechanisms of vulnerabilisation is not a given. As wounding experiences accumulate, the wounded person inherently knows what is done to them is wrong. Ahmed (2014) calls this “knowledge of directedness”, an embodied knowledge that the violence is directed to you and not others. Depending on how these structural processes impact one’s affect, how these structures get under the skin, they hurt and make one fragile (Ahmed, 2018). When coupled with fear, this may lead to shrinkage, inhabiting a smaller space in the world, again in some people, but not others (Ahmed, 2004). Often, it is the privileged’s fear which leads the non-privileged to shrink. In Ahmed’s (2004) words,

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“fear works to restrict some bodies through the movement or expansion of others” (p. 69). As the next section shows, refugees in mass accommodation know that it is them who are being imprisoned and not others, and they know that they are being treated this way because they are refugees. This knowledge of directedness, we argue, exacerbates the structural vulnerabilisation of refugees.

3

Vulnerabilities in the Context of Refugee Accommodation

In his book No Friend but the Mountains, Behrouz Boochani (2018), a journalist, writer and political scientist who fled from Iran, reports about his time being detained in the “Manus Island Regional Processing Centre” (MIRPC), an offshore Australian detention camp on Manus Island, Papua New Guinea. The camp was officially closed down by the Australian Government at the end of 2017. Boochani’s vivid description of the life inside the camp illustrates in many ways how systemic structures can deem people vulnerable: the permanent control mechanisms that reduce any kind of privacy; the ill-fitting uniforms and the use of numbers instead of names that not only humiliate the camp inmates but also diminish their individuality; the daily boredom and lack of occupation that turned the inmates into “bats in a dark cave that react to the slightest vibrations” (Boochani, 2018, p. 125); the heat and poor hygienic conditions to which the inmates are exposed. At first glance, it may not be entirely clear what adverse conditions such as boredom and heat have to do with systemic structures, but if these structures that put the inmates in that particular position were not in place, they would not be exposed to this boredom, to this heat in the camp. Boochani also describes forms of resistance to which they had resorted; strategies to survive and cope with this challenging situation, such as daily dance sessions which create moments of joy and happiness and enable them to escape momentarily from the actual time and place. He thus also illustrates how resourceful the camp inmates actually are. They do retain some form of agency even though they find themselves in these vulnerant conditions. The situation in German collective accommodation centres for refugees and asylum seekers is comparatively less extreme than in Australian detention centres, European hotspot camps, or other “small territories of exception” (Fassin, 2005, p. 379). But still, structures are in place that systematically put residents in a position of disadvantage, in which they can be made vulnerable. We consider the systemic structures that lead to the living conditions in the accommodation

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centres as driving factors that can generate vulnerabilities. The following section provides four examples for this: First, asylum seekers have limited freedom of choice regarding their residence. Upon arrival in Germany, they are legally obliged to live in state-mandated reception centres. This residence obligation officially applies until the asylum claim has been processed but for a maximum of 18 months. The federal states, however, have the choice to extend this period to 24 months.1 After this period, refugees and asylum seekers are distributed to decentralised or collective accommodation at the municipal level. Yet according to §53 Asylum Act, collective accommodation should be considered as the rule. In some cases, certain building sections on the premises of the reception centres are simply tendered as collective accommodation, which in fact does not bring any change in the living situation of the residents (Baron et al., 2020). Thus, asylum seekers have, at least in the first 18 months following their arrival in Germany, hardly any influence on their living situation since they are dispatched to a certain type of accommodation with predetermined structures and conditions (e.g., in terms of size, capacity or location of the accommodation centre). Second, physical structures of collective accommodation centres can reduce privacy and generate conditions for violence and conflicts (Christ et al., 2017). The collective accommodation centres vary in form and size throughout Germany but the larger accommodation centres (i.e., state-mandated reception centres) generally provide capacities for several hundred residents (MKFFI, 2020). Residents share bedrooms and sanitary facilities. Besides the already existing uncertainties resulting from the refugee status determination (RSD) process, the congestion and limited personal space can lead to discomfort and lack of privacy which in turn can cause additional stress and lay the foundations for conflicts. Further, the physical structures form the prerequisites for gender-based violence in the centres. Sanitary facilities are rarely directly attached to the bedrooms. In most cases, they are located on the corridors or even in separate containers outside the building. This general spatial layout can trigger fear of threats and assaults, especially among women and children and during nights (Baron et al., 2020; Christ et al., 2017). In addition, bedroom doors are not always lockable and some facilities are lacking safe spaces for women, for instance to change clothes or breastfeed without the presence of men (Baron et al., 2020; Bräu et al., 2016). 1

According to §47(1b) Asylum Act, federal states can stipulate that the compulsory residence in reception centres applies until refugee status determination or, in case of refusal, until deportation, but for a maximum period of 24 months. This extended residence obligation does not apply for families with minors (and their adult siblings), in which case there is a residence obligation of six months.

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Third, life in some collective accommodation centres is—similar to Boochani’s reports—characterised by uncertainty, boredom, and lack of individuality and selfdetermination as shown by qualitative research (Bräu et al., 2016; Christ et al., 2017). During RSD, asylum seekers are legally allowed to take up occupation only in exceptional cases.2 Further, they mostly receive in-kind benefits in the form of basic provisions such as food or clothing instead of financial allowances. Since residents are alienated from their own daily lives, a woman from an accommodation centre in Berlin perceived this as being in a state of “only eating and sleeping” (Bräu et al., 2016, p. 42), without being able to have an influence on one’s own living situation and left in uncertainty about the future. Along with prescribed schedules and regulations structuring the day, such as washing and eating or leaving the facility, the accommodation centre becomes an institution that regulates the most central aspects of life (ibid.). This is reminiscent of total institutions, a term coined by Erving Goffman (1973): In total institutions, the main aspects of life of a whole group of people are organised under the social order of one authority for the purpose of establishing and maintaining social control (Goffman, 1973). This “centralised” character becomes particularly visible in the “AnkER”- centres (arrival, decision and municipal distribution or return—centres). These are special types of reception centres, which concentrate all relevant actors for the reception, distribution across the territory and (where relevant) the deportation of asylum seekers in one site (Mouzourakis et al., 2019). Though no curfews are in place and residents can freely exit and enter the centres, different regulations are put in place to control presence and movement, such as security staff who record exits and entries, or catering staff who record people receiving meals. AnkER-centres grant the right to education for children and adolescents residing in Germany for more than three months. However, general policies claim that education should be provided inside the AnkER-centres and not in local schools (ibid.). So, the centre literally presents a world of its own, which brings us to our fourth point: exclusion and limited opportunities for social integration. Fourth, the location and the outer appearance of collective accommodation centres can exclude residents physically and socially from the outside world, which may impede their integration. In remote facilities located in rural areas, 2

According to §61 Asylum Act, asylum seekers are not allowed to take up employment during the period of compulsory residence in reception centres. If the asylum application is still under review after nine months of stay in reception centres, asylum seekers are allowed to work. Permission may also be granted to asylum seekers who do not come from a safe third country and who legally live in Germany (outside the reception centres) for three months (provided that their asylum application is still under review).

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access to local infrastructure is limited, and it is difficult to establish social networks outside the facility (Baron et al., 2020). Reports from AnkER-centres show that these centres are often surrounded by fences which visibly underline the spatial segregation from the local community (Hess et al., 2018; Mouzourakis et al., 2019). From a local community perspective, the residents could be seen as an essentialised and anonymous group rather than as neighbours or a family next door. This can lead to negative stereotyping and forming prejudices, which can impede social integration (Hess et al., 2018), laying the ground for political mechanisms of depersonalisation, dehumanisation, and xenophobic discrimination; mechanisms that turn refugees and asylum seekers to the “uncanny familiar” who are perceived as vectors of vulnerability. In short, residents of collective accommodation centres can face physical and social living conditions that are disempowering, alienating and oppressive. Asylum seekers are especially tied to certain types of accommodation by legal frameworks and thus, do not have much influence on their own situation and livelihood. These circumstances can be considered as vulnerant factors. Corporally by giving raise to conditions of stress, fear and violence; socially and culturally by inducing mechanisms of exclusion and segregation; liminally by emphasising the otherness through the construction of visible boundaries; and structurally by inadequately distributing entitlements and privileges, sustaining the survival of some groups but not others. Reconsidering that refugees came to Germany to restore emplacement, a sense of constancy, security, and identity firmly rooted in place, it seems questionable whether the layout of the accommodation centres actually reflects the purpose of protection or rather—following Bohleber—the purpose of controlling the uncanny familiar stranger. Knowing as a refugee that all these circumstances are directed against you and not against others just because of who you are and where you are, could be hurtful and also facilitates the vulnerabilisation of refugees. In reference to Audre Lorde’s work, which discusses the political significance of survival, Sara Ahmed conceptualises vulnerability as part of political warfare: “When you are not supposed to live, as you are, where you are, with whom you are with, then survival is a radical action; a refusal not to exist until the very end; a refusal not to exist until you do not exist. We have to work out how to survive in a system that decides life for some requires the death or removal of others. Sometimes: to survive in a system is to survive a system.” (Ahmed, 2014, para. 3).

The next section gives an account of surviving the system of refugee accommodation.

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Collective Accommodation Centres During Covid-19 Pandemic: Women’s Experiences

Covid-19 seems to present a particular challenge for the residents of collective accommodation centres, considering how difficult it is to maintain physical distancing and hygiene practices in places where many people live together in a confined space. Unsurprisingly, Covid-19 outbreaks have been identified in collective accommodation centres throughout Germany (Bozorgmehr et al., 2020). The injunction “stay home stay safe” seems to have a very different meaning for refugees and asylum seekers in these centres given that “staying home” implies sharing bedrooms and sanitary facilities with groups of other residents in unsafe conditions. The Break Isolation Group3 of the International Women Space Berlin (IWS), a feminist, anti-racist political group of migrant, refugee, and non-migrant women, collected reports from women living in different accommodation centres near Berlin about the situation in the centres during the pandemic, the “Corona Lager Reports”4 . With the kind consent of IWS, we conducted a preliminary analysis of their reports in order to learn more about vulnerabilities in the context of the Covid-19 pandemic in collective accommodation centres. First of all, we must note that the content of the reports differs in terms of the size of the respective accommodation centre, the number of positive Covid-19 cases or problems described regarding the implemented Covid-19 prevention and protection measures. In few centres, the situation is under control, and women appreciate for example the efforts that are taken to maintain hygiene (see IWS, 2020, Corona Lager Report No. 22) or generally consider the prevention measures as commendable (see IWS, 2020, Corona Lager Report No. 25). Other reports, however, make clear that the strategies put in place to protect against infection sometimes lead to further uncertainty, discrimination, or exclusion, and thus contribute to the vulnerabilisation of refugees, as the following paragraphs show. One topic that frequently arises in the reports relates to the degree to which the women feel protected against infection by the measures and strategies implemented for maintaining hygiene and physical distancing. One woman reported poor 3

The Break Isolation Group is a self-organised subgroup of IWS comprised of refugee women who share and discuss their experiences and challenges in weekly meetings. 4 The term “Corona Lager Report” refers to the women’s experiences in regular refugee accommodation during the Covid-19 pandemic. “Lager “ can be understood as a synonym for camps, here referring to German collective accommodation centres for refugees and asylum seekers.

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hygienic conditions in the accommodation centre she lives in and hygiene standards of which have actually declined since the pandemic started. She pointed out that the residents started to clean the facilities themselves and she wondered: “[…] how will corona go if our toilets are dirty? So it is something that is bothering“ (IWS, 2020, Corona Lager Report No. 12). In two reports, women described that physical distance is only maintained in the canteen, whereas it was difficult to maintain physical distance elsewhere (IWS, 2020, Corona Lager Report No. 14 and 24). Another woman, whose report was already published in April 2020, described what happened when a larger accommodation centre that hosted around 600 people was closed and residents had to be distributed to other centres. This seemed to be a desperate situation for her: “There is no solution! People are worried, because they are trying to fix people in one room. […] they are squeezing people in one room, not knowing who is sick and who is not sick. It is not a good situation. People are worried.” (IWS, 2020, Corona Lager Report No. 6)

So, during the pandemic, the residence obligation is even more problematic if the conditions in the accommodation centres do not allow residents to adequately protect themselves from infection. This has also been confirmed by a few court decisions, which state that the housing conditions in the respective accommodation of the plaintiffs would not allow compliance with physical distancing. As a consequence, they were allowed to leave the accommodation (e.g., VG Leipzig, 22.04.2020; Az. 3 L 204/20; VG Münster, 11.05.2020, Az. 6a L 365/20). While in many other public places maintaining physical distancing is prescribed by law in the federal Corona infection regulations, refugees and asylum seekers in collective accommodation centres seem to be neglected. In some of the IWS reports, women further questioned whether the implemented measures actually still aim to protect residents against Covid-19. One woman explained that it would have been very unclear which measures were taken and why. She described that residents were frequently moved to other accommodation centres and rooms without explanation, remaining in uncertainty about what was happening (IWS, 2020, Corona Lager Report No.19). Covid-19 measures are not always clear for the general population. However, refugees and asylum seekers in the accommodation centres may have fewer opportunities to access information to overcome these uncertainties. Especially when language barriers are not addressed adequately, and the accommodation centre has limited or no internet connection, residents are systematically excluded from knowledge and are forced

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to become dependent on others. Later on, the same woman described that not collaborating with the measures (e.g., quarantine) would be connected with consequences regarding their permission to stay or with reductions in their financial allowances. She also reported that the security staff would control when residents exit and enter the accommodation centre during quarantine. Thus, she believed there is “[…] no more hygiene in politics”, when she stated: “There are things implemented and they are not in the law. This [is] a strategy to take advantage of this pandemic time” (IWS, 2020, Corona Lager Report No. 19). She thus thought that the measures taken exclusively for asylum seekers were used as a mean of political control rather than for the prevention of Covid-19. She felt like being in jail, being monitored, pressurised, and left in uncertainty. That all this was happening due to the pandemic was hard for her to believe as confinement to one space did not apply to the general public. In another report a month earlier, a woman outlined that she had to undergo quarantine although she was not sick. She did not understand why, but she was made to understand that if she was not collaborating, she would not receive her monthly wages and her visa would not be prolonged. This was a painful experience for her: “I don’t understand, what the quarantine has to do with my money or with the prolonging of my visa to stay here. I think for me – or what I think is a little bit of racism and taking advantage of this Corona time – it is really, really painful, it is really disgusting and you have to do something about it.” (IWS, 2020, Corona Lager Report No. 17)

Her feelings convey a “knowledge of directedness”, considering that among the general population there is rarely control whether people who need to be quarantined actually maintain it or sanction if they do not comply. Additionally, income and residence permit are of essential importance for refugees and asylum seekers, threatening to take that away from them would simply increase dependencies and put them in an even greater position of weakness. The same applies to residents who are not appropriately being informed about measures taken in the accommodation centres. One woman from a small remote accommodation centre located in a forest reported that the accommodation centre repeatedly received new groups of people for short time periods during the pandemic, who spent two weeks in quarantine and left again. She could not make sense of this situation and then described other difficulties in gaining information due to the absence of social support services, poor connection to public transport and unaffordable access to internet. She concluded:

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“Everything here is complicated. We don’t understand anything, we do not have anyone to ask any questions. […]. So we have so many questions to ask, or we need so many answers, but we don’t have anyone to give us all the information. But so far, we are ok, and we are waiting to see what will happen. And maybe now or later, we’ll find someone to give us the information”. (IWS, 2020, Corona Lager Report No. 23)

The situation she described—being physically segregated and lacking access to information—again illustrates how the vulnerabilisation of refugees is realised. Yet it may also show that this does not necessarily lead to vulnerability, as her calm and resilient reaction on the situation may suggest. She felt confident to endure—or able to survive. This is also an example of showing power where power is structurally diminished. Another initiative by women refugees, Women in Exile, reported about a rule that was implemented in July 2020 in one refugee accommodation centre in Brandenburg. This rule stated that residents who stay outside the accommodation centre for more than 6 h would be tested for Covid-19 and quarantined for 3–5 days (Women in Exile, 2020a). The residents were thus labelled as suspicious cases simply by leaving the accommodation for a certain period of time, without this suspicion being justified. While leaving the accommodation centre was considered a risk of infection and therefore had to be controlled, the regulations of the federal state Brandenburg for the prevention of SARS-CoV-2 in force at that time did not account for any curfews that would warrant this approach.5 This rule not only denies residents the opportunity of a self-determined everyday life, but it also illustrates that residents are not trusted to be able to protect themselves in order to justify such surveillance. Whether residents are denied compliance with measures of physical distancing, lack information and are left in uncertainty, or have movements restricted by curfews, these examples show that the Covid-19 pandemic has brought up new vulnerant factors. To what extent these women (as well as other refugees and asylum seekers living in collective accommodation centres) can really be considered as vulnerable or not is not ours to answer. What we can say is that the circumstances described—which are mainly the result of the systemic structures that are in place—put them at risk of being vulnerable. As Women in Exile recommend, we must also consider refugees’ personal backgrounds, their histories. While some may suffer from these circumstances and actually feel hurt by them, others may be relatively untouched compared to what they have experienced in the past. By generalising their specific historic and cultural context, one would just attribute 5

For the full SARS-CoV-2 regulations of the federal state Brandenburg from 12 June 2020 see https://bravors.brandenburg.de/de/verordnungen-249912 (in German).

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to the silencing of refugees, turning refugees to “speechless emissaries” (Malkki, 1996). Whether vulnerable or not, the reports provided by these women showed us also that despite the challenges they are facing, they do have agency, owning the power they have by joining a group, by sharing their information, by using their voices to be heard. Indeed, following protests, the 6-h rule in Brandenburg was overturned and replaced with 48 h (Women in Exile, 2020b), presumably due to its arbitrariness. How refugee voices matter is also illustrated by Boochani’s story: the closing down of offshore MIRPC is undeniably related to the reports of Boochani, communicated to the world via text messages. Refusing to hear the women’s voices, or the voice of Boochani, imply that refugees cannot speak for themselves, or that what they say about their experience does not constitute knowledge. Denying them the power of representation is, in Spivak’s (1988) words, denying “the subaltern” to speak and constitutes epistemic violence.

5

Conclusion and Moving Forward

In this chapter, we strove to demonstrate the vulnerabilisation of refugees, motivated by the enactment of unconscious or denied hostilities towards the “uncanny familiar” sibling, through disturbing their sense of emplacement, the directedness of which is known by refugees. One way of addressing what we have problematised is to tackle the unconscious processes on a political psychological level. We believe that unless the mechanisms of vulnerabilisation and the motivations are recognised and worked through, the enactment of “Fortress Europe” and imprisonment will keep occurring. Enactment can be therapeutically utilised only when the unconscious conflict is made conscious, and the parties involved in the enactment work through the conflict. As Bromberg (1996) suggests, “only a change in perceptual reality can alter the cognitive reality” and for that to happen “an enacted collision of realities” is needed (p. 530). In psychoanalytic relationship, this necessitates “the willingness to know [the other] inside out in the only way possible—directly and personally” (Bromberg, 1991, p. 402). For this knowledge to materialise, creating spaces which allow for the voice and thus the recognition of refugees as agents is essential. Just as in the therapeutic relationship, firm refusal of being entrapped in the scene of enactment and critically reflected boundaries would allow for a new, healing way of relatedness. Thus, we hope this chapter and this book in general can serve as a reflection starter to openly contemplate the reasons why the political decisions of keeping refugees in mass accommodation are taken. Refugees themselves are already refusing to be entrapped.

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In line with the political warfare analysis, any act of survival, including the very act of seeking asylum by refugees and any act of self-care and selfpreservation in refugee accommodations, should be seen as political resistance, in and by itself a refusal to disappear when the “Fortress of Europe” is asking them to. Ahmed (2018) sees vulnerability and fragility, the not letting go of the hurt, as an integral part of feminist work as well as political transformation. As she puts it, “those who have been undone by suffering can be the agents of political transformation.” (p. 65). For political transformation to happen, people’s own powerful voices should be at centre stage. As Boochani (2018, p. 373 f.) puts it: “I am convinced that if the refugees in Manus Prison were provided opportunities to form and present a different perception of our character, we would be able to challenge the system in more profound ways. We could challenge the system with greater ease. But the reality is that Australia has done everything it can to ensure that we’re not perceived as this kind of character, not recognized as professionals, as valuable and insightful contributors to the discourse […] Respect is central. We need that to continue resisting, we need respect to become stronger and fiercer.”

With profound respect, we listen to the political demands of refugee women, women in exile: “Refugees deserve to live in decent housing, deserve to not live in fear of sexual violence, mental violence, physical violence or to the extreme loss of life all of which is the sad reality for women living in camps” (Women in Exile, 2020c). No Lager!

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in feminist, queer and anti-racist media cultures (pp. 1–28). https://doi.org/10.1080/080 38740.2019.1638084. Lorde, A. (1978). The black unicorn: Poems. Norton. Malik, K. (2018, June 10). How we all colluded in Fortress Europe. The Guardian. https://www.theguardian.com/commentisfree/2018/jun/10/sunday-essay-how-wecolluded-in-fortress-europe-immigration. Accessed 2 Dec 2020. Malkki, L. H. (1996). Speechless emissaries: Refugees, humanitarianism, and dehistoricization. Anthropology, 11(3), 377–404. https://www.jstor.org/stable/656300. Accessed 23 Nov 2020. MKFFI (2020). Sachstandsbericht staatliches Asylsystem 4. Quartal 2019. https://www. landtag.nrw.de/portal/WWW/dokumentenarchiv/Dokument/MMV17-3140.pdf. Accessed 18 May 2020. Mouzourakis, M., Pollet, K., & Ott, J.-D. (2019). The AnkER centres: Implications for asylum procedures, reception and return. https://www.asylumineurope.org/sites/default/files/ anker_centres_report.pdf. Accessed 6 Aug 2020. Nott, D. (2020). The COVID-19 response for vulnerable people in places affected by conflict and humanitarian crises. The Lancet, 395(10236), 1532–1533. https://doi.org/10.1016/ S0140-6736(20)31036-9 Popp, M. (2014, September). An inside look at EU’s shameful immigration policy. Der Spiegel. https://www.spiegel.de/international/europe/europe-tightens-borders-andfails-to-protect-people-a-989502.html. Accessed 2 Dec 2020. Schmitz, G. P. (2013, October 10). EU kauft Big-Brother-System für das Mittelmeer. Der Spiegel. https://www.spiegel.de/politik/ausland/eurosur-ueberwachung-statt-rettunga-927140.html. Accessed 2 Dec 2020. Spivak, G. C. (1988). Can the subaltern speak? In C. Nelson & L. Grossberg (Eds.), Marxism and the Interpretation of Culture (pp. 271–313). Macmillan Education. Swerdlow, A. J. (1991). Mortality and cancer incidence in Vietnamese refugees in England and wales: A follow-up study. International Journal of Epidemiology, 20(1), 13–19. https:// doi.org/10.1093/ije/20.1.13 Turner, B. S. (2006). Vulnerability and human rights. Pennsylvania State University Press. Women in Exile. (2020a). New corona rules for refugees in Wünsdorf. https://www.women-inexile.net/en/neue-coronarestriktionen-fuer-gefluechtete-in-wuensdorf/. Accessed 18 Sep 2020. Women in Exile. (2020b, August 5). Breaking news!!After our picnic and kundgebung in Wünsdorf camp, the 6hrs lockdown was lifted to 48 hrs.Our demand now is for abolishment of the lager. [Tweet]. Twitter. https://twitter.com/women_in_exile/status/129105751745 6502785 Women in Exile. (2020c, June 1). Refugees deserve to live in decent housing, deserve to not live in fear of sexual violence, mental violence, physical violence or to the extreme loss of life all of which is the sad reality for women living in camps. [Tweet]. Twitter. https:// twitter.com/women_in_exile/status/1267430719594397696.

Educational Inequalities, Vulnerability for Discrimination and the Politics of School Change in Germany as a Post-migration Society Mechtild Gomolla 1

Introduction

In Germany, new regulations, technologies, and infrastructures of output- and data-based governance have been implemented in ongoing school reforms since the 1990s. This includes elements of deregulation (school autonomy, new public management, quasi-markets). Core elements of the new ‘measurement culture’ are Germany’s participation in international school performance studies, federal statespecific and cross-federal states standardised tests, national educational standards, and competence-oriented instruction as well as a biennial published national indicator-based education report. Added to this is the generation of applicationoriented scientific knowledge, which should become the basis for evidence-based education (KMK, 2015; BMBF, 2003, 2008, 2018).1 Within this far-reaching restructuring a new approach to deal with the growing diversity of migration histories, first languages, private life plans, religious and ideological orientations represented in many schools, is postulated. Partly linked to discourses on education and inclusion as a human right (UN, 2006), school development is defined as an organisational framework for teachers, to develop further mainstream provision M. Gomolla (B) Fakultät für Erziehungswissenschaft, Helmut-Schmidt-Universität, Insbesondere Interkulturelle und Vergleichende Bildungsforschung, Hamburg, Germany E-Mail: [email protected] 1

In Germany the infrastructure for the coupling of the scientific and political system is still missing, e.g., institutions to assess research findings and make them available for practice. Instead of evidence-based policies rather a kind of cybernetic, ‘data driven’ government is asserted (Bellmann, 2016). © The Author(s), under exclusive license to Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2021 N. Fromm et al. (eds.), Power in Vulnerability, Studien zur Migrations- und Integrationspolitik, https://doi.org/10.1007/978-3-658-34052-0_9

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also under normative requirements of inclusion and social justice. All curricula, organisational structures, educational processes, and endowment in schools should be designed in a way that all children can participate equally (Standing Conference of the Ministers of Education and Cultural Affairs of the Federal States, KMK, 2013). Under this objective, characteristics of a so-called ‘migration background’,2 socio-economic family status, gender and/or special educational needs are conceptualised as risk factors in a new way, which are to be effectively addressed in school development and teaching. However, in Anglo-American countries, critical studies have long drawn attention to the fact, that inclusive and democratic education is undermined by output-oriented governance. Particularly a narrow focus on standards and fierce competition between schools, functionalistic concepts of teaching and learning, and rigid centralised accountability regimes (high stakes testing) have proven to be problematic.3 Such radical regulations have not been implemented in Germany to date. Nevertheless, the question arises as well, how appropriate the rationaltechnological New Governance with its positivist scientific approach is, to meet the complex educational needs within the post-migrant societal context.4 In the field of schooling and migration contradictory tendencies become visible: The studies conducted within the Programme for International Student Assessment (PISA) and subsequent surveys of educational achievements have revived the debate on equal opportunities that was petered out in the 1980s. Since then, the stated below-average school success of pupils with a ‘migration background’ in particular has been experiencing widespread public attention. 2

The category migration background is a genuinely social construction, which, as to be shown, occupies a central function in the negotiation of participation opportunities in population statistical, scientific, political, and societal discourse. According to the Federal Statistical Office, “[a] person has a migration background if he or she or at least one parent does not have German nationality by birth.” (Statistisches Bundesamt, 2018, p. 4) Previously owners of a foreign passport, all persons naturalised in Germany and all German and foreign citizens who immigrated to Germany after 1949 were considered to have a ‘migration background’; in addition, German citizens born in Germany were included if at least one parent immigrated to Germany after 1949 or was born in Germany with a foreign passport (Statistisches Bundesamt, 2014, p. 5). 3 See for example Slee and Weiner 1998, Rassool and Morley 2000, Gewirtz 2002, Thrupp and Hursh 2006, Dyson et al., 2010, Herzog 2013, Brown and Wisby 2020. 4 The term post-migrant emphasises that in a society where at least one third of the population is affected by migration, conceptual distinctions of ‘migrants’ vs. ‘non-migrants’ are no longer defensible. Instead, the significance of migration for society as a whole, in the sense of a common social space shared by all, is programmatically placed at the centre (Foroutan, 2016).

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Heterogeneity has become a popular topic in the political and scientific discourse. At the same time, however, a resurgence of assimilationist orientations has also been traced back to the New Educational Governance (Baros, 2006). While the overdue extension of teaching of German as a second language at all school levels was accelerated, a polarised debate concerning instruction in first languages of children with migration history and multilingualism—whose potential for the development of students is more difficult to assess in quantitative-empirical research—has broken out (Gogolin & Neumann, 2009). Similarly, research on the causes of educational inequality focuses largely on the language skills and family background of the students. Structural and institutional barriers against equal participation at the level of the school system, organisations, curricula, textbooks and other materials, decision making, and pedagogical practices—and measures to overcome these obstacles—are largely omitted (e.g., Diehl & Fick, 2016). Furthermore, political education as a subject in its own right and as a cross-curricular theme has been truncated by the business and standards orientation of schools (Langebach & Habisch, 2015; Messerschmidt, 2016). The understanding of intercultural education as part of general education, key qualification for teachers and learners and cross-sectional subject for educational science, which was established in the 1990s, has shifted back towards approaches, that are criticised as ‘foreigner pedagogy’ (Karaka¸so˘glu, 2009). In addition, the new output- and competitive orientation of schools in interaction with parental school choices contributes to selection and segregation to the disadvantage of children with a history of forced flight or migration, from deprived homes or with special educational needs (Karakayali & zur Nieden, 2013). Also, it is worth mentioning the result of the PISA 2018 study according to which educational inequality has hardly been reduced in the last two decades (Reiss et al., 2019). The aim of this paper is to explore the potential of new prevention and intervention approaches within the framework of the New Educational Governance for school development and school change in a human rights sense.5 In loose recurse to analytical perspectives on vulnerability findings from two empirical studies are drawn into dialogue: First of all, by means of a discourse analysis6 of key policy documents at the federal level I examine, how aspects of inclusion, social justice, and democracy are (re)conceptualised, distorted, or excluded within the 5

The human rights approach turns away from individualising categorisations. The focus is on social and institutional conditions of exclusion and discrimination through structural barriers to access and participation and their transformation towards fair participation opportunities for all (Bielefeldt, 2009). 6 See also Gomolla (2021).

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New Educational Governance and what consequences this has for the professional action of teachers dealing with difference and discrimination. The analysis of the official political discourse will be augmented by findings from the evaluation of a teacher training programme. Here teachers have been qualified as multipliers in their organisations, to initiate and support school development with a special attention on issues of social justice and democratic education.7 In the final discussion, I bring into perspective starting points for systematically applying the vulnerability concept to questions of school success and school development in the post-migrant society.

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Vulnerability In Social Relations of Difference and Inequality

Vulnerability generally refers to “the fragility or violability of a person, a social group, an object or a system” (Bürkner, 2010, p. 24; translation MG). As is explained in detail in other sections of this anthology (Sandra Göttsche in this volume), the term is increasingly used in political and scientific discourses on central phenomena of change and crisis of the present. Vulnerability is an ambiguous topos that is linked to a wide range of heterogeneous conceptual understandings, objects, scientific and application interests, theoretical and research traditions (Bürkner, 2010). To conceptualise vulnerability in fields of education Daniel Burghardt and colleagues (2017) consider the following analytical-heuristic moments as central: From an anthropological perspective, the focus is on the vulnerability common to all human beings. At the same time, factual risks or hazard potentials are distributed unequal in national and global contexts (ibid., p. 7). Vulnerability is an empirical-analytical and normative-critical concept. The identification of vulnerability always implies an appeal or a call to develop an awareness of its specificity, to respond to it and to protect the vulnerable appropriately. Burghardt and colleagues emphasise the political impact of the vulnerability approach: “Especially where potential or actual violations can be traced back to human action or socially produced living conditions, the project to overcome them becomes political” (ibid., p. 9; translation MG). Vulnerability is understood as the “inescapable flip side” of pedagogical concepts such as recognition, inclusion, empowerment, resilience or justice, which “implicitly always co-determines them without being separately identified” (ibid., p. 11; translation MG).

7

Summarising Gomolla (2019).

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The concept of vulnerability always includes the question of the “factors [that] can provide causes and reasons for the actualisation of the vulnerable disposition” (ibid., p. 12; translation MG). The “possibilities of hurting, damaging, discriminating” (ibid.; translation MG) are called vulnerantality, which is considered a constitutive moment of vulnerability. Vulnerability and vulnerantality always denote a potentiality. Underlying this is “ ‘the idea that a hazard cannot be directly translated into a risk. Rather, vulnerability describes the degree of vulnerability in relation to a given hazard’” (Bender and Schaller, 2014, p. 97; cited in Burghardt et al., 2017, p. 19; translation MG). This can involve both concrete physical and psychological as well as latent symbolic vulnerability (ibid., p. 20). The former may be exemplified by verbal or physical assaults with a racist background in pedagogical interactions. Symbolic violence becomes virulent, for instance, through a school-institutional habitus that disregards the languages or religions of minority groups (Arani, 2020; Dirim & Mecheril, 2018) or a racist bias in the representation of teaching content in textbooks (Höhne, 2004; Marmer & Sow, 2015). Conditions and strategies that claim to want to prevent injuries and hazards can also prove to be vulnerant factors through their intended or unintended effects, perhaps through the consolidation of essentialising group constructions and stereotypes – even as gateways to institutional discrimination (Gomolla & Radtke, 2009). However, concrete vulnerability is not only composed of factors that have a negative effect. It also includes available resources, coping and/or adaptation strategies (ibid., p. 19). For example, Louis Henri Seukwa identifies in his study of (educational) biographies of adolescents and young adults with a history of forced flight a kind of “habitualized survival skills” (Massumi, 2019; Seukwa, 2006), while Ellen Kollender (2020) has worked out parents’ strategies of adaptation and resistance to cope with experienced racism in their children’s schools. It is important to note, that coping resources, similar to risks, are not only understood as subject dispositions. They are also available (or not) on the institutional and socio-structural level (e.g., laws and institutional intervention structures on protection against discrimination; social counter-discourses against racism). Vulnerability is ontologically and epistemically a contingent phenomenon. In the ontological sense, the actualisation of vulnerability is not determined because it can be prevented by well-functioning protective factors or fortunate circumstances. Vulnerability is always also “a relapse to which people are ‘exposed’ even under apparently optimal conditions of resilience and empowerment” (ibid., p. 14). As can be seen in an intersectional view, the lives of members of social groups are not equally determined by a specific structural positionality (Degele &

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Winker, 2007). In an epistemic sense, what is visible and sayable or can be considered vulnerable under specific historical and cultural circumstances depends on concrete epistemological politics and discursive formations (ibid.). In educational and social science research, vulnerability has so far mostly been conceived as an opposite term to resilience in the sense of capacities of the subjects in coping with difficult life events and conditions. In the relevant literature, vulnerability, resilience, and the complex interplay of risk and protective factors are considered highly relevant with regard to characteristics and courses of precarious developments and educational biographies (ibid., p. 103; see also Opp & Fingerle, 2008; Werner, 2011). Likewise, great importance is attached to targeted resilience promotion and working on and with protective factors. With regard to the subjects, it is important to identify the strengths and competences that help children and adults to cope with the risks of their development and, based on this, to implement pedagogical measures to strengthen the subjective resistance forces. Critics object that the results of resilience research could be misunderstood and misused for “the production of highly integrated individuals” (ibid., p. 104) or for the purpose of making children or adults “ ‘fit’ for intolerable conditions” (Göppel, 2000, p. 89; cited in Burghardt et al., 2017, p. 104). As Burghardt and colleagues point out, the critical potential of vulnerability and resilience research is abandoned when the focus is exclusively on individuals and/or their immediate environment, whereas relevant socio-economic, socio-political, and educational contexts are ignored. The authors therefore suggest that vulnerability should no longer be understood primarily as an individual disposition, but consistently as a socio-diagnostic or socio-critical figure—“as an effect of a precarious life situation that can only be adequately recorded and described if its societal dimensions are taken into account” (ibid., p. 105). It follows that vulnerability is more than an individual disposition; it is also produced by socially generated risks or situations of danger, “which—for example through stigmatisation, withholding of recognition, disadvantage, marginalisation or exclusion—either lead to an increase in a disposition-related vulnerability of certain individuals or are themselves to be regarded as the cause of vulnerability” (ibid.). To critically examine policies of school development with regard to issues of inclusion, social justice and democratic education the vulnerability approach— especially understood as a socio-diagnostic and socio-critical figure and as an ethical topos—draws attention to at least three important points: Firstly, it takes into account the fact, that risks of disadvantage and exclusion not only result from dispositions of the affected persons and their individual background. Risks for concrete and symbolic violence are also inherent in social hierarchies and power relations, which do not stop at the school gates. Secondly, the vulnerability

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approach sensitises for the so called non-intended, performative effects of political and pedagogical measures to tackle inequalities, disadvantage, and exclusion. This brings into focus subjectification processes within the reconstructed relationships of system and organisational control: To what extent are pupils, parents and professionals with a migration history addressed as a target group through specific discourses, institutionalised norms, techniques and practices within the dispositive of New Educational Governance and thus possibly symbolically violated—for example by fixating them performatively on a special status and constructing them as ‘others’ through culturalising, deficit-oriented, and paternalistic attributions? Thirdly, in terms of epistemological politics (Ricken, 2011) it may be determined, how the institutional setting in which requirements of diversity and inequality are to be addressed is transformed within the discourse on schools’ effectiveness: Which new opportunities for action towards inclusion in a human-rights understanding or potential institutional closure effects are produced?

3

New Governance and the Silence Around Social Power Relations: A Discourse Analysis of Policy Documents

In the Federal Republic of Germany (FRG),8 the failure of education policy making to effectively adapt school organisations, curricula, and working methods to the complex consequences of migration has been criticised in the political and academic realm since at least the 1980s (Diehm & Radtke, 1999; Hamburger et al., 1984; Krüger-Potratz, 2005). According to a growing body of quantitative and qualitative scientific research and monitoring reports, the highly selective organisational structure of the German school system and often deficit-oriented and segregated special measures for children with an own or familial migration history proved to be gateways for practices of disadvantage and exclusion that have crystallised into forms of institutional and structural discrimination (e.g., Gomolla & Radtke, 2009; Konsortium Bildungsberichterstattung, 2006, 2016; Jenessen et al., 2013). Not until the year 2000 has the historically late legal recognition of the de facto transformation into an immigration society9 cleared the 8

As there were hardly any specific school policies for ‘migrant’ minorities in the former German Democratic Republic, the development in the new federal states until 1990 is not considered. 9 The new Citizenship Law, effective since 1 January 2000, extends the provision of citizenship (ius sanguinis) from 1913 to include aspects of territorial law (ius soli). According to this law, children born in Germany to foreign parents receive German citizenship at birth if one parent has lived legally in Germany for eight years and holds a residence permit or has held an

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way towards a new understanding of integration as a cross-departmental political task (BMI, 2001). Almost concomitantly, the PISA 2000 study (Deutsches PISA-Konsortium 2001) has triggered intensive public debates on the inadequate quality of schools in Germany. The closest link between school success and social origin—especially a ‘migration background’—in OECD comparisons caused considerable unrest. The KMK immediately promulgated a catalogue of fields of action (KMK, 2002a, 2002b) in order to improve overall school performance and “compensate for social disadvantages” (KMK, 2002a): To promote language skills in nursery schooling the traditional ‘Kindergärten’ were further developed towards a discrete pre-school level. The closer interlinking of pre-schools and primary schooling, including the cooperation of nursery and schoolteachers, aimed at the earliest possible school enrolment. At primary and lower secondary level, a focus was laid on the areas of competences tested in PISA. As a result, the teaching of German as a second language and languages of origin should be integrated into regular lessons (KMK, 2002a, p. 10). To support educationally disadvantaged pupils several strategies were suggested, including the integrative teaching of students with Special Educational Needs, cooperation between school and youth welfare work, recruitment of teachers for instruction of German as a second language and/or with an own migration history as well as the stronger link of school learning and work experience for vocational orientation and preparation (KMK, 2002a, p. 11). With regard to the professionalisation of teachers, there was an emphasis on the teaching of diagnostic and methodical skills for individual support as a component of systematic school development—also in German as a second language and origin language teaching – was emphasised. A large-scale program to expand all-day schooling, too, should improve the individual support of students “with educational deficits and special talents” (KMK, 2002a, p. 6 f.). The most far-reaching structural moment of change, however, was the agreement to implement “measures for the consistent further development and assurance of the quality of teaching and school” (KMK, 2002a). As Ulrich Steffens notes, PISA retrospectively fulfilled a catalyst function for the development of an overall strategy for school quality assurance and development (Steffens, 2007, p. 44). Thus, the “path of future integration work in the education sector” with regard to children and youth with a ‘migration background’ (KMK, 2006, p. 2) scheduled by the KMK, has been further developed in subsequent KMK documents and those of other actors.

unlimited residence permit for three years. A new legal framework to control migration and integration (‘Immigration Act’) processed on 1.1.2005.

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A Foucauldian discourse analysis of central education and integration policy documents at the federal political level between 1945 and 201910 examines more closely, how and with what consequences—for teachers as well as for students and parents—demands of inclusion, social justice and democracy are incorporated, (re)conceptualised, distorted, or excluded within the New Educational Governance as a new type of school reform in Germany. Some highlights from the data material can be summarised under five points: 1. The KMK Immigration Report of 2002 (2002a, p.15) distances itself from its 1996 recommendation on “Intercultural Education in Schools” (KMK, 1996). In the year 2002 and in subsequent resolutions the KMK emphasises the deliberate restriction to language support for children and young people growing up bilingually. Particularly for schools with a high proportion of bilingual children, systematic and effective instruction in German as a second language is defined as a priority and overarching task of quality development. In the purpose-means rationality of output control, German as a second language is stringently conceptualised as individualised compensatory support in order to increase individual and school performance. It is remarkable that all other mentioned strategies are linked to language promotion or placed at its service in this and subsequent documents. Even the ‘intercultural orientation’ of curricula, working methods and staff qualification, which is demanded in mantra-like fashion, is redefined as remedy to language promotion. In the 1996 resolution of the KMK on “Intercultural Education in Schools”, the development of critical judgement, value-oriented action, and clear attitudes of professionals “against intolerance and discrimination” (ibid., 2) in educational institutions and society is emphasised. These aspects are dropped in the early 2000s. The same applies to political education directed at all pupils, such as reflecting on orders of social belonging and dominance or getting aware of racism. The provision of intercultural education and intercultural competence that the 1996 declaration focused on, is no longer seen as part of general education. In the sense of remedial education, it is thus restricted to learners with a history of migration and to teachers in ‘schools with special needs’. An ‘intercultural’ orientation is even explicitly defined as “diagnostic […] competence and […] language provision “, which is dependent on the support of the “parental home” (KMK, 2002a, p. 14). The narrowing of the educational 10

As material serve documents of central federal political bodies, above all of the Standing Conference of the Ministers of Education and Cultural Affairs of the Federal States (KMK), published from 1948 to 2019 in the thematic context of education and migration (concerning the methodology see Foucault 2010; Link 1986; Höhne 2004; Jäger 2009).

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mission in the context of migration is based on the general assumption that the purpose of education lies solely in qualification. Purposes of socialisation or subjectivation, which according to Gert Biesta (2010) are also inherent in all educational and training activities, are no longer debatable, such as the question, whether first language teaching does not only support second language acquisition but also the empowerment and identity development of learners. This reduction is concealed by the fact that within the regimes of truth embodied in the New Educational Governance, the objectives of school reforms and quality development are largely presented as uncontroversial in the documents. Biesta and also Johannes Bellmann (2015) evaluate the abstraction from both the multidimensional purposes of education and from the controversy of their goals as a far-reaching depoliticisation. Normatively and politically ‘essentially contested concepts’ (Gallie, 1956) such as inclusion, integration or justice become empty phrases. 2. The omission of entire thematic complexes from the focus of New Educational Governance is related to the strict preference for empirical-quantitative research designs. The numerous qualitative empirical studies available, which unveil structural and institutional discrimination and racism as barriers to educational success are not taken into account. Similarly, elaborate concepts of education and school development critical of racism and discrimination are not mentioned, e.g., forms of anti-bias pedagogy, which are implemented at local level, sometimes on a large scale in elementary schooling or teacher training (see next section). Following Bellmann, this filtering can be interpreted as an indirect authorisation strategy, which hides “its political character in the guise of scientific ‘evidence’” (ibid., p. 49). In this way scientific and pedagogical perspectives are delegitimised or undermined, which attempt to understand school processes in their broader institutional and social context. It is precisely perspectives that are left out that seek to shift attention away from a primary preoccupation with the (migrant) ‘others’ as ‘the problem’ to the jointly shared social space – constituted by relations of power, belonging and difference, conflicts and ideally democratic negotiation processes. 3. The documents do recognise a contribution of the school system to the production of the identified educational inequalities. However, the epistemological and empirical models of school effectiveness research however have the effect that the causes are primarily attributed to the abilities of the students, especially their German language skills and their family background. The school is merely constructed as a ‘black box’, while the degree of “social, cultural and economic integration” (Die Bundesregierung, 2007, p. 15) of the families is also conceived as a determinant of school success. The individualisation of

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the causes of problems can be seen in the plethora of measures for supporting parents with a ‘migration background’, which grew rapidly in the 2000s. These range from information, qualification, counselling, and language support for parents to compulsory integration courses for new parents from third countries. The school is increasingly called upon to become a “language learning location” (KMK, 2009, p. 6) not only for pupils but also for parents, especially mothers (Bundesregierung, 2007, p. 65). The Immigration Act of 2005 also introduced compulsory integration courses for immigrants, which “supplement the topics of the general integration course by the areas of child education and care, education and training” (Bundesregierung, 2007, p. 85). It is seen as an instrument that is intended to provide “sustainable” help in “developing a stronger interest in education and school among parents and enabling them to actively accompany their children’s educational careers” (KMK, 2006a, p. 13). Overall, parents ‘with a migration background’ are increasingly becoming a target group for neoliberal activation measures (Lessenich, 2013). These are primarily aimed at guiding parents to take responsibility for their own integration and the educational success of their children and the school. The identified ‘lack of cultural fit’ between home and school then also serves as a justification for making parental participation mandatory, in some cases, and for imposing consequences on non-participation in government measures. However, parental participation in school is also “placed in the overall complex of measures to improve the quality of school education and educational work” (KMK, 2003, p. 57). “The ‘quality’ of the school, as is often expressed in the documents, should be improved “as ‘effectively’ and ‘efficiently’ as possible through greater parental participation” (ibid.; BLK, 2004; KMK, 2006a).11 4. In the justifications of these measures, within the analysed documents reference is often made to dichotomising and homogenising categorisations and constructions of difference (e.g., ‘we’ vs. ‘the others’, a divided and hierarchising view of different migrant groups, definitions of ‘pupils at risk’). Statistical recording plays an important role here. A key problem concerns the category ‘migration background’, which is constitutive for the empirical database of educational monitoring. As Bednaschewsky and Supik (2018) put it, contrary to the revision of the citizenship act German citizens are defined in recourse of the categorisation of their parents or grandparents “as ‘ethnic German’ or ‘not ethnic German’ ancestors in the biological-genetic sense” as natives or persons

11

See also the detailed discourse analysis on parental participation in schools by Gomolla and Kollender (2019).

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of migrant origin. Thus “an idea of being German in the sense of a biological ‘race’ remains active in this bureaucratic instrument” (2018, p. 185). At the same time German-born citizens, who supposedly do not look German or have names that do not sound German (who often term themselves or are termed in a political sense as ‘Germans of colour’), remain invisible in statistics. But as the authors make clear, it is precisely this group that is highly affected by discrimination in school and society.12 5. These prevailing views are certainly contested against the background of new laws to tackle discrimination, the Disability Rights Convention 2009, the growing awareness of pervasive racism in society and state institutions and the task to include thousands of new arriving children seeking asylum. The new version of the KMK resolution on ‘Intercultural Education in Schools’ of 2013 points the way forward, declaring decisive action by educational authorities and schools against structural and institutional discrimination as a priority task. However, such documents are the exception. They remain relatively unconnected, even alongside more recent resolutions such as the ‘Integration Act’ of 2016 and declarations on the integration of refugees, in which the individualising principle of ‘support and demand’ is reaffirmed as the core of newly established integration policy measures, while problems of structural and institutional discrimination are not mentioned. Interestingly, this logic is also hardly touched upon in the updates of the KMK resolutions on “Human Rights Education in Schools” and “Democracy as a Goal, Object and Practice of Historical-Political Education in Schools” (KMK, 2018a, 2018b), as well as in the Federal Government’s National Action Plan against Racism of 2018 (Die Bundesregierung, 2018). In these documents dealing with racism, political extremism and discrimination is redefined as a curricular topic for all students. The documents call for sensitising and strengthening the competence of the individual subjects as well as the institutions in dealing with multiple phenomena of racism and discrimination – including institutional discrimination. “Democracy in practice” is defined as a “fundamental quality feature” of schools, which is to be realised through “democratic school development and development of classroom practice as a cross-sectional task” (KMK, 2018b, p. 4). However, there are hardly any concrete perspectives to find, how to relate such an aspiration to the further development of organisations, curricula, staff qualifications, and pedagogics, with the aim of providing all students and 12

See also the critical discussion of the category ‘migration background’ and the alternative suggested by the Expert Commission of the Federal Government on the Framework Conditions for Integration Capacity (Fachkomission Integrationsfähigkeit, 2020, p. 218 ff.).

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parents socially just education opportunities and school places, where they can feel protected against discrimination. Overall, the results of the study indicate, that the new regulations of school development are far from shaping school conditions in a human rights-based understanding of inclusion and democratic education. The plethora of measures taken to improve the school success of children and young people with a history of migration (in interaction with other dimensions of inequality such as above all poverty, gender, or special educational needs) is undermined by a far-reaching depoliticisation of discourse and normative revaluations. Spaces for democratic school development and educational processes, in which aspects of plurality, difference and discrimination can be thematised and addressed in concerted professional action, appear to be systematically narrowed or closed. Here the theoretical and empirical models of school effectiveness research in interaction with managerialist steering instruments fulfil a central hinge function.

4

Struggling for Socially Just Education in Day-to-Day School Life: Evaluation of a Teacher Training Programme

Despite the tendencies towards a depoliticisation of school development that have been pointed out in the previous section, on the local level individual state or civil society institutions offer more and more professional trainings and support for institutional development under programmatic formulas of diversity and antidiscrimination. For example, in the city-state of Hamburg, since 2012, the state ‘Institute for Teacher Training and School Development’ in cooperation with the local non-governmental organisation ‘Coordination Centre for Further Education and Employment’ (KWB e.V./BQM) provides the teacher training ‘Quality development of schools in the migration society: further training for intercultural coordination’. The two-year programme is offered to teachers at schools that present a higher proportion of pupils with a ‘migration background’ and/or from socio-economically deprived backgrounds. The participating teachers are qualified to act as ‘Intercultural Coordinators’ in their respective institutions. In this function they are expected to initiate and support processes of school development with a special focus on demands of diversity, social justice, and democratic education. These may concern curricula, teaching and classroom practice, organisational development, and human resources. In line with the KMK resolution

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“Intercultural Education in Schools” of 2013 teachers and learners should be enabled to “judge and act in a plural society while recognising democratic principles” (information flyer of the second course of the training 2014–2016); the “reduction of discrimination is defined as a collective task of school development” (ibid.). In each course, about 20 participants receive an introduction in anti-bias work (Gramelt, 2010) and learn to make use of this approach in conventional fields of school development. The training programme is delivered outside schools. Initial practical projects in the participating schools are planned and supervised within different modules. The evaluation of the first two courses of the training programme, provides important clues on how to create school environments in which students, parents, and also teachers can feel protected from discrimination. The following insights seem particularly relevant within this treatise: While in the mainstream discourse of school quality development problems of discrimination are downplayed, the teachers participating in the evaluated training and their headmasters express a great need for professional expertise, ideas, and assistance to deal with the complex demands of diversity and discrimination in their daily routines. Above all, they demanded for professional support to promote the educational success and dismantle educational barriers for students from marginalised groups, to provide high-quality political education critical of racism, and to develop inclusive dialogues and cooperation with parents. After completing the training most of the participating teachers considered the combination of the anti-bias approach with concepts and instruments of school development as helpful to (self)critically reflect on their practices and institutional environment. The majority felt sensitised to discrimination—not only in social interactions, but also at the level of legal and organisational defaults, forms of knowledge, norms, and routines. Based on interviews and questionnaires, four central movements of reflection and learning could be reconstructed: a) An individual-related perception of educational problems of learners with (ascribed) migration history tends to be broken up in the direction of a systemic perspective on the (re-)construction of social difference and discrimination in the organisations. b) This is accompanied by a shift of attention from supposed cultural differences of pupils or parents to general pedagogical action requirements and arrangements. c) Furthermore, there is a growing attention to institutional barriers to equal participation for particular pupils or groups. d) Finally, the whole-schoolapproach and the acquired collaborative working methods of school development are deemed significant for one’s own professionalization—in a field that is potentially filled with uncertainties and taboos and in which many had previously felt with their efforts as ‘lone warriors’.

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Despite these general trends in the data material, divergent and contradictory interpretations of the meaning and goals of the further training by the participants occurred, too. In many oral or written statements, besides a heightened sensitivity for discrimination social demarcations were expressed with regard to pupils and parents, e.g., dichotomising constructions of ‘us and them’, culturalising, deficitoriented, and paternalistic views. With regard to the initiated projects in schools the study also found that despite of the rich activities, to adopt the school programmes, structures and processes better to the perceived demands of migration, expressions of racist violence and political extremism were only rarely and rather indirectly addressed in most school places. The same was true for the challenges of institutional discrimination. Many participants wished for an even stronger dissemination of (school-form-specific) intervention options against institutional discrimination. The evaluated questionnaires and interviews with teachers and school principals indicate that local school development under normatively highly charged goals of social justice and democratic education is determined to a large extent by conflicts and negotiation processes in a micro-political sense (Altrichter, 2010). Thus, all training participants described that, depending on different local conditions, they have resorted to a variety of strategies to inform their school heads and colleges about their function as ‘Intercultural Coordinator’ and to involve them in activities. In addition to official events, committees, and forums (e.g., conferences) and the establishment of small working groups with motivated colleagues, many have seen valuable opportunities in everyday practical collaboration with colleagues to share their knowledge, achieve multiplication effects, and build trust. Many participating teachers reported that racism was largely taboo in their organisations. They had the experience that the mere existence of the certified further training programme and the institutionalisation of the function of ‘intercultural coordination’ in the schools led to a kind of ‘officialisation’, to bring up the topic of racism and discrimination. Many teachers who had been informally committed to diversity-sensitive and discrimination-critical practice long before saw this as an important step forward and as a recognition of their efforts. Especially teachers with an own migration history—who felt themselves exposed to higher risks of discrimination—have experienced this as an important professional empowerment. As with any school development, a clear mandate for intercultural coordination and concrete support from the school head proved to be essential conditions, that the ‘Intercultural Coordinators’ could work effectively. In its overall tendency, the evaluation study validates that—even if issues of diversity, racism and discrimination are put on the agenda—the professional

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knowledge and skills of teachers and organisational capacities to tackle discrimination need to be developed in an explicit and targeted manner. This requires a clear mandate and support from higher levels, professional and time resources, long term perspectives and spaces in which the involved actors can examine their own institutional contexts for discrimination and develop alternatives in concerted action. Admittedly, the structural limits imposed by the overall framework of performance-driven governance become also evident in the evaluation. In addition to the low level of legitimatory material and personnel support, the limitation of the training to schools with a high proportion of students with a ‘migration background’ and/or from ‘deprived homes’ is also problematic. The ‘Intercultural Coordination’ takes on the character of a support measure for particularly ‘needy’ organisations (“Brennpunkt-Schule”), instead of implementing discrimination-critical curricula and ways of working in all schools, regardless of their pupil population (KMK, 2013).

5

Conclusion

The dominant discourse of New Governance, which has been analysed on the basis of policy documents, rests on a narrow understanding of risk factors, which are primarily located on the side of the students’ abilities (particularly their German language skills) and characteristics of a deprived familial background. In the neo-liberal reform logic, claims for social justice are limited to rather technical issues of the distribution of resources according to the indicated need of school organisations and subjects, especially for instruction in German as a Second and Educational Language. In addition, parents are increasingly addressed to take responsibility for the acquisition of German language skills, integration, and educational success of their children (and of the school). The concrete and symbolic risks of violation, disadvantage, and exclusion in education as a social field of power (Bourdieu, 2005) remain largely ignored. Some initiatives—especially in the area of language education but also awareness for a dialogue with parents at eye level—can be considered a necessary adjustment of the German school system to the pluralisation and transnationalisation of social relations and life prospects. Yet, in consequence of the outlined depolitisation of school development, students with a history of migration and/or from deprived socio-economic backgrounds are positioned as risks for schools—either as a threat to school performance results or as an occasion for a special allocation of funds on the basis of socially indexed funding. Both tendencies further reinforce the cycle of segregation, school failure and educational inequality.

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Conceptions of vulnerability as a socio-diagnostic and social-critical figure offer an important analytical extension with regard to current academic and political discourses on educational inequalities and policies of prevention and intervention to overcome these grievances. They potentially broaden the perspective on phenomena of disadvantage and inequality by bringing the integrity to be protected into discussion, without resorting to predefined essentialising group constructions. The recipients of educational offers are constituted in a relational perspective as active subjects, whose vulnerability to injury, disadvantage and exclusion depends not only on their individual and family dispositions, but also on risks of discrimination, which are embedded in institutions and broader social power relations. Under the topos of vulnerability risks of injury and exclusion for students, parents or professionals can be related to potentials for democratisation and solidarity within individual schools and their neighbourhoods as well as at the societal level. Thinking epistemic and ontological aspects of vulnerability/vulnerantality together “lead[s] to pedagogical questions about the possibilities of pedagogical prevention, which on the one hand needs analyticalepistemic abilities to perceive vulnerability and on the other hand needs strategies and practices to pre-empt the triggering conditions of vulnerability (and of vulnerantality)” (Burghardt et al., 2017, p. 13; translation MG). These approaches should be elaborated more systematically in the academic, political, and pedagogical discourse on inclusive schooling in the post-migration society.

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Documents cited in the text (in chronological order): KMK – Ständige Konferenz der Kultusminister der Länder in der Bundesrepublik Deutschland (Hrsg.). (1964). Unterricht für Kinder von Ausländern (Beschluss der Kultusministerkonferenz v. 14./15.05.1964). [Standing Conference of the Ministers of Education and Cultural Affairs of the Federal States (Ed.) (1964). Instruction for children of foreigners. (Resolution of the KMK, 14–15.5.1964).] Deutscher Bildungsrat. (1970). Empfehlungen der Bildungskommission. Strukturplan für das Bildungswesen: verabschiedet auf der 27. Sitzung der Bildungskommission am 13.2.1970 (Bonn). [German Education Council (1970). Recommendations of the Education Commission. Structure plan for the education system: adopted at the 27th session of the Education Commission on 13.2.1970 (Bonn).] KMK – Ständige Konferenz der Kultusminister der Länder in der Bundesrepublik Deutschland (Hrsg.). (1971). Eingliederung von deutschen Übersiedlern in Schule und Berufsausbildung (Beschluss der Kultusministerkonferenz v. 1971). [Standing Conference of the Ministers of Education and Cultural Affairs of the Federal States (Ed.) (1971). Integration of German repatriates in school and vocational training (Resolution of the KMK, 3.12.1971).]

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BMBF – Bundesministerium für Bildung und Forschung (Ed.). (2003). Zur Entwicklung nationaler Bildungsstandards. Expertise. Bildungsreform Band 1 (Berlin). [Federal Ministry of Education and Research (Ed.) (2003). On the development of national educational standards. Expertise. Educational Reform Volume 1 (Berlin).] Bund-Länder-Kommission für Bildungsplanung und Forschungsförderung (BLK). (2004). Vorschläge zur Verbesserung der Bildungsberatung für Personen mit Migrationshintergrund. Bericht vom 29.3.2004. [Federal Government-Federal States-Commission for Educational Planning and Research Promotion (2004): Proposals for improving educational guidance for people with a migration background. Report of 29.3.2004.] KMK – Ständige Konferenz der Kultusminister der Länder in der Bundesrepublik Deutschland (Hrsg.). (2006). Bericht „Zuwanderung“ (Beschluss der Kultusministerkonferenz v. 24.05.2002 i.d.F. v. 16.11.2006). [Standing Conference of the Ministers of Education and Cultural Affairs of the Federal States (Ed.) (2006). Report “Immigration” (Resolution of the KMK of 24.5.2002 as amended on 16.11.2006).] UN – United Nations. (2006). Übereinkommen über die Rechte von Menschen mit Behinderungen. Convention on the Rights of Persons with Disabilities (CRPD) vom 13.12.2006. Die Bundesregierung. (2007). Der Nationale Integrationsplan. Neue Wege – Neue Chancen (Berlin). [Federal government (2007). The National Integration Plan. New Ways - New Opportunities (Berlin).] BMBF – Bundesministerium für Bildung und Forschung. (2008). Rahmenprogramm zur Förderung der empirischen Bildungsforschung (Berlin). [Federal Ministry of Education and Research (Ed.) (2008). Framework programme for the promotion of empirical educational research. (Berlin).] DIMR – Deutsches Institut für Menschenrechte (author: Bielefeldt, H.) (2009). Zum Innovationspotential der UN-Behindertenrechtskonvention. Deutsches Institut für Menschenrechte. Essay No. 5, 3, aktualisierte und erweiterte Auflage (Berlin: DIMR). [German Institute for Human Rights (author: Bielefeldt, H.) (2009). On the innovation potential of the UN Disability Rights Convention. German Institute for Human Rights. Essay No. 5, 3, updated and expanded edition (Berlin: DIMR).] KMK. (2009). Potenziale erschließen, Integration fördern. Mehr Bildung und Ausbildung für Jugendliche aus Zuwandererfamilien! Erklärung der Partner des Nationalen Paktes für Ausbildung und Fachkräftenachwuchs in Deutschland, der Bundesagentur für Arbeit, der Kultusministerkonferenz und der Beauftragten der Bundesregierung für Migration, Flüchtlinge und Integration. [KMK (2009). Tapping potentials, promoting integration. More education and training for young people from immigrant families! Declaration of the partners of the National Pact for Training and Young Skilled Workers Development in Germany, of the Federal Employment Agency, the Conference of Ministers of Education and Cultural Affairs and the Federal Government Commissioner for Migration, Refugees and Integration.] BAMF – Bundesamt für Migration und Flüchtlinge. (2010). Bundesweites Integrationsprogramm. Angebote der Integrationsförderung in Deutschland – Empfehlungen zu ihrer Weiterentwicklung. [Federal Office for Migration and Refugees (2010): Nationwide Integration Programme. Offers of integration support in Germany - recommendations for their further development.]

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Die Bundesregierung. (2011). Nationaler Aktionsplan Integration. Zusammenhalt stärken – Teilhabe verwirklichen (Berlin). [The Federal Government (2011). National Action Plan for Integration. Strengthening Cohesion - Realising Participation (Berlin). ADS – Antidiskriminierungsstelle des Bundes (authors: Jennessen, S., Kastirke, N., and Kotthaus, J.). (2013). Diskriminierung im vorschulischen und schulischen Bereich. Eine sozial-und erziehungswissenschaftliche Bestandsaufnahme. Expertise im Auftrag der Antidiskriminierungsstelle des Bundes 2013. [Federal Anti-Discrimination Agency (authors: Jennessen, S., Kastirke, N., and Kotthaus, J.) (2013). Discrimination in the pre-school and school sector. A social and educational science inventory. Expertise commissioned by the Federal Anti-Discrimination Agency 2013.] KMK – Ständige Konferenz der Kultusminister der Länder in der Bundesrepublik Deutschland (Hrsg.). (2013). Interkulturelle Bildung und Erziehung in der Schule (Beschluss der Kultusministerkonferenz v. 25.10.1996 i. d. F. vom 5.12.2013). [Standing Conference of the Ministers of Education and Cultural Affairs of the Federal States (Ed.) (2013). Intercultural Education in Schools (Resolution of the KMK of 25.10.1996 as amended on 5.12.2013).] KMK – Ständige Konferenz der Kultusminister der Länder in der Bundesrepublik Deutschland (Hrsg.). (2015). Gesamtstrategie der Kultusministerkonferenz zum Bildungsmonitoring (Berlin). [Standing Conference of the Ministers of Education and Cultural Affairs of the Federal States (Ed.) (2015). Overall strategy of the Conference of Ministers of Education and Cultural Affairs on education monitoring (Berlin). DIMR – Deutsches Institut für Menschenrechte (authors: Niendorf, M., and Reitz, S.). (2016). Das Menschenrecht auf Bildung im deutschen Schulsystem: Was zum Abbau von Diskriminierung notwendig ist (Berlin). [German Institute for Human Rights (authors: Niendorf, M., and Reitz, S.) (2016). The Human Right to Education in the German School System: What is needed to reduce discrimination (Berlin).] Die Bundesregierung. (2016). Meseberger Erklärung zur Integration. Berlin. [The Federal Government (2016). Meseberg Declaration on Integration (Berlin).] KMK. (2016). Bericht der Kultusministerkonferenz zur Integration von jungen Geflüchteten durch Bildung. Beschluss der KMK vom 6.10.2016. [Standing Conference of the Ministers of Education and Cultural Affairs of the Federal States (Ed.) (2016). Report of the Conference of Ministers of Education and Cultural Affairs on the integration of young refugees through education (Resolution of the KMK of 6.10.2016). ADS – Antidiskriminierungsstelle des Bundes. (2018). Diskriminierung an Schulen erkennen und vermeiden. Praxisleitfaden zum Abbau von Diskriminierung in der Schule (Berlin). [Federal Anti-Discrimination Agency (2018). Identify and avoid discrimination in schools. Practical guide to reducing discrimination in schools (Berlin).] BMBF – Bundesministerium für Bildung und Forschung. (2018). Rahmenprogramm empirische Bildungsforschung (Berlin). [Federal Ministry of Education and Research (Ed.) (2018). Framework programme for empirical educational research (Berlin).] Die Bundesregierung. (2018). Nationaler Aktionsplan gegen Rassismus. Berlin. [The Federal Government (2018). National Action Plan to combat Racism (Berlin).] KMK. (2018a). Demokratie als Ziel, Gegenstand und Praxis historisch-politischer Bildung und Erziehung in der Schule. Beschluss der KMK vom 6.3.2009 i.d.F. vom 11.10.2018. [Standing Conference of the Ministers of Education and Cultural Affairs of the Federal

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States (Ed.) (2018). Democracy as goal, subject and practice of historical-political education in schools. (Resolution of the KMK of 11.10.2018).] KMK. (2018b). Menschenrechtsbildung in der Schule. Beschluss der KMK vom 4.12.1980 id.d.F. vom 11.10.2018. [Standing Conference of the Ministers of Education and Cultural Affairs of the Federal States (Ed.) (2018). Human Rights Education in Schools. (Resolution of the KMK of 11.10.2018).]

“They Are Stumbling Around Quite Helplessly”: How Supporters of Refugee Families Frame Vulnerability and Agency Relating to Childcare Anna Siede 1

Introduction

Among the large number of refugees1 arriving in Germany during the last six years, there was a considerable number of families with small children (cf. BAMF, 2019, pp. 5, 8; Krus, 2019). For these families, the access to early childhood education and care (childcare) can be salient: Childcare contributes to the education and upbringing of children and enhances parents’ possibilities to pursue educational and vocational activities and establish social contacts (cf. e.g., Baisch et al., 2017, pp. 11–12; Krus, 2019, pp. 131–134). In addition, it can be considered as the entry point into the German education system, as it is often the first point of contact for families with small children. Thus, the access and use of childcare can significantly influence the further integration2 and education trajectories of both parents and children.

A. Siede (B) Institute of Political Science (IPW), Leuphana University Lüneburg, Lüneburg, Germany E-Mail: [email protected] 1

I apply a broad understanding of this term, in line with the views of the supporters, including refugees in the sense of the Geneva Convention as well as asylum seekers, asylum applicants, persons entitled to subsidiary protection, tolerated persons or those whose asylum application has been rejected. 2 While the term integration can be criticised for connotations relating to an expected assimilation of refugees, it is the term that is used widely in the public discourse and by supporters. © The Author(s), under exclusive license to Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2021 N. Fromm et al. (eds.), Power in Vulnerability, Studien zur Migrations- und Integrationspolitik, https://doi.org/10.1007/978-3-658-34052-0_10

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While refugee children between one and six are entitled to a place in childcare, as all children residing in Germany,3 there are indications that access to childcare is comparably demanding for refugee families. This may, for example, be due to language barriers or unfamiliarity with the German education system (Jessen et al., 2020; Krus, 2019, p. 135; SVR-Forschungsbereich, 2013). On this basis, volunteers are often involved when it comes to supporting refugee families’ access to childcare, as previous research has shown (Baisch et al., 2017; Busch et al., 2018, p. 11). Consequently, voluntary support potentially influences whether and how refugee families gain access to childcare as well as their experience with using childcare. In this context, I assume that volunteers’ interpretations of refugee families’ needs and capabilities relating to childcare influence their offers of support and the extent to which these actually suit the needs of these families (cf. Thönneßen, 2019, p. 300). Against this background, this contribution sheds light on the perspectives of those supporting refugees. It is based on constructivist Grounded Theory Methodology (GTM) and uses qualitative, open interviews with persons who voluntarily support refugee families in accessing childcare or who coordinate volunteers (the two groups together are hereinafter referred to as ‘supporters’). I examine how these supporters frame problems relating to access to childcare and which solutions they propose, applying a relational understanding of vulnerability and agency. The findings contribute both to interpretive research of (integration) policy implementation and to research on the construction of cases in the field of social work. The contribution starts with a discussion of the role of volunteers in integration policy based on previous research and continues with a presentation of the conceptual framework, including the concepts of framing, vulnerability and agency, as well as the methodology. The section on findings presents and discusses supporters’ framings of problems and needs as well as their corresponding offers of support. The findings demonstrate how supporters vary in their depiction of problems and solutions and point to the implications of their framings. On the one hand, supporters play an important role in recognising vulnerability, which is a precondition for countering it. On the other hand, they face the risk of overemphasising vulnerability, while potentially disregarding or even hindering agency.

3

Children under the age of one are also entitled to a place under certain conditions. §§ 6 and 24 of the Social security statute book (SGB), Eighth Book: Child and youth welfare. Article 1 of the Law of June 26. 1990, BGBl. I p. 1163.

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Volunteers as Stakeholders in Implementing Integration Policy

Peaking around 2015, a large number of volunteers4 has been active in supporting the arrival of refugees in Germany, including with regard to providing general orientation, teaching German, translation, dealing with authorities or leisure (cf. e.g., Glorius, 2017; Karakayali & Kleist, 2016; Speth & Becker, 2016; Wagner, 2019). As mentioned above, volunteers are also involved in supporting access to childcare (Baisch et al., 2017, pp. 23–26, 40, 45–46; Busch et al., 2018, p. 11). In addition to providing practical support, the importance of the personal relationships between refugees and volunteers has been highlighted in the literature, e.g., as providing stability, emotional support or establishing social bonds (cf. e.g., Aumüller et al., 2015, p. 85 f.; Han-Broich, 2012, 2015). Furthermore, volunteers take on tasks relating to the implementation of integration policy where state institutions are missing capacities or to complement official offers (cf. e.g., Hamann et al., 2016, p. 50; Institut für Demoskopie Allensbach, 2016, p. 35; Kleist, 2017). Indeed, German integration policy documents at different levels underline the importance and potential of volunteers in relation to the integration of refugees, including for example the National Action Plan for Integration (Die Integrationsbeauftragte, 2020). There are differences between federal states and municipalities concerning the support of volunteers, including e.g., by funding projects as well as offering training and exchange (Dymarz, 2018; Henkel & Jung, 2018, p. 110; Schammann & Kühn, 2017, p. 25 ff.). Based on the significant involvement of volunteers in supporting the implementation of integration policy, it is important to reflect on the implications. For example, some scholars have pointed to the need for supporters to achieve a balancing act between recognising needs for support while at the same time not addressing refugee families as deficitary (cf. O’Higgins, 2012; Thönneßen, 2019). Against this background, it is important to understand how supporters define problems and needs. In this context, literature on the construction of cases in the field of social work usefully complements literature on the role of volunteers in integration policy. Indeed, there are overlaps between voluntary support and social work for refugees, as volunteers in some cases fulfil tasks related to social work 4

I apply a broad understanding of the term ‘voluntary engagement for refugees’, including anybody who is providing support for refugees on a voluntary basis and without aiming at making profits. This is in line with the definition used by the Federal Ministry for Family Affairs, Senior Citizens, Women and Youth (BMFSFJ). It includes persons who are active in more formal as well as informal contexts, such as neighbours or social workers who provide support outside of their work (BMFSFJ, 2017, p. 7 f.).

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or can support the aims of social work, e.g., in strengthening recipients (cf. HanBroich, 2012; Thönneßen, 2019, p. 291). As existing research from social work has pointed out, the process of how persons become recipients of support depends to a large extent on interpretations and interactional practices of the professional. These may be influenced by theory-based assumptions as well as the organisational context (Bauer, 2010, p. 249 ff.; Messmer & Hitzler, 2007). It is likely that similar mechanisms apply in the context of voluntary support for refugees, which is why this contribution can complement the debate introduced above.

3

Conceptual Framework: Framing Vulnerability and Agency

In this contribution, I examine the depiction of problems and needs relating to childcare as well as corresponding solutions in the narrations of supporters of refugee families. For this purpose, I use the concept of frames or framing. Following the approach of critical frame analysis as proposed by Verloo and Lombardo, a frame can be understood based on Goffman “as an interpretation scheme that structures the meaning of reality” (Verloo & Lombardo, 2007, p. 32). The corresponding verb framing implies the dynamic nature, highlighting the processual character of interpretation (Münch, 2016, p. 79). The analysis of frames or framing entails two dimensions, namely the interpretation of what is considered problematic and why (‘diagnosis’) as well as the interpretation of how such problems can be solved (‘prognosis’) (Verloo & Lombardo, 2007, p. 33). Frame analysis can help to uncover underlying assumptions that shape discourses or actions (cf. Verloo & Lombardo, 2007, p. 37 f.), in this case the support offered to refugee families. Concerning the framing of problems and solutions, I used the concepts vulnerability and agency as sensitising concepts, aiming to focus the analysis without pre-empting the findings (Charmaz, 2014, pp. 30–31). In line with Göttsche (in this volume), I understand vulnerability as a possibility or threat of being harmed, assuming that every human being is potentially vulnerable. Whether or not harm actually takes place depends on harming factors, context as well as the individual concerned (Burghardt et al., 2017, pp. 12–14; Schmitt, 2019, p. 284). To understand the supporters’ interpretations of vulnerabilities and relating problems and solutions, it is important to understand how they frame the factors causing vulnerability. For this purpose, it is helpful to identify the vulnerant factors portrayed in the narrations of supporters, based on the concept of ‘vulnerantality’ as introduced by Burghardt et al., (2017, p. 12) and extended by Göttsche (in this

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volume). On this basis, I assume that supporters may attribute vulnerantality or the potential of causing harm to social aspects (sociality), cultural aspects (culturality), structures (structurality) or the life situation marked by change relating to the processes of flight and arrival (liminality). Combining vulnerability with the concept of agency can be a helpful conceptual framework in particular relating to forced migration studies. It can help to understand the interdependencies between risks to be harmed and possibilities to act and can lead to nuanced analyses (Göttsche, in this volume; Schmitt, 2019; Wienforth, 2019, p. 296). Agency can be understood to refer to a person’s capability to act, which may be facilitated or hindered in the context of social processes (cf. Raithelhuber, 2012; Schmitt, 2019, p. 283). In a narration, agency can be identified by the linguistic construction of someone or something as the initiator or driving force behind something that happened (Lucius-Hoene, 2012, p. 42). Vulnerability and agency are closely linked to each other, although they are not opposites or in contrast to each other. Vulnerability always implies a possibility to overcome or counter any vulnerant factors. The identification of agency can point to a vulnerability that a person is trying to overcome (Schmitt, 2019, p. 285). In addition, restrictions to the agency of a person can mean that this person is in a vulnerable position. Connecting these concepts with the previously mentioned dimensions of frame analysis and insights from social work, I expect that supporters frame vulnerabilities as problems and thus the starting point of support and the facilitation of agency as a potential solution (cf. Scherr & Breit, 2020, p. 155; Wienforth, 2019, p. 296). In addition, I assume that the depictions of refugee families in relation to childcare access influence their arrival process, as such depictions mirror the type of support the families may receive (cf. the previous section). This is particularly relevant as concerns frames of vulnerability and agency. As pointed out by Göttsche (in this volume), while migration processes generally entail a high potential for vulnerability, there are risks of either denying these vulnerabilities or portraying migrants, in particular refugees, as helpless in a one-sided manner (cf. Jünemann et al., in this volume). Linking to the previously portrayed debates, this contribution aims to answer the question: How do supporters of refugee families frame problems relating to childcare access, which solutions do they propose and how do they frame the different stakeholders? The focus lies on contexts or situations in which supporters frame refugee families as facing barriers and how they possibly aim at enhancing agency in these instances.

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Methodology

This contribution is based on 18 qualitative interviews with persons who support refugee families in accessing childcare on a voluntary basis, coordinate such voluntary supporters or both.5 The interviews were focused on the personal experiences of the interviewees with refugee families accessing and using childcare. The approach to conducting the interviews followed in particular Charmaz (2014) and Weiss (1995). An interview guide served as preparation and support and was used in a flexible manner during the interviews, to allow for openness. The language of the interviews was German. The interviews were carried out between October 2019 and October 2020 in Lower Saxony, Germany. Lower Saxony is a federal state in the North-West of Germany and includes large rural areas as well as cities of different sizes. As concerns childcare, different initiatives aiming at increasing the availability of childcare places and supporting the inclusion of refugees exist at federal and state level (Niedersächsisches Kultusministerium, n. d.). Since 2018, parents in Lower Saxony do not need to pay fees for childcare of children between three and six years.6 This information is meant for contextualisation only, as this contribution does not aim at depicting the objective circumstances of the specific case of Lower Saxony, but the interpretation of problems by the supporters.7 The sampling strategy was based on the approach of theoretical sampling and aimed at identifying contrasting situations (cf. Charmaz, 2014, pp. 197– 200). Thus, the sample includes a diverse group of participants from different municipalities in Lower Saxony, enabling the identification of general tendencies rather than the characteristics of a specific local or organisational context. It comprises fifteen women and two men aged between 28 and 74 from five regions within Lower Saxony, including both rural and urban contexts. Several of them migrated to Germany or were refugees. All of them indicated that they spoke at least two languages, in particular German and English, whereas some also spoke French, Kurdish, Arabic, Dari, Pashtou or other European languages. Some 5

The interviews were carried out in the context of my dissertation project, which is embedded in the on-going research project “Integration through trust. How refugee parents of 0–5-yearolds build trust in early childhood education and care (ECEC) services in Lower Saxony”. The interdisciplinary joint research project is financed by the Ministry of Science and Culture with funding from the “Niedersächsisches Vorab” (1 February 2019 to 31 January 2022). For more information see: www.leuphana.de/idv 6 § 21 of the Law on Day-care Centres for Children, Nds. GVBl. 2002, p. 57. 7 For further context information concerning childcare in Germany, see e.g., Scholz et al., (2019, p. 29 ff.).

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were employed, whereas others were already retired. Most of them had children themselves. The sample includes coordinators from different institutional contexts, including from within municipalities as well as welfare organisations. Some volunteers were active within the context of funded projects, such as ‘Integrationslotsen’ (‘integration facilitators’), specialised mentorship projects for education entry as well as in independent initiatives; others were not connected to any organisation. Many of the volunteers have supported refugees for several years and have accompanied different families. As concerns the interpretation of the data, I used the concepts vulnerability and agency as sensitising concepts, as mentioned above. Following constructivist GTM, my approach entailed an iterative engagement in data collection and analysis, emphasising openness towards potential results (Bryant, 2017; Charmaz, 2014). The interviews were analysed in several steps, starting with open coding (Bryant, 2017, p. 97; Charmaz, 2014, p. 116 ff.). Subsequently, I reorganised the initial codes developed based on the research question and added codes to systematically understand framings of vulnerability and agency. Inspired by Göttsche (in this volume), Lucius-Hoene (2012, p. 53 f.), Schmitt (2019) and Verloo and Lombardo (2007), I devised guiding questions for the interpretation of the material. These relate to the framing of problems and solutions as well as the framing of the refugee families, the supporters themselves and other stakeholders. On this basis, central segments of the data were coded in more detail and by two coders independently to deepen the analysis by systematically looking at the data from an agency/vulnerability perspective and then comparing and discussing the assignment of the codes (cf. Lucius-Hoene, 2012, p. 50).

5

Findings

In the following subsections, the findings from the interviews with supporters are presented following a chronological logic. Thus, the first subsection discusses how supporters framed problems and needs relating to childcare access, focusing on framings of vulnerability and agency. Afterwards, I discuss how supporters framed the solutions, focusing on the extent to which they depict actions enhancing agency relating to childcare. As a contextual factor, it is important to note some key characteristics concerning the roles of coordinators and volunteers. First, the relationship depicted between volunteers and families varied in terms of scope, ranging from precisely structured relationships, e.g., focused on education specifically, to open relationships covering any needs. Second, the relationship depicted between volunteers

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and coordinators varied in terms of the extent of involvement or structuring of coordinators. As mentioned in the section ‘Methodology’, interviewees came from different organisational contexts. Some interviewees described rather structured relationships in the context of more or less specialised mentorships (e.g., Interviews 1, 7, 9, 27). In such contexts, coordinators may play a significant role in determining the scope and focus of support. They depicted themselves as developing projects to support refugees, providing input or guidance, for example in the context of training or information events, initiating talks in the beginning of a mentorship as well as guidance during the mentorship, e.g., by answering questions or making suggestions. Other interviewees described rather independent support relationships. This includes, for example, volunteers who were not at all or rather loosely associated with an organisation and who did not report of close contacts with coordinators (e.g., Interviews 5, 6, 8, 12, 14). Closely related, some coordinators highlighted the independence of volunteers, while they stay in the background, for example arranging contact, organising events for exchange or as contact point in case of problems (e.g., Interviews 10, 11, 18). Throughout this section, I use the term ‘supporters’ when referring to framings employed by both groups, coordinators and volunteers. Otherwise, I specify which group used a certain framing or in which cases there are explicit differences in framings.

5.1

Framing Problems and Needs

There was consensus among the supporters that refugee families have specific needs concerning childcare compared to other families in Germany. They consider childcare important for refugee families, highlighting effects on the well-being and integration of the whole family: According to the supporters, childcare8 entails the possibility for children to learn German, have first contacts with the German education system and socialise with other children. At the same time, parents (in particular mothers) gain valuable time for education, employment or dealing with administrative necessities. In addition, they can meet other parents (cf. e.g., Baisch et al., 2017, pp. 11–12; Blossfeld et al., 2016; Henkel & Jung, 2018; Krus, 2019, pp. 131–134). As concerns access to childcare, all supporters raised specific challenges for refugee families. They mention similar issues, 8

When referring to childcare, all of the supporters spoke of official childcare offers, in particular day-care centres or in some cases privately run day-care (‘Tagespflege’). Alternative offers such as parent–child-groups (‘Spielkreise’) or childcare offered directly in language courses were highlighted as not being sufficient (although they could fill gaps while families waited for a childcare place).

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including in particular the lack of childcare places, lacking information about the German childcare system and administrational requirements as well as language barriers. Some supporters also mentioned challenges relating to the use of childcare, including for example the communication with childcare providers. Depending on the context, some supporters, especially in rural areas, also considered mobility an issue. While the main aspects discussed were similar, supporters’ framings of the situation varied, in particular concerning the extent to which vulnerability or agency were emphasised.

5.1.1 Emphasising Vulnerability Highlighting the importance of childcare for refugee families, some supporters framed not using childcare as a risk of harm for children as well as parents and in particular mothers (Interviews 1, 2, 8, 12, 13, 14), thereby emphasising the vulnerability of the families: [...] especially the [refugee children], when they have been here in Germany for a year and do not get to know these kindergarten structures at all, are often socially isolated because they only hang around with the mother, and the mother does not attend German classes because she has a child who does not have a place in a kindergarten. It is a vicious circle, isn’t it? (Volunteer, Interview 8)

This volunteer highlighted how the effects for the child and the mother are interlinked. By using the term “vicious circle” she marked the problematic nature of the issue. In this case, both the child and the mother were framed as passive (“only hang around with the mother”, “does not attend German classes”) based on the lacking childcare place. Also focusing on the risk of harm, this volunteer framed childcare as a preparation for succeeding in the German education system: I find [childcare access for refugees] extremely important because the educational goals, especially in Arab families, are completely different from those in German families. But the children will have to cope with the German school system later on, and ultimately also with the German professional system. That means they also need to somehow internalise the German educational goals. And this is not possible in Arab families. [...] So, and because of this, so that they don’t fail in the school system or the professional system, I think it is extremely important that they are introduced to such values [...] at an early stage. (Volunteer, Interview 14)

She emphasised the potential vulnerability of the children, at risk of failing in their later education and employment trajectories. Her argument falls in the category of culturality, namely that the Arabic way of raising children does not cover

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important German values, such as independence. In this sense, she framed Arab families as deficitary compared to other families, needing childcare to catch up. As concerns the access to childcare, several supporters framed refugee families as generally disadvantaged. This usually entailed arguments relating to a combination of structurality and liminality. A common way of framing challenges was to refer to the general lack of childcare places combined with the situation of refugee families having arrived recently and not knowing the language and system sufficiently well (yet). For example, a coordinator from an urban context indicated that the lack of childcare places is “[b]latant. Everybody must wait here, including the Germans”. When asked what this means for refugee families, she explained: Yeah, they will be even further back, right? Because I think, if it is already difficult for a German family to find a place in a kindergarten and a place in a crèche. […] you have to get into the system, you have to book for how many hours, lunch, what do I want. [...] And you have to do it early. That’s a real challenge for families who move here and can’t do that. They can’t accomplish that. As a result, they often don’t have a place. (Coordinator, Interview 1)

She framed refugee families as vulnerable based on them being new and not knowing the system. One aspect is limited capability of refugee families to make use of the centralised online booking system. This is a structural aspect other supporters problematised as well, indicating that refugee families often do not have the relevant IT equipment, that the system is only available in German and that the procedures are complex (Interviews 3, 7, 8, 14). Another way of framing disadvantages relates to social aspects. Supporters assumed that refugee families need support in relation to childcare, including possibly to organise baby-sitting as well as to find their way through the structures. For example, a supporter in a rural area explained that, compared to German families who may have grandparents or other relatives to support, refugee families often do not have such support networks: I think they are very much on their own now, with less or no volunteers, and whoever has no family and is alone here in Germany [...], it is more difficult. (Coordinator and volunteer, Interview 27)

The supporter’s depiction suits the categories of liminality and sociality. She related the lack of family or support system to the situation of the refugee families who are in a new surrounding and alone, while the number of volunteers is decreasing (Interviews 8, 15, 18, 27). With this combination, it depends on the ability

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of refugee families to reach out to locals, which is difficult for many families according to the supporters. Closely related, another coordinator highlighted the importance of social contacts as well as official support structures in directing families towards help offers: Well (sighs), it is very rare that a family comes to me and says ‘we need help’. How should I put it? That’s merely human, isn’t it? [...] So, often they come and are encouraged by someone else. And these are often the [mentors9 ] or the people from the accommodation, or neighbours or teachers report this, or other counselling centres, and say, ‘listen, we have a family here, they are really stumbling around here quite helplessly’. (Coordinator, Interview 1)

She put the emphasis on the vulnerability of the families. While she indicated that barriers to ask for help apply to everybody, the picture she painted of the families “stumbling helplessly” in the view of supporters depicts the families as not being able to manage their new life in Germany on their own. The framing of helplessness can in this case also be interpreted as a strategy by the supporters to make sure the family is included in the project. Volunteers depicted similar situations, in which they highlighted the specific needs of refugee families in front of other stakeholders to achieve something. For example, this volunteer described a conversation with the head of a local kindergarten, who had indicated that she does not understand why refugees should be treated differently compared to other families: And then I said: ‘No, so this is only for a limited period of time, but if the refugees do not have a car, are single parents, are traumatised, how should they be able to take their children to the kindergarten that is five kilometres away?’ (Volunteer, Interview 8)

Thus, the volunteer highlighted refugee families’ needs to the head of the kindergarten, emphasising their potential vulnerabilities. At the same time, she acknowledged that this situation is limited in time. In the following sentences, the volunteer made her intention clear, indicating that, in her view, refugee families’ needs should be taken into account when it comes to the allocation of places. The previous examples point to the relevance of volunteers or other informal contacts in supporting the arrival of refugee families, including in relation to securing childcare. This also becomes visible when looking at the supporters’ depictions of practical hurdles in accessing childcare. Some interviewees framed 9

Referring to a local project concerning mentorship aimed at supporting the arrival of refugees.

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other stakeholders, in particular municipalities and childcare providers, as lacking an understanding of the needs of refugee families and not making efforts (structurality), which leads to exclusion or makes the families dependent on support. In the following quote, a volunteer provided her account of a conversation between an official in a municipality and herself. She went to the municipality with a refugee mother, who had been there before on her own, without achieving the expected result. The situation, which the volunteer framed as typical, started with the official justifying why they did not provide relevant information to refugee families: [...] ‘well, they have to ask, if they don’t ask, we can’t answer.’ – ‘Yes, but how are they supposed to know what to ask for if they are not familiar with our system at all.’ – ‘Well, I don’t know that either’. (Volunteer, Interview 12)

The interviewee indicated that the municipality was acting passively, not offering explanation concerning the childcare system. Other supporters mentioned similar experiences with childcare providers. For example, a coordinator discussed a mother with five children, none of which was in childcare. She had explained beforehand that in her experience, refugee families may not be used to a central and formal registration procedure, depending on the country of origin and whether they are from a rural or urban context. Thus, she depicted lack of knowledge in this regard as typical for this group, based on assumed (cultural) differences. In the following quote, she connected this knowledge gap back to a structural aspect, indicating that it would have been up to the childcare provider to explain the procedure to the unknowing mother: And in her perception, she had also registered for three kindergartens [...] because she had stopped by everywhere and probably left her name there. But she never really applied. And you know? Sometimes I don’t understand such a kindergarten director, that they don’t say: ‘here, (knocks on the table) I’ll print it out and you sign here’. (Coordinator, Interview 1)

Thus, the coordinator highlighted the limited agency of the mother in reaching her aim of registering the children as well as structural barriers, increasing the helplessness of the mother. Closely related, some supporters framed other stakeholders as not making efforts with regard to adjusting their communication to the language skills of refugee families, for example by speaking slowly or speaking English. In some cases, supporters assumed that this was related to a negative attitude towards refugees (Interview 12, 14, 27, 34). These examples point to the importance of recognising vulnerability to be able to counter it.

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5.1.2 Whose Vulnerability? When looking at the instances in which supporters highlighted vulnerability, there are differences in relation to whose vulnerability they focused on: the whole family, one or both of the parents, or the children. This in turn impacts the focus of the support they offer and fits the discussion on the construction of cases in the literature of social work, which points to differences in approaches (Bauer, 2010). It also links to the dimension studied in frame analyses, which includes the “role in diagnosis”, asking “Whose problem is it seen to be?” (Verloo & Lombardo, 2007, p. 34). This aspect is particularly striking in the interviews with volunteers. While coordinators rather constantly referred to families or parents as target groups of their offers, some volunteers varied in their approach. In the following two examples, the volunteers were supporting the whole family. However, they put a clear focus on the children, who in their view were at risk due to the limited capabilities of the parents. For example, a volunteer explained that she registered a child for childcare, but that the traumatised mother was not able to take him there. Although the volunteer acknowledged the health status of the mother, she explicitly indicated that for her “the child actually came first”. This may be connected to her negative assessment of the mother: And she sits there. She is doing her nails and sprucing herself up, but apart from that, the fact that her son is supposed to learn German, that she has to learn German, she has no motivation at all, right? (Volunteer, Interview 8)

In this quote, the volunteer depicted the mother as uninterested in her own and her child’s progress. Thus, she framed her as incapable of properly taking care of her son, including based on her mental state as well as her lacking motivation. Similarly, another volunteer put forward her assessment of a mother she is accompanying: The mother had only attended school for four years, one must say, in Iraq and is probably not, let’s say, the brightest button that ever shone, so learning is difficult for her. (laughs) […] But I think she doesn’t want to either. […] And the result was, of course, that the little munchkin […], he didn’t learn the German language. And for him I strived intensively to find a kindergarten place. (Volunteer, Interview 14)

The volunteer made it clear that she does not think highly of the mother’s abilities and that she saw the son at risk for this reason. She indicated that the support relating to childcare was aimed at the son (“for him I strived”). This is in contrast to other situations, in which the same volunteers focused on the parents or mothers. For example, the volunteer from the previous quote spoke

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of another family she has supported, in this case focusing on the needs of the mother: […] I fought very hard for [her language course], because she always somehow fell behind. And she finally wanted to get started as well. She had come here pregnant and couldn’t do anything for the first few years. […] And now we somehow needed a bridge until the summer and then to the kindergarten. (Volunteer, Interview 14)

In that case, she highlighted the motivation of the mother and her vulnerability based on the circumstances. In identifying the need for childcare she used “we”, implying that she was cooperating with the mother. The examples in this section point to the relevance of the volunteers’ sympathy towards the different family members for deciding how to support them.

5.1.3 Emphasising (Limited) Agency In other situations, supporters did not focus on the vulnerability of parents or children, but rather highlighted the potential agency of parents (Interviews 7, 8, 12, 14, 18, 27). For example, they referred to the motivation or eagerness of refugee parents to participate in language classes, employment or voluntary engagement, thus explicitly acknowledging their agency: […] then, for a long time, the story was invented that a) the Arab women don’t want to put their children in kindergarten, they all prefer to have them at home. But what we as volunteers have experienced is that they said: ‘I want to go to German classes and I can only go to German classes if my child is in kindergarten’. (Volunteer, Interview 12)

Again, this volunteer framed the municipality as not understanding the needs of refugee families, whereas the mothers are portrayed as clear in their wishes. Thus, missing childcare was in these cases not framed as a risk of vulnerability, but rather a barrier to the realisation of the agency of the parents, in particular mothers. Barriers mentioned in this context were usually framed as relating to structurality, for example relating to the behaviour of municipalities: Yeah, if they go alone, they will be told whatever. [...] even many of those who already know German very well say that I should come with them again anyway because it is always assumed that the migrants have misunderstood it after all. […] They put everybody off, but of course it is even easier with migrants because then they say that they don’t understand the language anyway and if they don’t know the system, it is too complicated. (Volunteer, Interview 12)

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She framed the matter as an intentional exclusion, portraying civil servants as generally unwilling, excluding migrants on this basis. In her view, this is a structural issue in that town, as she pointed to the lack of diversity and intercultural training in the municipality. Consequently, although the volunteer recognised their agency, the families are still dependent on support, which can be considered a form of vulnerability (Schmitt, 2019, p. 286). In other cases, supporters framed challenges as relating to social factors as well as the situation of the refugee families (liminality). In the following example, the supporter discussed the challenge of participating in parents’ evenings: And the parents’ evenings are of course not quite enjoyable for the refugee families in the beginning, either. They don’t understand much yet. Recently, I heard that a woman had a parents’ evening and then took […] a friend with her to translate. And that didn’t go down well with the other parents because they thought they would chat all the time. But the other one just wanted to have a translation, for what was spoken there. (Coordinator and volunteer, Interview 18)

She attributed agency to the woman, who found a solution to her problem and is the agent in the sentence. However, this did not fit the social consensus of being quiet during the parents’ evening, which led to difficulties. The examples in this section point to the dynamic nature of framed vulnerability and agency. The supporters emphasised the agency of the parents, while at the same time mentioning situations in which agency may be hindered, potentially leading to vulnerability. This is in line with other research on young refugees in which supporters pointed to the importance of recognising both, agency and vulnerability (Gateley, 2013, p. 35).

5.2

Enhancing Agency?

All interviewees discussed the role of volunteers concerning access to childcare or reported how they supported refugee families on a voluntary basis.10 Coordinators spoke about the development of suitable support offers, establishing contact between families and volunteers or other stakeholders, training volunteers and acting as advisors to volunteers. Volunteers referred to support with registering children in childcare facilities, including with formalities or finding solutions when places were denied (cf. e.g., Karakayali & Kleist, 2016). In addition, some supporters discussed the use of childcare as a field of voluntary support, including 10

I discuss actions aimed at supporting families directly. This said, some of the supporters also discussed addressing structural aspects, for example by making shortcomings known to the municipality, thus indirectly supporting agency.

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concerning the communication between the families and the educators, driving children as well providing information on customs in childcare. Others explicitly stated that they were only involved relating to childcare access, in some cases explaining that they considered it inappropriate to be involved in the relationship between families and childcare providers. As concerns the framing of support, supporters put different emphasis on the extent to which independence or agency play a role.

5.2.1 Providing Practical Support: Acting for or with the Families All interviewees highlighted the need for practical support with finding access to childcare and related aspects, such as applying for financial aid. When describing such actions, they sometimes portrayed themselves as playing a decisive role, indicating that families may not have gained access to childcare without their support. For example, a volunteer described how he and his wife accompanied a family and indicated that the family would have given up after receiving the first rejection letter, as they did not know additional options: In any case, we accompanied the process properly and so it did/ In the end it went well. (Volunteer, Interview 2)

Thus, supporters often highlight their own agency, in spite of some limitations they encountered. In addition, coordinators sometimes emphasised the agency of volunteers when describing how refugee families gained access to childcare. Wienforth described similar tendencies concerning the perception of own agency based on interviews with social workers in charge of unaccompanied minors (Wienforth, 2019, p. 298). However, there are differences in the extent to which supporters highlighted their own agency vis à vis acknowledging the agency of the refugee families. In a first way of framing support, interviewees focused on practical aid and results and described how they took on the search and registration on their own (e.g., Interviews 8, 14, 18). Thus, they are acting for the parents rather than with them (AWO Bundesverband e. V., 2018, p. 21; Kleefeldt, 2018) and framed themselves as the only agent, while the families appear to be passive: [...] and then I said: ‘Registered?’ No, he wasn’t. So, I signed him up [...]. (Volunteer, Interview 8)

This volunteer previously described the mother and her son in a particularly difficult situation and portrayed the mother as not very capable (cf. the section

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‘Framing problems and needs’). On this basis, she made her own assessment of the need of childcare and took it upon herself to register the child. This can be linked to the literature from social work, indicating that there are differences in the extent to which needs for support are negotiated with recipients (Bauer, 2010, p. 249 ff.; Messmer & Hitzler, 2007). Accounts of limited interaction were also visible in other interviews (e.g., Interview 13). While this may be an efficient way, it may lead to disregarding the families’ preferences. In addition, it might have implications for the relationship between the parents and the childcare provider, as demonstrated in the following example. A volunteer was trying to secure a childcare place and emphasised the vulnerability of the child for this purpose. Yet, she questioned the parents’ competence in her first contact with the childcare provider, possibly affecting the attitude of the childcare provider towards the parents: And for him, I made intensive efforts to find a place in childcare. [...] So, I spoke to the head of the kindergarten and described the situation and said: ‘The little munchkin has to learn German. He doesn’t have the chance at home. And apart from that, I think his parents are also quite incapable of raising him. So that’s not going well. And he has to go somewhere now/ he has to get support.’ (Volunteer, Interview 14)

This way of acting is usually connected to emphasising the vulnerability of the family, in particular of the child, and assessing the capabilities of the parents as limited (cf. the section ‘Whose vulnerability?’). The focus in this way of framing support is to facilitate smooth access and use of childcare. Thus, including a child in childcare as quickly as possible was seen as a primary goal, as it increased the options (or agency) of the whole family with regard to other aspects of life, such as employment. However, agency relating to the parents’ abilities to act independently in the German childcare (and by extension education) system was not reflected on. As long as volunteers are taking over for the families instead of accompanying them, the learning experience for the families can be assumed to be limited. This was reflected on by a coordinator, who problematised that it is sometimes difficult for families to take their own decisions, especially when this means saying ‘no’ to supporters, who can also be overambitious. In the following quote, she acknowledged this aspect and depicted how she sometimes encourages the families to take their own decisions: It is often about respect, I know that, but ‘you don’t have to, you can also say no, you can also say no to me, everything is fine’. I say that really often. […] That is difficult for them, I think. […] They should say no, also to volunteers, some of whom can easily be encroaching. And ‘No, this is your life, please say no. That is for you to decide and

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not the volunteers. Just because they think it is better for you, please say no.’ Yes, but this is difficult. (Coordinator and volunteer, Interview 27)

In this case, the interviewee framed the families as possibly limited in their agency, as it is difficult for them to say ‘no’ to those supporting them. The coordinator noted that the relationship between refugees and volunteers has a hierarchical note to it, making it more difficult for refugees to take their own decisions. Accounts of hierarchical notes to the relationships can also be found in other interviews. In some cases, supporters rather framed themselves as knowing what is good for the families and portrayed how they asserted their opinion to them, e.g., in relation to the importance of childcare (Interview 13) or to the way children are to be raised (Interview 8). Similar difficulties relating to volunteers overstepping boundaries are also discussed in other qualitative studies (Jünemann et al., in this volume; Wagner, 2019). In addition to possibly endangering the autonomy of refugees, such overambitious behaviour of volunteers may lead to overstrain on the side of the volunteers, as pointed out by this coordinator. She depicted how she usually intervenes in such cases, providing guidance to volunteers: When I talk to volunteers, I often say that this is really only accompanying. [...] ‘They are responsible for themselves, you don’t have to take responsibility for them, and you have limits which you have to respect. Also for you, so that you protect yourselves.’ How many have burnt-out. Because [...] ‘why are you doing all this? They are independent people, you don’t have to take over and manage their lives now, it’s not meant to be like that’. (Coordinator and volunteer, Interview 27)

She indicated that she has to highlight the agency and independence of the family to the supporters, implying that supporters do not always recognise it. The overstrain she mentioned may contribute to decreasing numbers of volunteers, as she implied by using the term “burnt-out”. Indeed, she mentioned that there are too few volunteers to cover the needs of families with children. Several interviewees from rural areas and small or medium-sized towns mentioned this aspect, too (e.g., Interviews 8, 18). While some interviewees problematised this, others mentioned that the number of refugees who need help has decreased, too. In other cases, volunteers accompany the process of finding a childcare place, which may increase the agency of the families, as they can observe and possibly learn and be more independent e.g., when they need to register a second child in childcare. This is also linked to framing families as vulnerable or limited in their agency and thus in need of support. However, in this case the parents also play a role as agents, as supporters act together with the parents. For example, this

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starts by discussing the needs for childcare, taking care of formalities together and going to appointments together (e.g., Interview 1, 2, 3, 5, 7, 8, 12, 14). In this example, the volunteer differentiated between the options of the families, but in all cases acknowledged the agency of the parents and framed her actions as accompanying: […] so some people already have internet at home or a computer or whatever, they can register on their own or with the help of relatives or friends. If not, they come to me to the office and we try to do the online registration together. If not, then I accompany the parents to the Youth and Welfare Office. (Volunteer, Interview 7)

While the supporters acknowledged the agency of parents in their framings, communication with childcare providers still often takes place indirectly. For example, a volunteer discussed how appointments at the childcare providers usually worked: So, I had to tell more than that the mothers were being asked. Yes. Because they didn’t know that much German yet either. Therefore, they asked me, yes. (Volunteer, Interview 15)

In this case, the supporter framed herself as being addressed by the childcare provider instead of the mothers. She explained this with the limited agency of the mothers due to their limited language competences. Concerning the use of childcare, other supporters indicated that they acted as contact person for a childcare provider and, for example, passed on information between the childcare provider and the parents. Those who communicated with the families in German highlighted their own agency in this regard. They indicated that they were in a better position to communicate with the parents compared to the childcare providers, as they were used to speaking German with them or because they had contacts to other refugees who could translate informally (e.g., Interview 27).

5.2.2 Facilitating Sustainable Agency Some supporters discussed actions aimed at long-term results. Such actions can facilitate sustainable agency, as families gain resources they can use independently of the supporters. A common example of facilitating sustainable agency is to provide information about the education system. This includes informing parents about the formalities of the registration and financing of childcare, but also about daily customs in childcare and the role of active parent involvement (e.g., Interviews 1, 5, 7, 11, 14, 18). For example, a volunteer who had also come

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to Germany as a refugee and had similar experiences explained how she supported other refugee mothers: They want to go to the [language] course. And they asked: ‘What shall I do so that my child can also get a place in childcare?’ Then I said: ‘If you have an invitation from the school or if you are in a course, then you can get like a confirmation of the course and can present it in the kindergarten’. (Volunteer, Interview 5)

Another volunteer highlighted the role of information in empowerment. She discussed a conversation with a childcare provider that failed to inform a family that they needed to re-register, which led to them losing their childcare place: I say: ‘This is an Arab family. They have been in Germany for just about two and a half years. Well, I am a big fan of helping people to help themselves, but you first need to explain to the people how it works here, before they can help themselves then.’ (Volunteer, Interview 14)

Going a step further, there are projects educating parents concerning the education system so that they can pass on this information. For example, a supporter in a rural area explained that they offered a series of events for refugee parents, teaching them about the education system including childcare, enabling them to pass on their knowledge to other parents, thus strengthening their ability to help each other (Interview 18). Some interviewees explicitly discussed practical approaches supporting more long-term results. For example, a volunteer emphasised how she aims at ensuring that the families she accompanies act as independently as possible, including by regularly encouraging them to achieve matters on their own. This relates, for example, to recurring forms families need to fill out, such as the application for financial aid for childcare: And say ‘here, remember this, you have to apply again every year. We’ll now go through this once and next year you can do it on your own.’ Or one of the mothers, she always likes to come and say: ‘Mrs. [person], please write this’ and then I’ll say: ‘You can write it yourself, but I can sit beside you’. (Volunteer, Interview 12)

She added that this approach sometimes leads to difficulties, when the families make mistakes. However, she accepted this risk for the sake of encouraging independence and letting the refugees make their own experiences:

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Sometimes I think it would have been good, because then they didn’t realise the significance of what has happened and rushed past. Then it would have been good. But then I’ll get it in afterwards and then see what still can be fixed. So, I tend to say, ‘do as much as you can yourself’. (Volunteer, Interview 12)

In addition, some volunteers encouraged refugee families to actively participate in the childcare institution or build networks on their own. For example, they explain the purpose and highlight the importance of the parent talks (Interview 7). Closely related, some volunteers motivated refugee parents to participate in parent groups, providing possibilities for reflection and establishing contacts with other parents. For example, a coordinator of a project focusing on parent exchange and support indicated that they actively encourage mothers to participate in such groups. She highlighted the potential long-term gain for the participants: […] for them it was one of the best things that could happen to them because they met seven or eight other Arab women at a time and they are still friends and meet and talk and help each other. (Coordinator, Interview 3)

Thus, she framed the formation of an own social or support network as a positive aspect for the development of these women. Another supporter also discussed the establishment of contacts between refugees, indicating that she pays attention to finding accommodation close to similar families, e.g., from the same place, framing this as a way of ensuring support for these families (Interviews 18). However, not all supporters explicitly discussed strategies to facilitate sustainable agency and there are indications pointing to limitations in this regard. For example, a volunteer framed herself as central to take care of childcare registration: The first step is to go to the town hall, where she either accompanies the families directly or tells them to go there and “pick up the form” to fill it in together. Although she indicated that the person in the town hall could also support, this usually does not work out according to the volunteer. However, it is not clear why she does not provide more detailed instructions to the families and/or the responsible person in the town hall, possibly enabling them to take care of the matter on their own. Another volunteer explained that the family he accompanied in finding a childcare place for their first child still needed similar support for the second child: And if they had a need, they went by [a German-speaking volunteer]. But then they have to call me. They tell me in French. I translate that for [the volunteer] […]. And she really helped them, especially with the second child, so that everything is or was

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arranged properly, so that the child got a place in childcare quickly and normally. (Coordinator and volunteer, Interview 2)

Another factor reflecting the extent to which independence increases is the change of the support relationship over time, which is discussed in the following section.

5.2.3 Decreasing Intensity or Ending Support over Time Some interviewees explicitly highlighted that refugee families’ needs for support change over time and depending on the situation of the family. This reflects the temporal, fluid nature of vulnerability and agency (Schmitt, 2019, p. 287): So, if they got to know the system a little bit at some point, then I think that the parents are at the point where they can somehow continue to manage on their own. But it’s like a ball of wool, you have to find the beginning somehow. And then it continues whirling up on its own. (Volunteer, Interview 14)

In this quote, there is no explicit driver supporting parents in getting to the point of independence. Rather, the interviewee described a process, happening naturally. The supporter in the following example also described this process, explaining how she usually changes her approach over time. In this first quote, the supporter described very close, practical support for newly arriving families: And now it all starts. [...] I made doctor’s appointments. And registered the child in the kindergarten. Fortunately, I have now been given a place somehow after all. [...] And I filled in the registration forms. As I said, that was usually done by the helpers. (Coordinator and volunteer, Interview 18)

At this stage, the interviewee and other supporters are the only agents in this narration, taking care of the registration for the families. The families are passive. However, this changes once she or the other supporters have taken care of all the basics: And then, I think, in principle, everything should run by itself. Well, the parents have contacts with the educators and they will somehow communicate with each other, I think. […]. And if there is something, they will call me. (Coordinator and volunteer, Interview 18)

From this point on, she acknowledged the parents and educators as agents in the story, acting independently or asking for help when needed. Thus, the interviewee described how she is stepping back, thereby acknowledging the independence of

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the families. While all the interviewees who discussed changes over time acknowledged some form of stepping back, the interviewees’ accounts vary concerning their depictions of when and how the support relationships change, in particular between volunteers and coordinators. Several volunteers emphasised that support is needed for a long time after arrival, although the intensity changes. For example, a volunteer who closely accompanied a family after their arrival indicated that they see each other less often. However, he also emphasised that even after years, new topics arise that again require support. When the family does not have any experience with a certain matter, such as orthodontics, they are again in need of information as well as translation (Interview 2). Another volunteer indicated that it takes “at least five years, usually seven years” for refugee families to manage the administrational aspects on their own (Interview 8). She framed this as a structural aspect, based on the complexity of the German administration. In contrast, the coordinators formulated specific ideas on the changing needs of support and aimed at defining an ending to a close support relationship. They sometimes problematised when the practice is different. For example, two coordinators indicated that close support and information, including in relation to childcare, is especially necessary in the beginning, for around one year after a family’s arrival in a municipality (Interview 1, 18). However, one of the coordinators explained that volunteers in her project are supposed to end the mentorship after around one year, including based on the project budget and to ensure that newly arriving families receive the support they need. In practice, this often does not work in the coordinator’s experience and volunteers keep on helping informally. She framed limiting or ending support as a challenge for volunteers, which was mentioned by other coordinators as well. In these cases, coordinators sometimes framed the parents as overstepping boundaries, asking too much of volunteers (e.g., Interview 1, 11) or framed volunteers as overambitious (Interview 27, cf. the section ‘Providing practical support’). Indeed, it may not always be easy for volunteers to step back and accept that they are no longer needed. This was pointed out, for example, by Wagner (2019, p. 235), based on interviews with volunteers in Rhineland-Palatinate. How the factor ‘time’ determines the relationship between refugees and volunteers is also discussed by Jünemann et al. (in this volume).

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Conclusion

This contribution demonstrates how supporters of refugee families frame problems and solutions relating to childcare and points to potential implications of such framings. The diverse group of supporters pointed to various problems existing in relation to childcare access and use. According to the supporters, refugee families are at risk of being excluded from childcare services because of a combination of structural barriers as well as their situation and skills. The limited availability of childcare places puts these families in a particularly vulnerable position, as they are new to the German education system and language and possibly not (yet) included in steady familiar and social support networks. In addition, municipalities and childcare providers often fail in the views of supporters to accommodate for the needs of refugee families. The supporters framed these challenges in different manners, whereas two tendencies can be distinguished: • Focusing on vulnerability of the parents or children, i.e., highlighting challenges or deficits; and • Focusing on agency of the parents, i.e., portraying refugee families as (increasingly) self-sufficient, while still recognising limitations that often occur based on external factors. Which type of framing is employed depends on various factors, including the supporters’ assessments of the situation of the family as well as their general approach. Thus, there are differences between as well as within individual interviews, e.g., depending on the family or point in time. In addition, the narrations of volunteers contain differences concerning who they support, whereas some focused on parents or children depending on sympathy. In both ways of framing challenges, the findings point to the significance of voluntary supporters, who often portrayed themselves as playing a central role in understanding barriers for refugee families where other stakeholders are not aware or ignorant. Closely related, the supporters also depicted themselves as central to overcoming these barriers, often accommodating for the disadvantaged positions of refugees and/or structural shortcomings. Indeed, the supporters reported that they are often actively involved in facilitating the access to and use of childcare, including by supporting with formalities, mediating between the families and municipalities or childcare providers or providing information. Thus, all supporters emphasised the need for practical support. However, there are differences concerning the extent to which narrations mirror strategies or reflection concerning the facilitation of sustainable agency relating to childcare.

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In some contexts, supporters act for the families, in particular in relation to the search for a childcare place and registration. Usually, this is linked to an emphasis of the vulnerability of the family, or in particular children, and the (lacking) capabilities of the parents. In the narrations, supporters were framed as main agents, while parents remained passive. When supporters spoke of such practical aid, they usually did not explicitly reflect on agency relating to childcare. Rather, the aim was to secure a childcare place to establish agency in other life aspects, in particular facilitating parents to learn German or pursue employment. While this way of acting can sometimes be efficient, it entails risks. In addition to yielding limited learning effects, it can lead to volunteers overstepping boundaries. In contrast, other supporters rather described how they acted with the families. These supporters acknowledged or emphasised the agency of the parents, who play an active role in the narration. Supporters tend to be less present, including by accompanying parents or stepping back and letting them make their own experiences. Differences are also visible in relation to the understanding of the scope of support necessary and whether it is necessary and appropriate for supporters to be involved in relation to the use of childcare, after the registration is completed. In addition to descriptions focusing on such practical support, some supporters discussed actions facilitating sustainable agency. This includes, for example, the provision of information as well as explicit strategies to support the independence of the families, such as facilitating learning or encouraging and supporting the families in helping each other. However, not all interviewees discussed such strategies and others pointed to challenges in this regard. This may be connected to limited possibilities for reflection and supervision (Hamann et al., 2016, p. 50 ff.; Kleist, 2017, p. 29). Closely related, some interviewees discussed how the needs for support change over time. Generally, the data points to a gradual development of the type of support provided, from closer, practical support, to a more passive, reactive approach (cf. Jünemann et al., in this volume). However, coordinators and volunteers voiced contrasting views concerning when and how the support relationship is supposed to change. Volunteers on the one hand highlighted that, while the intensity of support decreases, long-term support is necessary, due to the significant challenges the arrival process entails and as new challenges keep on arising. Coordinators on the other hand voiced more concrete ideas concerning when to end a support relationship, but also noted that this does not always work in practice. Overall, the findings point to the significant role of voluntary supporters with regard to refugee families’ access to childcare. According to the supporters, refugee families are in some cases dependent on support, for example to secure a childcare place, and the supporters balance existing challenges. However, there

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are significant variations in terms of the framing of problems as well as solutions, hinting at the complex relationship between framings of vulnerability and agency. The material points to the importance of recognising vulnerability in order to counter it. A missing understanding of vulnerability can lead to exclusion, as pointed out in relation to other stakeholders. At the same time, overemphasising the vulnerability of the families can lead to disregarding their agency altogether. As pointed out in the social work literature (cf. Bauer, 2010, p. 249 ff.; Messmer & Hitzler, 2007), the interpretations of supporters are closely connected to their way of providing support. Indeed, the findings show how the emphasis of vulnerabilities can lead to overambitious support, for example in the sense of taking over for the families and disregarding the existence and facilitation of agency relating to childcare. It is crucial for supporters to find a balance recognising risks of vulnerability, while still acknowledging the agency of the families supported. This need for balance is also visible in social work (Messmer & Hitzler, 2007, p. 70), but can be expected to be especially challenging for volunteers (cf. Thönneßen, 2019). It is salient to complement these findings with the perspective of the parents, to understand the problems and needs from their perspective. This is planned in the context of our ongoing research project.

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Vulnerability and Agency in the Asymmetric Relationship Between Refugees and Their Volunteer Supporters: A Critical Assessment of Germany’s ‘Welcome Culture’ Annette Jünemann, Sandra Göttsche and Yaiza Rojas-Matas 1

Introduction

Among many other tasks, volunteers1 help introducing refugees2 to education, vocational training, the job market, teaching them German and supporting them

A. Jünemann (B) Institute for International Politics, Helmut Schmidt University, University of the Federal Armed Forces Hamburg, Hamburg, Germany E-Mail: [email protected] S. Göttsche · Y. Rojas-Matas Institute for International Politics, Helmut Schmidt University, University of the Federal Armed Forces Hamburg, Hamburg, Germany E-Mail: [email protected] Y. Rojas-Matas E-Mail: [email protected] 1

The term ‘volunteer’ stands for ‘volunteer in support of refugees’ in difference to professionals working in this field. 2 The term ‘refugee’ also needs further specification. We maintain a distinction between two kinds of labels: on the one hand, labels that are applied in a formal process that generates officially sanctioned categories such as the refugee, the asylum seeker, the holder of the subsidiary protection status and, on the other hand, labels that are used through daily social interactions but are produced outside of official bodies or administrations. In this article, the term ‘refugee’ refers to the latter, the label, which is used by a broad majority in daily speech, including the refugees and volunteers we interviewed. © The Author(s), under exclusive license to Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2021 N. Fromm et al. (eds.), Power in Vulnerability, Studien zur Migrations- und Integrationspolitik, https://doi.org/10.1007/978-3-658-34052-0_11

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with the complexities of asylum-bureaucracy. Yet, and despite their good intentions, their interactions with refugees sometimes turn out to be counterproductive, in the sense that refugees sometimes feel constrained to express and exercise agency. This sounds counterintuitive, but our interview-based empirical research sheds light on occasional deviations from what is commonly expected. How can we identify and understand such discrepancies between goodwill and outcome? This article argues that, on both sides, the ability to empathise and personal attitudes, such as respect and the openness to learning, are important parameters, but not a sufficient condition to guarantee a fruitful cooperation. Just as decisive is the context, which shapes interactions between refugees and their volunteer supporters. Important context-factors are for example the diverse legal categories because they determine refugees’ rights and entitlements.3 We, however, want to carve out those factors that impact on this very distinctive relationship from within, as a key to a better understanding of the more or less productive interactions between refugees and their volunteer supporters. Looking through the theoretical lens of the agency-vulnerability nexus (Schmitt, 2019), we combine a refined agency-approach with the vulnerability concept of Sandra Göttsche(Göttsche in this volume). The starting point of our analysis is the assumption that cooperation between refugees and their volunteer supporters is beneficial to the refugee if it allows him or her to (re-) enforce agency. The article is divided into three main sections. The first section, the research design, starts with an introduction to the theoretical agency and vulnerability approaches, followed by reflections on asymmetry and status, two contextual factors that shape power structures within this very specific relationship. To be able to grasp gradual transformations within the relationship over time, we then define an initial phase of arrival in the new country in contrast to the following, openended phase of settlement. These conceptual considerations structure the actual analysis in section two, which starts with a short methodological overview of how we generated our empirical data, subdivided in the phase ‘upon arrival’ and the phase of ‘successive settlement’. The article concludes in section three with a summary of our findings and some suggestions on how volunteers could better understand—and foster—refugees’ agency.

3

The legal category ‘refugee’ implies that its holder has been granted a three-year renewable residence permit. An asylum seeker is a person who has officially lodged an asylum request and is awaiting the processing of the application. The subsidiary protection status is a category that only grants its holder a one-year renewable residence permit. In contrast, a person who is granted the status of merely being ‘tolerated’ has no residence permit. His or her deportation is temporarily suspended usually for humanitarian reasons.

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The Interplay of Agency and Vulnerability: Looking Through the Theoretical Lens of the Agency and Vulnerability Approaches

We share Caroline Schmitt’s assumption that “a relational perspective on agency and vulnerability reflects how action becomes possible or impossible in social processes and relationships” (Schmitt, 2019). To analyse this nexus within the specific relationship between refugees and volunteers, it is necessary to substantiate both concepts, agency, and vulnerability. To do so, we link a heuristic concept of agency that we developed together with Hamza Safouane, with the concept of vulnerability elaborated by Sandra Göttsche in this volume. Our approach defines agency as “the capacity of a person to produce his or her own subjectivity given a specific social context.” (Safouane, 2019; Safouane et al., 2020) Although they are forcibly displaced individuals, refugees are not passive objects that are merely “pushed and pulled” (Van Hear et al., 2017) from points A to B. Rather, they are conscious subjects of their own migratory journey. However, the migration journey is an extremely vulnerable situation. While vulnerability, as a general term, describes the possibility of being harmed, we want to look at the factors that make people vulnerable. Those vulnerant factors address the possibility of inflicting harm. Therefore, vulnerant factors, in this context, act as potentially hurtful, disadvantaging and incapacitating for refugees. Refugee’s vulnerability is always dependent on vulnerant moments and conditions (Göttsche in this book). Refugees’ vulnerability originates from the restricting context of structural and/or personal violence (see Galtung, 1969), including some of the regulations, practices, and discourses, which together constitute the apparatus of migration management. Nevertheless, evidence of their agency are the many choices they have to make before, during and after their arrival. Hence, in this article we aim to apprehend refugees’ own perspectives and outlook on their forced journey, especially with regard to the arrival and settlement phases, which are both often attended by volunteers. Our Utilisation is not to pronounce which refugee has agency and who does not, nor who is more vulnerable than the others. Rather, we wish to examine which vulnerant factors in the given social context of the relationship between refugees and their volunteers disable or hinder refugees to express agency. The focus of this article points at refugees’ possibilities to (re-) enforce agency even in situations of increased vulnerability. We hold that all manifestations of agency must be included into the migration research agenda because they provide a close-up of refugees’ practices and decisions that indicate the various subjectivities adopted by them. Agency can take different forms and faces, sometimes difficult to detect, and is often a direct

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response to one’s attempts to overcome vulnerabilities. For a deeper understanding of the various, sometimes almost hidden expressions of agency and the vulnerabilities behind it, context is decisive. The interaction between refugees and their volunteer supporters is shaped by personal attitudes and dispositions on both sides. However, this alone cannot explain why their interactions sometimes result in an unintended curtailment of refugees’ agency. We identified asymmetry and status as the most influential context factors determining the relationship between refugees and their volunteers.

3

Context Matters: Asymmetry and Status as Vulnerant Factors During and After Arrival

Asymmetry is a vulnerant factor as it refers to the common situation in which volunteers dispose of more money, more knowledge and more social capital than the refugees they are meant to support. Thus, the interdependence between them is highly one-sided. However, power relations and the vulnerabilities that derive from them, can change over time, especially with regard to different aspects of the relationship such as emotions or knowledge. In our interviews, volunteers described how emotional interdependencies reverse when, for example, volunteers find it difficult to accept that refugees do not need them anymore. In this context, the metaphor of an ‘empty nest’ is sometimes used, referring to volunteers’ adoption of a parental role. Refugees may also gain deeper knowledge with regard to the system of social services due to their daily practice, which volunteers usually do not have. In this case, the refugee resumes the role of the expert. Both examples impact on the power relations within the tandem and both have to do with status. To refine the concept of asymmetry and to better grasp the fluidity of power within the unique relationship between refugees and their volunteer supporters, we discovered that status is another vulnerant factor (Enfield, 2011). Status is relational, not absolute, and it ascribes specific roles to people who interact with each other. According to the relative status in a well-defined relationship, both sides know more or less beforehand how to behave appropriately. Since the relationship between a refugee and a volunteer supporter has no precedence, there are no established role models to draw on leaving both sides without orientation as to what may be considered appropriate behaviour. Finally, linguistic problems may contribute to further confusion, as a young man from Syria explained to us at the

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end of the interview. It seems as though the term “god-father” (in German: Pate4 ), which most volunteers use to describe their role, cannot be directly translated into Arabic: “Well, this word doesn´t exist for us [meaning in the Arabic language]. One can [say] neighbour or friend, but no one would understand the word ‘Pate’. As they lived nearby, […] I used to simply call them neighbours.” (Syrian man, 23 years old)

As a result, especially Arab refugees find it difficult to understand the situation at the beginning of cooperation and often react with suspicion when volunteers introduce themselves. Language seems to be a particularly relevant vulnerant factor in the relation between refugees and their volunteer supporters. In the end, however, feelings of unease, mainly during the first encounters, hold true for both sides.

4

Time Matters: Changing Vulnerabilities Between Arrival and Successive Settlement

Whereas the beginning of this relationship is shaped by extreme asymmetries in favour of the volunteer (especially with regard to contextual knowledge), and insecurities concerning the relative status on both sides, these contextual factors lose momentum as time passes by. Accordingly, we distinguish between a first phase, which we call arrival, referring to the physical arrival in the receiving country and the first months that follow. In this initial phase, most refugees do not speak any German, still live in camps (or have to move from one camp to another), do not work or study and have limited access to German society. Upon arrival inscrutable bureaucratic procedures shape the beginning of their life as asylum seekers in Germany. Under these circumstances, most refugees feel rather helpless and depend highly on the help of volunteers. However, the arrival in Germany does not constitute the end of the forced journey (See Bank et al., 2017), but the beginning of yet another phase that we term settlement. This is when refugees gain more and more independence, as most of them start to learn German, gain access to work or vocational training and are able to build their own networks, 4

Originally the German word “Pate” is based on Christian tradition. This person would, from the moment of the child’s baptism, take care of the child in case the parents die and be responsible for his or her religious upbringing. However, today the term is also used without the original religious connotations for anyone who takes responsibility for someone else’s support. It is still a paternalistic concept, in this context, applied also to adults.

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ideally including other Germans. Nevertheless, it remains unclear to where this path leads, because the completion of settlement is difficult to objectify. We hold that a person has settled in the recipient country when he or she subjectively identifies as part of society and feels at home. This feeling of belonging (see Yuval-Davis, 2011) may materialise sooner or later, but sometimes it does not happen at all, so that we define the phase of settlement as an open end-period. According to our findings, the successive transition from the first phase of arrival into the second and open-ended phase of settlement is crucial in the interaction between refugees and their volunteer supporters. In the arrival phase, refugees see themselves confronted with “the other” (the receiving society) and have to decide which parts of this society (its norms and structures) they want to adopt or resist. In this context, language seems to be an empowerment factor rather than a vulnerant factor as we saw in the previous examples. Refugees who pick up the language easily are able to transition from the arrival phase into the settlement phase much faster. Therefore, being able to express oneself has a key impact on one’s agency. When refugees start striving for agency, the relationship with their volunteer supporters faces manifold challenges and needs to develop a new quality. It may result in a kinship-like relationship of emotional proximity, as notions like friendship or family exemplify, which we heard from both sides to describe a more balanced relational status (Stock, 2019). The professional distance that most volunteers wished to establish at the beginning, then often starts to vanish. However, this is a long process and cannot be taken for granted. Frequently asymmetries change in time but remain and continue to determine possibilities and expressions of refugees’ agency as the following empirical analysis will exemplify.

5

Interview Based Analysis of Refugees’ Agency Within the Social Context of their Interactions with Volunteer-Supporters.

In Germany, volunteering in support of refugees depends on private initiatives that can be, to a greater or lesser extent, seconded by governmental agents. Since Germany is a federal country, the regional and local level is decisive in this context. Conditions for volunteering in support of refugees vary a lot in the 16 federal states that may follow a more or less restrictive asylum- and integration policy (Hörisch, 2018). Additionally, cities and municipalities differ a lot in their attitude towards refugees and their volunteer supporters (Focus Online, July 16, 2019). Volunteers in support of refugees in Germany work under extremely different

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conditions, depending on the region and the municipality where they live. Therefore, in addition to the vulnerant factors described above, one can add specific structural factors that affect refugees’ vulnerabilities depending on their location within Germany. We generated our data in the region Schleswig–Holstein, which follows a fairly liberal asylum and integration policy compared, for instance, to Bavaria (and other regions), yet still in line with the increasingly restrictive asylum regime on national and EU-level (see Fleischmann, 2019). We chose a small town with about 30,000 residents and a smaller community with around 9,000 residents, both located in the outskirts of a bigger city in Germany. These are typical, yet often overlooked, environments outside the well-researched urban spaces. In 2015, the local governments of these two communities willingly received the incoming refugees, thereby creating a supportive environment also for the work of volunteers. Both communities are characterised by quite wealthy people with an average age of more than 48 years, which is well reflected in the group of volunteers we interviewed. The localities as well as the subjects of our interviews are representative for the new structures of volunteer support for refugees that evolved in Germany after 2015 (Karakayali, 2017, p. 17). The majority of the three men and seven women is already retired. Some of the volunteers support one person, others families with up to 10 people. Accordingly, some volunteers spend a few hours a week for their work, others several hours a day. The second group—the refugees—includes five men and seven women between 18 and 56 years. They came from Iraq, Afghanistan, and Syria, reflecting the main countries of origin of refugees in Germany (Federal Office for Migration and Refugees, 2016, 2017). This group included people who fled on their own, and families, who arrived together or regathered once they arrived in Germany. After locating and gaining access to the two well-organised associations of volunteers, we used the “snowball sampling” technique in order to gain access to the refugee’s community. To guarantee the anonymity of our interviewees, we took care that we did not interview “tandems”, that is refugees and their volunteers. All interviewees were informed that the interview is strictly anonymous and that it serves strictly academic purposes. The choice of location for the interview was made by the interviewees. We conducted 15 interviews with a total of 25 interviewees in November/ December 2018. This includes one group and seven face-to-face semi-structured interviews with 10 volunteers and five group interviews as well as two face-to-face interviews with 15 refugees. The interviews were all conducted in German except one, which was conducted in English, to make sure that all interviewees could comfortably express themselves. Moreover, the

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two interviewers who conducted the interviews with the refugees also speak Arabic and have experiences in the MENA region and with the Afghan community, which was an added value in establishing a trusting atmosphere. Nevertheless, the fact that German and English were not the refugees’ native languages may have impacted negatively on the interview situation. As well as the fact that we, the interviewers, are all European citizens and female. Thus, we understand that we are also a part of the system that we critically put into question. Our interview guide focused on the relationship between refugees and volunteer supporters in general, their expectations and roles within the relationship, the situations of disappointment and moments of criticism. All interviewees were asked to illustrate their statements with concrete examples, so that we gathered descriptions of manifold specific incidents as material for our content analysis. In addition to the interviews, our research draws on personal experiences and participant observation that we conducted as volunteers and as professionals working with refugees for several years.5

6

Upon Arrival: Delegation of Agency in an Exceptional Humanitarian Situation

When arriving in a new country, most refugees are extremely exhausted after their long and forced journey. Many are traumatised due to experiences of structural and/or personal, sometimes even sexual violence, in their home country but also on the way to a recipient country (Bank et al., 2017). They all have to cope with the deprivation of being away from home and the separation from family members and friends. Upon arrival, refugees are not only glad to have survived, but at the same time have to cope with negative feelings of sorrow and loss, disorientation, helplessness and distrust. In many private conversations since 2015, refugees often talked about their mixed feelings upon arrival. These negative feelings can be explained by wearing down experiences of the past as well as the current loss of control over their life. Not being able to understand the language, the bureaucratic and administrative measures they have to adhere to nor the written and unwritten rules in German society, all this adds up to an experience of extreme disorientation Even the questions of everyday life, such as place of residence and accommodation, in some cases also clothing and food, are decided for them from 5

One of us works as a volunteer in support of refugees since 2015, one worked as a professional in a refugee camp from 2015–2017, and one has special work experience with traumatised refugee women since 2015.

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above, minimising the possibilities for agency. It is in this extreme situation when refugees first meet the volunteers who offer help: “The first days we didn´t speak any German, [we didn´t know] where we were! What we [should] do! Where do we actually shop? She helped us. […] and now [she helps] with our papers and so on, she helps us a lot. And without a German woman or actually German people we can´t do it.” (Syrian woman, 19 years old)

This quote illustrates very well the feelings of being disoriented and helpless, that many refugees describe when looking back on their arrival. The following quote exemplifies that under such extreme circumstances, the offer of help is usually accepted with relief and gratitude. “But yes, but it is very nice. I am very happy when she [the volunteer] comes. And we don´t have any family here. No, we don´t understand anything. […] But then come[s] the woman, come[s] and say[s]: ‘I always help’. And we take her for all the appointments. And that is nice. Yes, I think that is very nice.” (Syrian woman, 44 years old)

Good relations evolve easily when volunteers start solving all those day-to-day problems, which are a big hurdle for the refugees. The volunteers know where to go shopping, how to find a doctor, and how to register in the language courses. Therefore, from the point of view of the supported refugees, volunteers seem to know better how to address their current vulnerabilities. Weighty problems that are more difficult to solve (if at all), such as work, education and the essential asylum procedure, usually come later. Volunteers’ initial and foremost practical help is difficult to frame in the context of agency. When asked about their primary motivation to work with refugees, most volunteers mentioned that humanitarian motivations clearly prevailed over political ambitions such as the empowerment of refugees. Most interviewees followed an almost intuitive charity approach, as the following quote illustrates: “I would say that originally there was a pure humanitarian motivation, […].” (German man, 55 years old). However, according to the critical literature on charity in social work, this approach can result in the victimisation or infantilisation of the recipients, thereby causing unintended effects such as feelings of shame and humiliation (see Dunn, 2004; Friese, 2010). In fact, when describing the arrival of refugees in her community, we heard one elderly lady among the volunteers talk about the “pity” she felt for the “poor boys in need”, literally confirming the critique of victimisation and infantilisation. Feeling pity for someone can also contribute to

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the disempowering of the other person and therefore can function as another vulnerant factor. For refugees, the attribution of the helpless victim subjectivity is ambivalent. The evolution of the humanitarian regime seeks to uphold the human rights of refugees and asylum seekers by framing their victimhood as pity and passivity rather than their agency: the protection of helpless innocent sufferers requires international rescue (Kmak, 2015). When a person is framed as helpless, however, this person’s agency is denied. Instead, the victim is expected to owe the rescuers gratitude and to be mild in his or her demands. Only when refugees appear as helpless and innocent victims does the consensus of unconditional help become established (Dunn, 2004, p. 238). In sharp contrast to the aggressive and misleading image of refugees as invaders (often described in the media as “incoming floods”) in the securitising discourse on migration, victim-images shape the humanitarian counter-discourse, which impacts high on volunteers’ logics of action (see Jünemann, 2017). Thus, to receive support it is necessary for a refugee to be perceived as a “true” victim. In his account of the first encounter with two volunteer supporters, a young man from Syria illustrated this ambivalence, describing how he and his fellows appropriated the victim label for their own means: “I needed many things. I also didn´t have time to think ‘who are they?’ or ‘why are they helping us?’ So, at the beginning we all in general, so not only me, we thought that they were sent from the government. To control us. And know if we are really from Syria, or if we are not refugees. And we said, ‘Okay, then we shouldn’t tell them everything’. And we acted, you know? So, one from us cried a little one day, because he wanted his family to come here as soon as possible. But they couldn’t do anything, could they? But that´s what we thought at the beginning, but it wasn´t like that.” (Syrian man, 23 years old)

This quote substantiates quite well that the victim-label is not necessarily a signifier for passivity, but that it can also be appropriated to exert agency: not understanding the situation and fearing to be spied upon, some of the newly arrived young men tried to gain control over the situation by acting like victims, strategically using their vulnerabilities. Refugees are extremely suspicious, and this attitude is largely informed by what they have experienced with their own government back home but also the various government agencies they have interacted with throughout their journey. Suspicion can play against them by making it hard to help them. Such behaviour might appear at first sight to be an expression of dishonesty. Instead, we hold that it must be qualified as an expression of agency in a situation shaped by distrust and inferiority. Due to the asymmetry concerning knowledge and understanding of the situation, the re-production of a

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subject position as a helpless victim, although dismal, is the better choice for the refugee. Upon arrival, the situation is shaped by the over-dependence of the refugee on the care of the volunteer with its underlying structure of power-asymmetries (see Schmid, 2019). This might explain why some refugees ascribe so much importance to their own personal status in the first meetings with their volunteers, emphasising their education or enhanced social background and sometimes even degrading less educated refugees or refugees from countries with a presumed lower status, with whom they do not want to be confused. Most volunteers disapprove of such non-solidary behaviour, as one woman made clear at the beginning of her cooperation with a family from Syria: “It started with a sewing class, where Syrians and Afghans meet and the father said that his daughter shouldn´t go, because there are people from Afghanistan there. I said, ‘you should forget about this kind of comment here […] the important thing is if the person is good, respects other people, everything else is irrelevant to me.’ And that is the only way this can work out and with me there is no place for this kind of discussions.” (German woman, 58 years old)

In fact, in many Arab refugee communities in Germany, people from Afghanistan are stereotyped as less educated, not well behaved, and more violent, explaining why some refugees from certain Arab countries might see themselves as more civilised. However, compliance with non-emancipatory subjectivities such as the hierarchisation of migrants can also be understood as a strategy to cope with feelings of shame and lack of status as a recipient of charity. Furthermore, it may be an expression of refugees’ agency through the assertion of their personhood in a social context that is sceptical, if not hostile, to their presence and in which their legal status is extremely precarious (Safouane, 2019). Additionally, it reproduces—and again appropriates—a utilitarian discourse on the deservingness of migrants. In the utilitarian discourse, which contrasts, but also sometimes complements the humanitarian migration-discourse described above, the dominant narrative suggests well-educated migrants, who deserve to be privileged with a residence permit, as a “solution for Germany’s aging society”. In this case, their subjectivity is reduced to the attribute of an “added economic value”. Against the background of the manifold testimonies on feelings of inferiority and shame in the difficult time just after arrival, it is noteworthy that most of the refugees we interviewed articulated overt and sincere gratitude when describing their interactions with volunteers. In exceptional situations of emergency, the universal concept of humanitarian aid seems to trump any other logic of action. Arrival after the experiences of a forced journey, which is often traumatic, is such

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an exceptional situation explaining why the refugees we interviewed perceived the situation as humiliating, but not the volunteers’ help. On the contrary, as the examples above illustrate, they welcomed it when volunteers assumed responsibility in a situation of vulnerability. One could almost talk about a voluntary and temporary delegation of agency.

7

From Arrival to Settlement: Re-Gaining Agency

The following settlement phase is not an extreme emergency situation anymore but evolves slowly—and despite ongoing hardships—towards normality. Therefore, the seemingly natural humanitarian role model of the first phase, occasionally comprehended in inadequate adult–child metaphors, becomes even more inappropriate in this phase. As time passes by, the relationship between refugees and their volunteers leaves more and more space for refugees to (re-) enforce agency. Two positive examples illustrate a successful transition to a more balanced cooperation in the settlement phase: “For instance, we have learnt the German language, and we have met many people, and that´s why we don´t need so much help [anymore], for instance we found this apartment, on our own. But when we signed the contract, she [the volunteer] took a look at it because in contracts there are always words or things that you have to keep in mind.” (Syrian woman, 30 years old)

The importance of (re-) inforcing one’s agency is once again expressed by a young Syrian man in the following words: “So, they don´t think that I need as much help as before, and I believe it too! Well, I still need them but not like before. That has changed. I became stronger, well, I am here in this country, and step by step I would say I am making progress, but I still have situations in which I say, ‘Okay I will call them [the volunteers].’” (Syrian man, 23 years old)

Yet, even trustful cooperation between refugees and their volunteer supporters is not devoid of conflict. These often emerge when refugees gain more and more capabilities that enable them to make their own choices, independently from the volunteers’ expectation. (Re-) gaining control over their lives includes (re-) enforcing the capacity to produce their own subjectivities, which might diverge from the perception of volunteers. Most important in this context are language

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skills, growing financial independence, and new friends among peer-groups including Germans. While refugees’ vulnerabilities decrease, refugees’ possibilities for agency increase. However, although asymmetry slowly loses intensity in the interactions with volunteers during settlement, it remains to be a vulnerant factor constraining refugees’ agency. Expectations change and so does the asymmetry, but it is still not clear who is expecting what from the other side. What remains is a certain relational imbalance and thus insecurities about the respective status. It is the volunteers who determine the time, place, and character of the encounters, which may be business-like or of a more private atmosphere. Since their work is voluntary, refugees have neither rights nor legal customs which they can draw upon in their relationship to the volunteer. Not knowing how long the support might last, refugees are often anxious to lose it, or fear being rejected when they confront their volunteer supporters with values, traditions, and political stances that might irritate them. It seems to be difficult for refugees to express expectations and desires, therefore, some refugees prefer not to talk about them and rather adapt to the presumed expectations of the volunteers (Stock, 2019). Adaptation is then an almost hidden expression of agency in a situation of uncertainty and ongoing dependence. According to our interviews, some volunteers emphasised their interest in mutual learning. However, there were also statements from volunteers, which confirm the refugees’ fear of being rejected if they do not assimilate to supposed “German values”. To bypass an open, perhaps embarrassing dispute, most refugees instead engage in avoidance-strategies such as not turning up, not answering messages or feigning agreement even if there is a disagreement. Avoidance strategies overshadow the cooperation upon arrival but may also appear in well-established and trustful relationships with volunteers in the later phase of settlement. A young Syrian man described to us how his feelings of shame hindered him to tell his two volunteer supporters why he would not follow their well-meaning advice: “‘Yes, you should go to [the big city nearby] and meet some new people and so on.’ And they can´t imagine that I, for example, only earn 300 euros a month to pay for all my monthly expenses. And that […] I couldn’t explain to them that I don´t have enough money. I found it somehow pitiful that I, a young man, have to say that I don´t have enough money and that I always have to say ‘yes ok, I will do it’ although I know I won’t do it.” (Syrian man, 23 years old)

Agency in this example is difficult to detect. The young man exerted agency by deciding himself what to do with his scarce money, but he did not want to discuss the issue with his volunteer supporters due to feelings of shame. The structural problem behind this failed communication is the fact that many volunteers cannot

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fully fathom the actual living conditions of refugees. In a private conversation, which took place outside the interviews, a young man from Afghanistan told us that volunteer supporters tend to overestimate the problems that refugees face in the reception country, not being able to see that these might be of minor importance to the refugees compared to much bigger concerns, such as relatives in their home country. This includes refugees’ financial problems; many refugees must pay back high debts to family members and friends who helped them finance their journey. Moreover, many are expected to send money home to support the family. Volunteers tend to ignore the wider social context of the refugee because it is situated in the home country and therefore remains invisible to the volunteer, who might be more concerned with processes of on-site settlement. Due to the asymmetry of their relationship, it is the volunteers who have the power to assess—and judge—the situation, making it difficult for refugees to express a divergent perspective, as the following and very open quote exemplifies: “Well I have experienced a time in my life when I needed money. And I just wanted to work illicitly. I am very direct. If I want something I say so. Even if it is not allowed. I asked him [the volunteer], ‘do you know someone who has illicit work for me?’ And he was very angry and asked ‘Why should you?’ and I said: ‘I would love to work officially and have a job, but not now.’ Well, my family is not in a good place right now and I need to support them. And if I find an official job right now it will take ages until I can save some money and send it to them. I need something now. And they still cannot understand it, that from time to time, well, I need some extra money or, well, do something illicit.” (Syrian man, 23 years old)

It is interesting, that (open or hidden) conflicts between refugees and their volunteer supporters often have to do with money, although the context may seem antithetic: “why do you waste your money on an expensive TV set rather than investing it in something more productive?” is a typical question that we hear volunteers repeatedly ask in their meetings. Yet, one can wonder whether volunteers really understand why refugees would engage in this spendthrift behaviour. It is possible that having control over one’s money is essential to restoring the self-esteem of someone who has lost everything through forced flight. The feeling of inclusion within the reception society may require the ability to decide for oneself and not necessarily the compliance with the expected economic behaviour. The decisive point is that regardless of whether a decision is “right” or “wrong”, it acts as a vehicle for regaining autonomy and dignity and, therefore, acquiring the ability to become included in the reception society as a conscious member with the same agency as everybody else. Volunteers often underestimate the relation between agency and settlement for people who have lost all means

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to a sustainable livelihood. Agency in this context means that refugees gain the ability to deal with conflicts on eye level, to draw their own conclusions and finally to make their own un-coerced decisions. Whereas the quotes above described difficult situations within functional relationships of mutual trust between refugees and volunteers, there are other cases where the expression of dissent is even more problematic. This is the case when refugees disapprove of the attitude or behaviour of volunteers who are disrespectful and push for assimilation. The following quote from a Syrian woman who was extremely unhappy with the invasive approach of her volunteer supporter and even said “he tried to control over my life”, illustrates the problem: “He kept telling me ‘this is Germany; you can have a boyfriend. You can make friendship with other men. You know that is ok here. […] I feel so angry that moment. […] Yeah, I know, I am a grown up, I know what I should do what I can do. Stop telling me that!”

Later, in the same interview and referring to the same volunteer in a different situation: “The Law is … above Allah! Your Allah.’ Yeah, and he went to the Jobcenter and told them that, I am gonna force my daughter to fast.” (Syrian woman, 34 years old)

Despite her anger, she never openly criticised him “because he helped me at the first place, so I can’t be that rude to tell him ‘go, I don’t want your help anymore’” (Syrian woman, 34 years old). Instead, she waited for a face-saving occasion to end the cooperation without ever telling him about her feelings of resentment. In this unfortunate, and according to our interviews untypical case of an invasive volunteer, the interaction failed in the sense that it resulted in a disempowering situation for the Syrian woman. For her, even though she was conscious of her vulnerabilities as a newcomer, retreating from the relationship was the only viable expression of agency in a situation, where the subjectivity of an inferior recipient of paternalism was imposed on her. Seen from our theoretical perspective, adaptation, avoidance, and retreat are expressions of agency within a still asymmetrical relationship and ongoing insecurities about the relational status. What complicates the situation is the fact that the observed modes of indirect conflict management also have to do with cultural codes. What Germans might consider as an open discussion, may be considered as impolite and inappropriate in an Arab country or in Afghanistan. Since most of

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the volunteers we interviewed were older than the refugees they assist, the cultural factor weights even higher. In many cultures, respect for the elder generation is a value deeply ingrained that is usually expressed through a stronger hierarchisation of social relations. Thus, there can be more than one reason why refugees rarely criticise and seldom express their own perspectives, desires, and expectations. Volunteers who are used to a Western culture of overt conflict management (also across generations), all too often expect direct feedback, overlooking the diverse cultural codes as much as the underlying problem of restricted agency due to ongoing vulnerabilities in an asymmetrical relationship. To gain a deeper understanding and to foster refugees’ agency, volunteers need to listen carefully and use their capabilities to empathise, as the following quote from a volunteer illustrates: “[with] parenting issues, there I had the feeling that they [the refugees] thought, ‘it is none of her business to interfere in those matters’ and then the mothers distanced themselves. After some time, everything was ok again, it didn´t take long. Nobody spoke about it openly, it was always up to me to interpret their behaviour.” (German woman, 55 years old)

This volunteer had to learn how to “read between the lines”, or—in this case—to listen to the unspoken. Therefore, empathy is not only an emotion but includes a cognitive dimension, necessary to reflect the impact of diverse cultural backgrounds as well as the very specific political and economic conditions that shape refugees’ life in the reception country, but also and perhaps foremost in the home country. This, however, holds not true in cases when volunteers try to assist highly traumatised.6

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Empathy cannot replace professional knowledge on the ways in which trauma can affect a person’s behaviour and ability to face, not only complex and stressful situations, but also everyday tasks. Volunteers often do not understand the actions, and sometimes the lack of action, of the person they are helping and consequently react with frustration. This frustration is a relevant factor why volunteers, even in moderately demanding cases, might feel increasingly overstrained, leading them to quit. The specific problem of traumatised people is not in the focus of this article, as it did not appear in the interviews. However, given the fact that many refugees are traumatised through their experiences at home and/ or during their forced journey, we consider it important to at least mention the risks of interactions between unprofessional volunteer supporters and traumatised refugees. We hold that volunteers need more information to be able to identify trauma and professional training to learn how to cope with it.

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Conclusion and Recommendations

The aim of this study was to evaluate the interactions between refugees and their volunteer supporters, looking through the theoretical lens of a combined agency and vulnerability approach. We hold, that both concepts represent two sides of the same coin: On the one hand, refugee’s vulnerability always depends on those vulnerant factors that restrain them from exercising agency. On the other hand, agency is often a direct response to cope with vulnerabilities or, more precisely, an attempt to overcome the underlying vulnerant factors. Context matters and in the very specific social context of the relationship between refugees and their volunteer supporters we identified two main vulnerant factors, namely asymmetry and status, which hinder refugees from fully expressing their agency. These, however, change over time so that we differentiated in our analysis between an initial phase of arrival, succeeded by the longer and open-ended phase of settlement. Most refugees remember their arrival as a dreadful time, shaped by feelings of total disorientation and utmost helplessness. It is then when refugees first meet the volunteers, strangers who offer help. Asymmetries between both sides are extremely high in the beginning, since the refugees, who usually do not speak the language, cannot even solve practical problems of everyday life without support. On top, some of the volunteers start their engagement with a problematic charity approach. By doing so they unconsciously ascribe the inferior status of a passive victim to the refugee, thereby shifting the already asymmetric relationship further to the refugees’ disadvantage. Against this background it was surprising that most of the refugees we interviewed perceived only the situation of arrival as humiliating, but not the volunteers’ help. On the contrary they welcomed how volunteers assumed responsibility for them in an exceptional emergency situation and therefore almost delegated agency to them—temporarily. In difference to that, the settlement phase is not perceived as an emergency situation anymore, despite all hardships. Yet it appeared to be more problematic with regard to the relationship between refugees and volunteers. When refugees start to regain control over their life and strive for the (re-) enforcement of agency, it has an impact on the relationship with the volunteers. Asymmetries gradually decrease, with regard to some aspects they can even reverse when, for example, refugees start helping their (often older) volunteers. Yet they do not vanish. The same holds true for the blurry status relations. As a result of growing proximity, the relationship is often equated with “family” or “friendship”, but due to different cultural codes (does “family” or “friendship” mean the same in Syria and Germany?) insecurities about appropriate behaviour remain and it is not at all clear what one can expect from the other side. Especially the refugees find it difficult

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to assess how sustainable the relationship might be. As long as they depend on support, the power to decide over the duration and the intensity of the relationship is one-sidedly in favour of the volunteer. Therefore, even in the settlement phase, asymmetry and status are to be evaluated as vulnerant factors that hinder refugees’ from fully expressing agency. We observed that refugees developed, vis a vis their volunteers, strategies of avoidance, adaptation, and even retreat to overcome the vulnerabilities caused by asymmetry and blurry status relations. Volunteers who are often unaware of these subliminal problems find it difficult to ‘read between the lines’ and to ‘listen to the unspoken’, hindering them to fully understand the situation of the refugees and to adapt their support accordingly. Therefore, and in light of our findings we want to conclude with some suggestions on how volunteers could better understand—and foster—refugees’ agency. Volunteers should become more conscious about asymmetry and status in their relationship with the refugees they want to support. Both are vulnerant factors that cannot easily be changed but being aware of the problems they cause is already helpful to address them. In consequence, refugees should not be perceived (and labelled) as victims. Although this perception might be grounded in a well-intended charity approach, it ascribes an inferior status to the refugee, associated with helplessness and passivity. Instead, vulnerability should be seen as a possibility for refugees to cope with the underlying vulnerant factors and thus as a chance to (re-) enforce agency. Volunteers can accompany and encourage this process. To better understand refugees’ hidden expressions of agency, empathy is needed. This includes a cognitive dimension to be able to consider the impact of diverse cultural backgrounds as well as the very specific political and economic conditions that shape refugees’ lives in the reception country, but also and perhaps foremost in the home country. All this is easier said than done. To help volunteers improve their performance, social work organisations and established NGOs already offer special training. These, however, do not necessarily reach volunteers who, as many of our interviewees, work on a private level and without an institutionalised network. We believe that, against the background of the overall positive response from the refugees we interviewed, such training—although helpful—is not necessary, because over time both sides learn to cope with the problems described above. This however holds not true for the very special cases when volunteers try to assist highly traumatised refugees. In these cases, professional help is essential, so that volunteers should at least get access to knowledge on how to identify a highly traumatised person and where to organise professional help for her or him.

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Therefore, our last recommendation is to build networks and reach out for the many volunteers especially outside the urban spaces who work in predominantly private environments to share knowledge and to offer help to the helpers.

References Bank, A., Fröhlich, C., & Schneiker, A. (2017). The political dynamics of human mobility: Migration out of, as and into violence. Global Policy, 8(1), 12–18. https://doi.org/10.1111/ 1758-5899.12384 Dunn, J. L. (2004). The politics of empathy: Social movements and victim repertoires. Sociological Focus, 37(3), 225–250. https://doi.org/10.1080/00380237.2004.10571244 Enfield, N. J. (2011). “Sources of asymmetry in human interaction: Enchrony, status, knowledge and agency.” In T. Stivers, L. Mondada, & J. Steensig(Eds.), The Morality of Knowledge in Conversation (p. 285–312). Cambridge. Federal Office for Migration and Refugees. (2016). The federal office for migration and refugees in figures 2015: Asylum, migration and integration. [In German] Federal Office for Migration and Refugees. Federal Office for Migration and Refugees. (2017). The federal office for migration and refugees in figures 2016: Asylum, migration and integration. [In German] Federal Office for Migration and Refugees. Fleischmann, L. (2019). Making volunteering with refugees governable: The contested role of ‘civil society’ in the German welcome culture. Social Inclusion, 7(2), 64–73. http://dx. doi.org/https://doi.org/10.17645/si.v7i2.1979. Focus Online. (2019). For safe harbours: Thousends expected in Seebrücke-protests [In German] Focus Online, July 7. https://www.focus.de/regional/berlin/demonstrationen-fuersichere-haefen-tausende-zu-seebruecke-demos-erwartet_id_10901734.html. Friese, H. (2010). The limits of hospitality: Political philosophy, undocumented migration and the local arena. European Journal of Social Theory, 13(3), 323–341. https://doi.org/ 10.1177/1368431010371755 Galtung, J. (1969). Violence, peace, and peace research. Journal of Peace Research, 6(3), 167–191. https://www.jstor.org/stable/422690. Hörisch, F. (2018). Comparison of asylum politics among German States – A fuzzy-set qualitative comparative analysis. [In German] Zeitschrift für Vergleichende Politikwissenschaft, 12(4), 783–803. https://doi:https://doi.org/10.1007/s12286-018-0399-4. Jünemann, A. (2017). “Emotions matter. Fear and (non-)empathy in German reactions to the ‘refugee crisis’”. In Jünemann, A., Fromm, N., & Scherer, N. (Eds.), Fortress Europe? Challenges and failures of migration and asylum policies (pp. 167–184). VS-Springer. Karakayali, S. (2017). “Infra-Politik der Wilkommensgesellschaft. Forschungsjournal Soziale Bewegung, 30(3), 16–24. Kmak, M. (2015). Between citizen and bogus asylum seeker: Management of migration in the EU through the technology of morality. Social Identities, 21(4), 395–409. https://doi. org/10.1080/13504630.2015.1071703 Safouane, H., Jünemann, A., & Göttsche, S. (2020). Migrants’ agency: A re-articulation beyond emancipation and resistance, new political science. https://doi.org/10.1080/073

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93148.2020.1761736 To link to this article: https://doi.org/10.1080/07393148.2020.176 1736 Safouane, H. (2019). Stories of border crossers: A critical inquiry into forced migrants‘ journey narratives to the European union. Springer VS. Schmid, S. (2019). Taking care of the other: Visions of a caring integration in female refugee support work. Social Inclusion, 7(2), 118–127. https://doi:https://doi.org/10.17645/ si.v7i2.1964. Schmitt, C. (2019). „Agency und Vulnerabilität. Ein relationaler Zugang zu Lebenswelten geflüchteter Menschen“ Soziale Arbeit. Zeitschrift Für Soziale Und Sozialverwandte Gebiete, 68(8), 282–288. Stock, I. (2019). Buddy schemes between refugees and volunteers in Germany: Transformative potential in an unequal relationship. Social Inclusion, 7(2), 128–138. https://doi:https:// doi.org/10.17645/si.v7i2.2041. Van Hear, N., Bakewell, O., Long, K. (2017). Push-pull plus’. Reconsidering the drivers of migration. Journal of Ethnic and Migration Studies, 44(6), 927–944. https://doi:https:// doi.org/10.1080/1369183X.2017.1384135. Yuval-Davis, N. (2011). The politics of belonging. SAGE.

Part V Epilogue

A Case for Dark Horse Thinking? Re-Imagining Group Asylum Hamza Safouane, Nicolas Fromm and Sabith Khan

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Introduction

This chapter is premised on the observation that the refugee regime, as an ensemble of global norms and frameworks for the provision of international protection and the prevention of refugee crises, has been dysfunctional for a prolonged period (Loescher, 1994). In essence, asylum seekers encounter considerable difficulties in physically reaching an area that is removed from the danger that they are fleeing. Even when they do reach a safe haven, new vulnerabilities can, and often do, emerge. In this text, we envision a ‘utopian’ solution to the problem of refugee protection based on a new take on group-asylum allocation. The UNHCR (1979) defines group-based determination of the refugee status as the practice of giving refuge to a whole group of asylum seekers on the sole basis that they pertain to said group (prima facie). This practice is usually put in H. Safouane (B) Osnabrück University, Institute for Migration Research and Intercultural Studies (IMIS), Osnabrück, Germany E-Mail: [email protected] N. Fromm Institute for International Politics, Helmut Schmidt University, University of the Federal Armed Forces Hamburg, Hamburg, Germany E-Mail: [email protected] S. Khan School of Management, Master of Public Policy & Administration (MPPA), California Lutheran University, Thousand Oaks, CA, USA E-Mail: [email protected] © The Author(s), under exclusive license to Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2021 N. Fromm et al. (eds.), Power in Vulnerability, Studien zur Migrations- und Integrationspolitik, https://doi.org/10.1007/978-3-658-34052-0_12

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place when the influx of asylum seekers from a certain group is so overwhelming for the reception country (or countries) that it cannot be dealt with on an individual basis as is usually the case. So, group asylum already exists and is generally employed in situations of emergency where protection has to be provided swiftly given the large number of asylum seekers. In such situations, the lengthier caseby-case refugee status determination is bypassed. Consequently, in this chapter we do not claim to invent group asylum but rather propose its re-imagining, namely, a systematic deployment of group-based granting of the refugee status in which nation-states would have no say. While prima facie group-based provision of refuge is self-evident if a host country’s applications processing capabilities are overwhelmed, we however subscribe to the critique made by refugee law specialist Jean-François Durieux (2008) about the individualisation of the Refugee Status Determination (RSD).1 Durieux explains that based on the definition of the refugee in the first article of the Refugee Convention, persecution necessarily concerns a whole group. Indeed, if for instance a person is persecuted in her country because she belongs to a specific ethnic group, then it is logical that the other members of that group also fall under the same threat. Otherwise, the ground for persecution is not ethnicity. In other words, we assert that the provision of protection generally applies to a group, regardless of its size. It is the reason for escape that matters here and, therefore, we argue that by virtue of the Refugee Convention, group-based asylum must be the norm in the provision of protection rather than individual processing of asylum applications. Therefore, the case-bycase refugee status determination is an erroneous application of the first article of the Convention (Durieux, 2008). It follows that our utopian proposal, and so our discussion in this chapter, resides not in the generalisation of group-based asylum but in the bypassing of countries in giving refuge. In considering a systematised group-asylum allocation that suspends reception countries’ sovereign control over their borders with respect to asylum claims, we clearly adopt a utopian outlook on the refugee regime. We engage in a logical and grounded assessment of the current refugee regime and, based on identified trends that we discuss in subsequent sections, we argue that in the future, the space for humanitarian protection, especially in the Global North,2 would shrink to such unsustainable levels that seeking refuge would not only be extremely difficult as it presently is, but virtually impossible. Our proposal is considerably complicated 1

This procedure is defined by the UNHCR as “the legal or administrative process by which governments or UNHCR determine whether a person seeking international protection is considered a refugee under international, regional or national law.”. 2 Christiane Fröhlich (2018) argues that this is currently also the case in key Middle East countries as well.

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by the reality of the ubiquitous nation-state framework as the organising basis of our societies. One of the most significant complications is that countries would not be able to conduct the vetting of asylum applicants. This framework is centred around the principle of sovereignty over national territory and non-interference. In other words, the essence of the current refugee regime is that countries allow it to exist. However, we join the argument already made by Kate Coddington according to which “conditions for asylum seekers in signatory countries are increasingly paralleling those in non-signatory countries” (2018, S. 1). In the precise case of a systematised group-asylum allocation, countries’ border and national security administrations would have to give way to a supranational body endowed with the prerogative of upholding and conducting the international duty to protect forcibly displaced populations. So, by withdrawing the process of granting asylum from countries’ adherence and discretion, we aim to both deconstruct the nationstate system that governs the refugee regime and propose an alternative system that is freed from considerations of state sovereignty. Yet, the concrete obstacles to imagining an alternative refugee regime must not hinder utopian thinking and the wish to change things that are dysfunctional. Utopian thinking, by definition, momentarily liberates itself from the restrictions imposed by reality in order to better critique it and set the change in motion. Here, we subscribe to David Harvey’s rationale of utopian thinking and writing to spur progressive change: it is not our ambition “to provide a blueprint for some future but to hold up for inspection the ridiculous waste and foolishness of [our] times, to insist that things could and must be better” (2000, p. 281). So, this chapter will not feature a full-fledged and readily operational solution for a new refugee regime, but rather point to a problem and envision a possible solution. The numerous technical and practical objections that our prototype solution would undoubtedly elicit are not the focus here, at least at the moment, for they would inhibit utopian thinking. The focus lies on the urgent question of what version of the refugee regime will be better for providing protection to forcibly displaced populations. From that reflection onwards, we can re-think the current regime by addressing the practical issues that arise. This thought experiment follows the process for designing a dark horse prototype, which we borrowed from the wide catalogue of Design Thinking methods. Our dark horse prototype is the process of a systematic, and therefore “predictable and principled” (Crisp, 2003b), granting of group asylum that bypasses reception countries’ decision and framework. Through our solution-prototype, we would like to intervene in the conversation on migration by highlighting the genuine preoccupation for (forced) migrants’ vulnerabilities, away from the securitisation of migration and the subsequent outsourcing and offshoring of asylum processing.

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Indeed, most refugees and people seeking asylum are consistently made vulnerable by a protracted state of displacement in camps and detention centres. This is also the case of many of those residing in certain urban areas where they are deprived of a legal status and, therefore, legitimate access to employment, health services, and education. Lately, these vulnerabilities have been further exposed as well as exacerbated with the onset of the Coronavirus pandemic. We propose in this paper to explore a possible paradigm change in the provision of international protection that radically departs from current asylum practices. We argue that a re-imagining of group asylum, which is usually applied by the United Nations High Commissioner for Refugees (UNHCR) in cases of large movement of people seeking asylum from one or a group of countries, could constitute a path to a possible solution. More precisely, we discuss an alternative refugee regime in which group asylum would be granted systematically by a UNHCR-like body that circumvents nation-states’ discretionary power over entrance to their national territory. In practice, this could mean that for instance all the Rohingyas whose lives are threatened by the Myanmar government’s racist policies would automatically receive an internationally-recognised refugee status—and so the corresponding travel document—without going through the RSD. This would enable them to access the global protection space with no infringement of their mobility preferences, not only to enable survival (mere physical safety), but also into a space of their choosing where they can culturally and economically thrive. Instead, the majority of Rohingyas living in Bangladesh are crammed in government-run refugee camps in the city of Cox’s Bazar. As we will show, group-based granting of the refugee status beyond nation-states’ involvement could help revert the global trend of narrowing the protection space, provide a safe haven in a faster and more systematic way and, last but not least, enable stable futures. In the first section of this chapter, we will discuss the impetus for utopian writing and thinking as well as define the problems that we identified in the refugee regime. In the following section, we will briefly explain the principles of the dark horse prototype and how they constitute an interesting instrument to develop action-oriented solutions. Finally, we will conclude formulating our dark horse prototype—systematic group asylum—and discuss how it addresses the problems that we listed.

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The Timeliness for Paradigm Change in the Refugee Regime

Our purpose is to explore and discuss the possibility of a paradigm change in the way international protection is granted to forced migrants. To this end, we engage in utopian thinking whereby we envision a prototype solution in which the granting of group asylum becomes systematised as well as unrestrained by nation-states’ sovereign prerogative of deciding who receives asylum in its territory. Before anything else, utopian thinking requires that we justify the reason why such a change is necessary now. A first justification emerges by simply looking at some statistics: After having declined throughout the 1990s until 2005, the global refugee population has been steeply increasing since 2012, reaching today its highest level since the end of World War II (Crisp, 2003a; The World Bank, 2019). This increase reflects primarily the forced displacement of Syrians, Venezuelans, Afghans, South Sudanese, and Myanmar’s Rohingyas. In most cases, these displacements have already led to protracted refugee situations3 where opportunities for economic reconstruction after flight are extremely limited. The large majority of displaced people (79.5 million), including across borders (33.8 million), are in areas where they experience considerable precariousness and are unable to rebuild their lives. In these situations, and given the increasing needs for international protection, the durable solutions that are considered in the current refugee regime (resettlement to a third country, local integration, or voluntary repatriation) remain largely inapplicable. Second, while this upward trend of the number of displaced people already makes the reform of the refugee regime terribly pressing, we also find that the Coronavirus pandemic accentuates the need for its complete overhaul even more. The logics of securitisation and externalisation that have characterised the overall migration governance since at least the early 2000s and that have directly contributed to reducing the protection space available to refugees and people seeking asylum have found, since the spread of the virus, a renewed legitimacy. The current pandemic risks to further entrench policy practices of mobility restrictions or immobilisation of forcibly displaced populations and, therefore, embed them in the refugee regime and practices of international protection. For this reason, this global health situation creates an urgency for steering migration discourse towards considering an alternative refugee regime. 3

The UNHCR defines a protracted refugee situation as a situation “in which 25,000 or more refugees from the same nationality have been exiled for five consecutive years or more in a given host country.”

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In the immediate context of the pandemic, unauthorised migration has only momentarily slowed down but still leads to many fatalities. The number of people seeking asylum, and migrants in general, may have decreased on average as a result of the measures to halt the pandemic (confinement and border closures), but migratory movements have not stopped altogether. The UNHCR reported that between January and June 2020, the number of migrants arriving to Italy by sea increased by 150% compared to last year (UNHCR, 2020b).4 Indeed, between April 5 and 11, 2020, more than 20 smuggling boats left Libya to set course for Europe; two of them were rescued by the Alan Kurdi vessel of the German NGO Sea-Eye e.V. and around 500 people were sent back to Libya by coast guards where they risk detention and abuse (Alarmphone, 2020). On the night of June 4–5, 2020, a smuggling boat departing from the city of Sfax and carrying several dozen Sub-Saharan migrants, many of whom fleeing Libya, sank off the Tunisian coast while heading for Italy. The death toll reached 61 people as bodies were being recovered in the following days (Tondo, 2020). These episodes reflect both pre-existing practices of forced immobilisation, non-assistance to unauthorised migrants in danger, and violent migration management, but this time in the name of health. If the lockdown is aimed at reducing mobility in order to curb the spread of infections, many forced migrants were also immobilised but outside of the comfort and safety of a home. The message “stay home and stay safe” given to national populations to help contain the spread of the virus is hard to follow for those who fled from home and often find themselves trapped outside of the protection space, in overcrowded camps or in third countries that provide little safety. In this regard, it is important to also heed the dire living conditions of immobilised refugees who are stuck in often overcrowded camps such as those in the “hotspots”. The burning in September 2020 of Moria on the Island of Lesbos, a hotspot camp with a total reception capacity of 3000 (Mentzelopoulou & Luyten, 2018) refugees but that accommodated about 13,000 (BBC, 2020), is a case in point. As part of the health measures adopted to contain the pandemic, many countries decided to close their harbours to rescued migrants in the Mediterranean, suspend asylum processing, or the possibility to lodge an asylum request, which means that many migrants are obliged to wait in congested places with little to no possibility for physical distancing or to implement efficient hygiene measures. In the context of the ongoing pandemic, the Mediterranean Sea, refugee camps, and many third countries are spaces of violence and abuse that prevent migrants, including potential asylum seekers, from reaching the protection space.

4

This number is still far below the levels reached in 2017.

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The practice of non-assistance and reluctance to protect already in effect before the virus outbreak is further standardised. Overall, the Coronavirus has overshadowed the relentless vulnerability of forced migrants whose mobility and, thus, access to the protection space is additionally restrained. Many aspects of this health hazard can explain the momentary invisibility of the plight of forced and irregular migrants: The immediate urgency of the virus, the helplessness of many governments to contain its spread, the radical and sudden changes in settled lifestyles that it imposed, and, of course, the conjuring in the collective imaginary of the ravages caused by previous epidemics. Amidst this crisis however, we are witnessing the manifestation of a persistent issue: The global norms and frameworks set up for the international provision of protection to refugees are increasingly unfit to fulfil their purpose. While the pandemic will eventually recede, migrants and the yearning for mobility out of danger will not disappear, nor will the necessity and urgency of international protection that we discussed earlier. It is important to insist that the vulnerability of forced migrants who are packed in harrowing conditions in refugee camps, such as in Moria in Greece or Kutupalong in Bangladesh, or are blocked at borders, such as the Southern U.S, border where they are exposed to cartels and all sorts of abuse, did not emerge because of the virus. They were already part of an array of asylum practices that precede the pandemic but that risk becoming the benchmark of international protection.

3

The Trifecta of Protection Space Restrictions

During and in the aftermath of World War II, the suffering endured by forcibly displaced migrants constituted a compelling motive for the adoption of the Universal Declaration of Human Rights (UDHR) in 1948, the Convention Relating to the Status of Refugees in 1951 as well as more regional frameworks such as the Organisation of African Unity Refugee Convention in 1969 or the Cartagena Declaration on Refugees in 1984 (Crisp, 2019). Yet the logic and mindset behind these normative instruments for international protection has been withering for decades. This is made obvious by the multiplication of refugee emergency situations that have yet to be solved by the international community (Crisp, 2018, 2019). Today, 80% of forcibly displaced populations live precariously in areas and countries that provide little to no means that guarantee their livelihood (UNHCR, 2020c). Most refugees are made vulnerable by a protracted state of displacement in camps, detention centres, or urban areas where they are deprived of a legal status. We contend that these figures reflect the principal logic underpinning the

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shortcoming of the contemporary refugee regime, namely, the understanding that refugees’ mobility is a problem to be contained to areas near countries that produce displacement rather than the solution. Therefore, the construction of the refugee regime has established various practices of immobilisation that seek to prevent or limit mobility rather than enable and encourage it. This is particularly evident in the design by States and the UNHCR of the three classical solutions to displacement (UNHCR, 2020a): Voluntary repatriation to the country of origin, local integration in the host country, resettlement from an asylum to a third country. Each one of these solutions is either deeply problematic (Fiddian-Qasmiyyeh et al., 2014, S. 475–537), concerns an insignificant fraction of the displaced population, or remain inaccessible. In other words, forcibly displaced populations face major difficulties in accessing the protection space. In this section, we will discuss what we identified as the factors that lead to this situation. These factors are interrelated but concern three different facets of the shortcomings in the international provision of protection: 1. Discursive through an alarmist rhetoric delegitimising refugees and people seeking asylum. 2. Geopolitical-economic through the establishment of a bilateral and multilateral compact model of containing the mobility of migrants. 3. Legal-normative through the design of protection instruments that lack a constraining power over nation-states. Our proposed dark horse prototype is a tentative answer to this trifecta of protection space restrictions. 1. Alarmist Rhetoric Delegitimising People Seeking Asylum In the migration discourse, the “flow” of migrants is an oft-used underlying motif that supplies representations as well as policies with a strong thematic identity. With countless media headlines, political speeches and declarations that characterise migrants as a flow, wave or, sometimes more dramatically, as a flood, migration becomes through this “stream leitmotiv” symbolically associated with the outpouring or, what has been called elsewhere, the “water metaphor” (Kainz, 2016; Zeher Abid et al., 2017). These representations are not inherently detrimental to migrants’ mobility, their safety or well-being. They have become such normalised talking points in the public imaginary that they do not necessarily imply hostility towards migrants. Nevertheless, they can constitute the ideological genealogy to migration management practices and border regimes that make vulnerable these migrants (see also Simon in

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this volume). Indeed, when shifting from discourse to practice, the representation of migratory movements by the flow narrative can prompt restrictive, and in many cases, inhuman objectives in the design of migration management policies. This is because representations and perceptions of migrations determine the intelligibility of migrants and, therefore, constitute an important building block of the language and the design of a policy. In other words, representing migrants in a certain way implies how they can be governed. In its benign forms, a migration policy can stop, re-direct, or filter a “wave” of migrants: The externalisation of migration management bears clear traces of the water metaphor because it aims to contain an incoming wave of migrants “upstream,” that is, in regions of origin and transit (European Commission, 2015). In its more inhuman form, a migration policy can be designed to stop waves of immigrants by practicing cruelty as a deterrent. Such was the case of family separation at the US-Mexico border, a policy that was implemented ferociously from spring 2018 onwards by then US President Donald Trump. This policy, which was characterised as torture (Amnesty International, Press Release, 2018; Physicians for Human Rights, 2020), claimed that separating children from their parents at the US-Mexico border, would deter onward immigration to the USA. The migration flow narrative is also remarkably symmetrical because the quality of borders is gauged according to its degree of porosity, that is, its impermeability against immigrants. A border can be considered too porous because of a lax visa policy, which in return, can be seen as a vector of domestic insecurity. Overall, this water metaphor is a system of representation that can be detrimental to migrants’ capacity for mobility away of danger because of its ontological implications. The wave suggests a shapeless mass that is devoid of a proper consciousness. Without an inherent purpose, its chaotic movements are decided by exogenous factors. Conversely, waves are also factors of erosion and, so, uncontrolled immigration can be understood as undermining the structural integrity of a receiving society, such as its welfare system, its identity and cultural cohesion. In the case of forced migrants, this alarmist view can be particularly insidious because it overturns vulnerabilities by implying that it is the receiving society, especially in the Global North, that needs to be protected. Through these representations, migrants not only lose their humanity because their capacity for subjectivity, and so agency, is not assumed, but they also lose their contextuality because they are strictly defined through their mobility patterns into the receiving context. While there is already reason for concern regarding the dehumanisation of migrants, the water narrative “spills over” refugees and people seeking asylum,

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that is, those whose international status instructs countries that their protection is the only policy that prevails (Zeher Abid et al., 2017). With the proliferation of the crisis discourse that generally characterises South-North movement of migrants (refugee/migration crisis, humanitarian crisis, EU crisis), flows of refugees and asylum seekers are construed as an exceptional occurrence that necessitates new governance structures. Consequently, the outpouring of forced migrants, alarmingly depicted as the refugee crisis in 2015, calls for exceptional measures of containment that suspend established regulations and procedures in order to protect the alleged vulnerability of receiving countries. The potential protection space of these countries redefined as vulnerable space that is not only unsuited to provide shelter—this ground is reinforced by the Coronavirus pandemic—but that also needs to be protected against those who claim they need protection (“bogus asylum seekers”). During the crisis, the momentary return of internal borders and travel restrictions inside the Schengen area, the construction of fences between several European countries, the push-backs of migrants to third countries where they could risk human rights abuse constitute swift reactionary decisions to a perceived security threat. This is a manifest example of discourse leading to the legal and spatial re-configuration of a whole area. In addition, a semantic shift takes places, going from the de-individualised outpouring to a mass that can be deliberately more hostile. For instance, during the massive incoming of people seeking asylum in 2015, then British Prime Minister David Cameron described incoming asylum seekers as “a swarm of people coming across the Mediterranean,” thereby further formalising the blatant beastialisation of migrants. What is also remarkable here is the attribution of people fleeing war and persecuting immoral intentions. Refugees and asylum seekers, or rather some of them, can be suspected of wanting to harm the receiving society. In this respect, Magdalena Kmak showed how the migration of EU citizens within the Schengen area, often expected to be skilled, is perceived as a moral and rational behaviour while that of asylum seekers, whose freedom of movement, in principle, no less encouraged if we refer to international treaties, is deemed immoral (Kmak, 2015). It follows that those migrants who may be in need of international protection5 may be turned down as a result of these categories that distinguish between “highly skilled” and the “superfluous” migrants who need safety from violence and persecution 5

Migrants, even when unauthorised, have the right to claim asylum according under Article 14 of the Universal Declaration of Human Rights. Consequently, “illegal” migrants cannot be sent back to where they came from if they never had the possibility to officially lodge an asylum request.

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(Landau, 2018, S. 176). Even more so, incoming migrants who could potentially be asylum seekers, that is, fleeing due to well-founded fear of persecution as stated by the Refugee Convention, are too often coded as invaders with subsequently deliberate hostile intention. So was the anti-migration rhetoric used by the White House against the late 2018 Central American Caravan that was composed mostly of nationals from Honduras, Guatemala, and El Salvador fleeing poverty but also endemic drug war (Zimmer, 2019). This differentiation is illustrated by the “fractioning” of the refugee label into morally hierarchised subcategories—genuine versus bogus asylum seeker or refugee—which calls for different policy approaches to the provision of protection rather than a systematic and unconditional opening of the protection space (Kmak, 2015; Mezzadra & Neilson, 2013; Schmidtke, 2012). Finally, the insecurity panics triggered by alarmist discourses of migration are also carried in visual representations. Besides issuing a quarterly Risk Analysis where risk is systematically attributed to undocumented migrants, the EU’s border agency Frontex puts an even more spectacular and antagonistic spin to the wave metaphor. Political geographers van Houtum and Bueno Lacy (2020) have convincingly shown how Frontex creates and uses particularly fearmongering cartographies of migration across the Mediterranean Sea into Europe by resorting a general composition of maps (arrows, colour chart, legend) that clearly evokes an organised and belligerent, through no less indistinct and nameless, invasion of intruding migrants. The military conceptual metaphor of “Fortress Europe” echoes the fear of migrant threat. Discourse, in both talk and picture, enacts social life. Like a muscle, it has an inherent performative quality through the meanings that it constitutes. Following our review of the layers on the wave metaphor, we notice the performativity of alarmist discourses regarding migration governance practices: Representations produce an array of political and bureaucratic categories that imply specific policies. The performativity of discourse even (re)produces new geographies. As a matter of fact, the dynamic of militarisation of borderscapes6 such as the US-Mexican border, the Mediterranean Sea (Garelli & Tazzioli, 2018; Tazzioli, 2015), or the Indian Ocean but also of border enforcement and migration management in general, are reflections of discourses that are designed to justify containment of migrants and hinder access to right. The right of asylum that is upheld inside the jurisdiction of countries adhering to

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Defined here as „the array of regulations, practices and discourses that compose the apparatus of mobility control and selection at the borders” (Safouane, 2019, S. 159).

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the clauses of the Refugee Convention—what we call the protection space— is no longer accessible to asylum seekers. The alarmist discourse participates in the spatial reconfiguration of geographies and borders such that existing instruments of international protection are bypassed. In the following section, we will discuss another facet of the reduction of protection space: the multiplication of inter-state agreements that restrict mobility into spaces that provide physical safety but no guarantee to a sustainable livelihood. 2. The Bilateral and Multilateral Compact Model of Migrant Containment Countries in the Global North are increasingly reluctant to open their space for people seeking asylum. Many migrant sending and transiting countries such as in in the Middle East and Africa enter into agreements with them to take over the task of containing transiting and/or departing migrants, including forcibly displaced people, in exchange of a “rent.” As discussed in the previous section, the “migration crisis” framing demands deploying several tools to control it and, in this regard, bilateral and multilateral migration compacts fulfil a key role. For example, as part of its externalisation of migration policy and fuelled in the discourse by “doomsday scenarios” of an African invasion (de Haas, 2008; Smith, 2018), the 2015 EU Emergency Trust Fund for Africa (EUTF) constitutes a prominent case of EU money being allocated to migrant sending and transiting countries through various development projects and initiatives, here 26 out of 54 African countries.7 The EUTF is designed as an instrument for development aid that hinges upon the “root cause” approach which posits that poverty and the lack of local economic opportunities leads to migration in search for work. A critical discussion of this approach regarding its simplistic representation of migration decision-making processes as well as transnational migratory dynamics is beyond the scope of this chapter. But it suffices to consider here that the EUTF concerns mostly African countries situated along migratory routes that lead to the Mediterranean Sea but few to none in the central and southern parts of the continent. This actually raises doubts about the developmental ambitions of the whole project (Landau, 2018). As a matter of fact, in 2016 Sudanese President Omar el-Beshir, who was indicted as a war criminal in 2009 by the International Criminal Court, received up to e2 7 The EUTF amounts to e5 billion, of which about e4.4 billion comes from the European Development Fund and other EU financial instruments, and a contribution of e620 million from EU Member States plus Switzerland and Norway. For more information on the financials of the EUTF and distribution of recourses across partnering African countries, see: ec.europa.eu/trustfundforafrica/content/trust-fund-financials_en.

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billion through the EUTF as military aid to stop migration (Landau, 2018; Malik, 2016). The objective of containing non-refugee migrants through these types of compacts also extends to displaced populations who seek safety across borders. The 2016 EU-Turkey deal, which amounted to e6 billion (plus the easing of visa restrictions for Turkish citizens), enlists Turkey to contain the incoming of people seeking asylum in Europe from the East. That same year, Jordan signed a similar compact with the EU, in which it received about e1.7 billion to host and contain displaced Syrian populations. This compact aimed to assist Jordan to revitalise the country’s special economic zones like the area of the Zaatari camp and subsequently open the job market to Syrian refugees. University of Oxford professors Alexander Betts and Paul Collier strongly supported this compact by proposing new ways of keeping refugees from coming to Europe and keeping them as close as possible to their country of origin (Betts & Collier, 2017). Interestingly, their understanding of the provision of international protection is that it can be captured entirely in the ethic of rescue: In their fourth chapter titled “The Duty to Rescue”, they argue that assisting refugees beyond rescuing from death leads to their passivisation as helpless victims. Yet, as Benjamin Thomas White reminds us, “[refugees] are people who have rescued themselves—who have got out of danger by seeking refuge elsewhere” (White, 2019, S. 112). Implicit in the advocacy by Betts and Collier of the EU-Jordan compact is the restriction of mobility, which, they argue, should not only concern non-refugee migrants but be extended to refugees as well. But concretely, the situation of Syrian refugees in Jordan, a country that adheres to neither the 1951 Convention nor the 1967 Protocol but signed a Memorandum of Understanding in 1998 with the UNHCR on the question of asylum, remains precarious and uncertain. Since 2014, the government has gradually restricted the movement of Syrian refugees out of the refugee camps and in the urban centres, while access to welfare services such as healthcare and education remain limited and are conditioned by the regular renewal of residence permits (Achilli, 2015; Fröhlich, 2018).8 It seems therefore clear that under the bilateral/multilateral compact framework, the international provision of protection is reduced to the act of rescue from physical danger. In this logic, a safe place is the one that only guarantees physical survival. This is a standard for protection that is far below capacity-building measures that empower forcibly

8

A large majority of Syrian refugees live outside of refugee camps, in the capital Amman and the northern border regions.

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displaced populations to resume and protect their livelihood in a sustainable manner. Through the compact model, participating countries become “rentier states” (Tsourapas, 2019) whereby they are recipients of the Global North’s spatial influence in the realm of migration management. Because the objective here is the restriction of mobility, even in the case of escape out of danger, the spatial re-configuration of border zones such as the Mediterranean Sea reflects a contestation of the action of the refugee regime. However, the shrinking of the protection space enacted through these compacts that channel restrictive policies does not leave an empty space behind. Instead, there is a spatial reconfiguration of areas along migratory routes where monitoring, detention, and even refoulement are carried out (Amnesty International, 2016). That being said, it would be inaccurate to put all the responsibility on countries in the Global North in the deterioration of the refugee system. Admittedly, countries in the Global South disproportionately harbour refugees: According to the UNHCR (2020c), 85% of forcibly displaced people are hosted in developing countries. When Syrian refugees started to flee en masse, Lebanon, Turkey, and Jordan9 readily allowed them in. Yet, these countries introduced border controls with the opening of refugee camps such as Zaatari (2012) and al-Azraq (2014) (Tsourapas, 2019) and when the incoming of refugees became economically and politically unsustainable without the assistance of the rest of the international community. Yet, it can also be argued, as Tsourapas (2019) suggests, that overburdened countries of the Global South also make use of a refugee system based on “rent” from richer countries. Indeed, Turkish President Erdo˘gan declared during the 2015 G20 Summit in Antalya that Turkey “can open the doors to Greece and Bulgaria anytime and (…) put the refugees on buses… So how will you deal with refugees if you don’t get a deal? Kill the refugees?” Understanding EU’s desire to contain migration at all costs, refugees and migrants in general have been instrumentalised as a source of blackmail. The threat expressed by the Turkish President was implemented in February 2020 when he suspended monitoring the border with Greece and Bulgaria and enabled migrants to go to Europe, allegedly to pressure the EU to assist Turkey in its military operations in Syria. Greece and Bulgaria maintained their borders closed and deployed riot police as well as the military who clashed with the migrants. The same goes in North America as exemplified by 9

Jordan restricted the employment of Syrian refugees but not Lebanon. In 2014, Lebanon introduced the so-called October policy, which imposed restrictions on the entry of Syrians into its territory. For more see Maja Janmyr’s 2018 blog entry on Eumigrationblog.eu at: eumigrationlawblog.eu/the-fragile-legal-order-facing-syrian-refugees-in-lebanon/.

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the co-operation between the US and Mexico in stopping the migrant caravans. Mexico forcefully broke and dispersed a caravan of over 4000 people. Former US-President Trump threatened trade tariffs against Mexico if it did not stop the inflow of migrants from its southern border. The duty to give migrants the possibility to make an asylum claim was suspended when Mexico took on the task of turning them back to their country of origin. Finally, it is worth mentioning that participants of the compact model are not limited to countries, but also international organisations. In 2016, the Netherlands and IOM-Libya signed an agreement to reinforce capacities of Libyan coast guards in intercepting and returning migrant boats. This falls into the IOM’s mission statement “to promote humane and orderly migration by providing services and advice to governments and migrants.” ‘Orderly’ implies here a full participation of the organisation in the very governance structures that see mobility as something to be restricted rather than enabled. In this regard, Charles Heller and Antoine Pécoud (2020) argue that the IOM’s compiling of statistics on border deaths in the context of its Missing Migrant Project (MPP)10 may have contributed to justify monitoring borders, especially by NGOs, in order to save lives. But by refraining to formulate a critique of states’-imposed restrictions on mobility that lead to migrant fatalities, the IOM also served countries’ agenda of imposing ever stricter anti-mobility measures. In the following section, we will discuss an additional factor of the reduction of protection space, namely, the construction of a refugee system that can be easily bypassed for lack of constraining power over its signatories. 3. A Global Refugee Regime that Lacks Enforcement and Sanction Power As we have repeatedly noted, the nation-state framework for the provision of protection constitutes an important obstacle in the refugee regime. The mobility restrictions and territorial controls put in place by nation-sates play a decisive role in exacerbating forced migrants’ vulnerability throughout the migratory journey through the difficulty of reaching safety. The human rights and refugee regimes are limited by the nation-state framework, which precisely allows them to exist. Indeed, the instruments of refugee global governance such as the 1951 Refugee Convention along with its 1967 Protocol and the 1954 Convention on Statelessness are part of the international law era that emerged with the creation of the United Nations and, as such, reflect nation-states’ inalienable right of sovereign territorial control. On the positive side, these texts, along with the Universal Declaration of Human Rights from which they stem (articles 13, 14, and 15), have undeniably embedded the category of the 10

See: https://missingmigrants.iom.int/

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refugee and the asylum seeker as a legal entity that must be protected. From that point on, the protection of refugees is the duty of the signatory states. In addition, the core principle of non-refoulement that is enshrined by the 1951 text adds an important legal exception to Nation-States’ sovereign control over their borders. In spite of these advances, the texts are discourses that remain largely subject to countries’ spatial logic. The nation-state, as a political entity endowed with sovereignty, is also a territorial entity. It establishes, on the one hand, the spatial extent of a particular jurisdiction—or internal sovereignty—and, on the other hand, the illegality of interference by other nation-states in one’s domestic affairs—or external sovereignty. Such is the legal and political framework of the instruments of the refugee regime. These texts may have created an international protection space and be legally binding, they are however devoid of the capacity to monitor and enforce signatories’ compliance with them. There is no guarantee that signatory countries make the protection space accessible to forced migrants, whereas other signatories (and non-statal organisations) cannot oblige countries to do so. The notion of protection space implies that forced migrants have the capacity to cross international borders to seek refuge outside of their country (or place of habitual residence). Receiving international protection means, in this sense, the ability for people seeking asylum to enter the protection space without it being considered as trespassing. Yet, countries can and do limit access to the protection space, or reduce its size, through various policies, agreements, and regulations.11 The externalisation of border management and the offshoring of asylum application processing are prominent tools for reducing the perimeter of the protection space. Such limitations do not necessarily contradict the legal provisions of the 1951 Convention, but significantly reduce their application. In other words, it is not necessary to suspend the basic human right to claim asylum, it is enough to make access to asylum difficult or impossible. The interception by Libyan coast guards of migrant boats in the Mediterranean Sea before they enter the territorial waters of an EU Member State is a common practice of preventing a migrant to exercise the right to asylum. Even if practices that lead to the shrinking of the protection space were violating international law, signatory states would hardly suffer sanctions. The aforementioned texts include no mechanism for penalising states that 11

For instance, the EU Council Directive 2001/51/EC of June 2001 requires that airline companies travelling to the EU only allow passengers who hold a valid Schengen visa. This means that forcibly displaced populations cannot access the protection space quickly and safely by plane but must in most cases undergo a dangerous migratory journey into safety.

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contravene its clauses. Similarly, the United Nations Global Compact on Refugees (UNGCR) that was adopted in December 2018 provides only tentative language for signatory nations. The very language of the compact’s UN General Assembly resolution 73/195 asserts states’ discretionary power regarding access of people seeking asylum and refugees to the protection space over which they have jurisdiction. The introduction to the UNGCR reads that the purpose of this compact is to “i) ease pressures on the host countries involved; ii) enhance refugee self-reliance; iii) expand access to third-country solutions; and iv) support conditions in country of origin for return in safety and dignity” (UNGCR, 2018). While these stated objectives are in themselves commendable, this compact is not legally binding and merely “represents the political will and ambition of the international community as a whole.” As in most situations, when an “emergency” arises, member states of the UN can seek to not enforce the provisions of the global compact and withhold support for the forcibly displaced populations. Interestingly, the compact allows for private sector involvement and engagement as necessary: It further builds on the new public management philosophies of engaging the private sector, faith-based organisations, and all organs of civil society, towards providing international protection. While laudable in spirit, this takes away the state’s responsibility, as several scholars of public administration have pointed out (Denhardt & Denhardt, 2015). The principle that the nation-state should merely ‘steer’ public issues rather than ‘row’ has been the traditional hallmark of the new public management philosophy that seems to have crept into the realm of international protection as well (Osborne & Gaebler, 1992). Concerning this tendency to de-responsibilise nation-states in providing international protection, and in relation to the utopian outlook of this chapter, we can cite the solution proposed by Nicholas van Hear and Robin Cohen (2017, 2020) in which an autonomous “transnational polity” called Refugia is to be established somewhere to host indiscriminately all refugees from around the world to live, work, and prosper in it. In this polity, refugee will be able to self-govern independently from any other country. This allegedly utopian idea reflects the already discussed suggestion made by Collier and Betts of special economic zones in Jordan to contain refugees from reaching Western countries. In essence, Refugia constitutes an attempt at freeing signatory countries from their legal duty to provide international protection by restricting their mobility into their protection space.

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Riding the Dark Horse: Re-Thinking the Current Refugee Regime

Having identified these underlying issues, we argue that it is time to produce an analysis that situates itself beside the current paradigm of refugee regime management. Rather than falling in the usual dichotomy of either macro-level analysis of the overall refugee regime, or the micro-political approach that explores the role of specific actors, such as the UNHCR for instance, we advocate here discussing a review of the protection paradigm itself. While we agree that an analysis of access to protection schemes by forced migrants is important, and that specific actors are necessary to enforce procedures and uphold principles, we take a sidestep by widening and opening the governance imaginary. Hence, the conversation must also start addressing schemes that are not constrained by the usual restraints of the current paradigm, in particular that of nation-state framework. Similarly, we want to orient the conversation toward considerations of refugees as individuals capable of choices and preferences in both their individual and communal lives. To do so, we borrow the concept of “dark horse prototype” from innovation research and the Design Thinking school of thought. The Design Thinking approach is a structured process to develop products, concepts or policies, the primary concern being the conceptualisation of new solutions to a given problem. As a methodology inspired by the discipline of design, Design Thinking “incorporates ideation and creative process attributes, such as empathy for the user, and methods like rapid prototyping and abductive reasoning” (Chasanidou et al., 2014, p. 1). Within the context of the global migration management regime, the approach first implies to acknowledge the concrete vulnerabilities of migrants, whose perspectives are often missing in the debates on and processes of adapting the relevant instruments. Since the more established and orthodox tools often prove ineffective to solve the problems at hand in a satisfactory way (see above), “designers move through iterative phases of thinking and doing” (ibid.), alternating between “analytical thinking”, that is “logic and certainty”, and “intuitive thinking”, that is, “raw creativity” (Martin, 2009, p. 2). Of all the newly fabricated ideas, the so-called dark horse prototype is “the secret super prototype. The most creative but also difficult to build solution. Very pricy, risky and difficult to realise. If all these factors are not important what would the solution be (…)”? (Markus Mattern in his Design Thinking blog learnsuits.com). The expression of “dark horse” is generally used to describe “a horse or a politician who wins a race or competition although no one expected them to.”12 It 12

See: dictionary.cambridge.org/dictionary/english/dark-horse.

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also refers to “a person who keeps his or her interests and ideas secret, especially someone who has a surprising ability or skill.” (ibid.) In this vein, “dark horse” encourages decision-makers to think outside of the box and to rapidly conceptualise different ideas, even if they will most likely not work in practice given the concrete constraints at play. More than any other kind of prototype, the dark horse prototype is driven by such raw and somewhat stubborn creativity. For the designer or any individual working with the dark horse approach, this means bringing forward a prototype even “if it would not be possible to build with current technology and knowledge.” (ibid.). It needs to be underlined, though, that “(t)he main purpose is not to build a crazy product. (…) Sometimes it is important to think the unthinkable to generate great solutions (…).” (ibid.) This is mainly due to the fact that the dark horse prototype allows for a resolute focus on the stakeholder perspective, which in our case concerns forced migrants. Removed from the distractions of the practical constraints of the principle of territorial sovereignty as well as international diplomatic conventions and political calculations, the designers can concentrate on the stakeholders’ needs and vulnerabilities to freely formulate radical solutions. It is in essence a way to open up the process to utopian thinking. By definition, the state of utopia can never be fully attained in practice: “The popular view of utopia, and the one which in practice is accepted by many if not most utopia-writers, is that a utopia is an ideal or flawless state, not only logically consistent in its structure but permitting as much freedom and happiness for its inhabitants as is possible to human life” (Sargent, 1982, p. 567). Nonetheless, utopian thinking can pave the way for new and potentially disruptive ideas that might in the long run shape the lived reality. According to Karl Mannheim, utopian thinking can be a “process of thought which receives its impetus not from the direct force of social reality but from concepts, such as symbols, fantasies, dreams, ideas and the like, which in the most comprehensive sense of that term are non-existent.” (cited in: Sargent, 1982, p. 582) The dark horse prototype can thus be conceived as a way of operationalising such glimpses of utopia and make them analysable and even “testable” in a specific context. When addressing the hardships of forcibly displaced populations and the attempts by the international community to “manage” international migration, our dark horse prototype hence encourages a more need- or stakeholder-oriented way to tackle specific issues—fuelled by creativity. This implies further investigating alternative patterns of providing protection to the populations in distress, which includes the option of group asylum to more effectively address the vulnerabilities of forcibly displaced people that emerge as a result of their attempt to flee danger and improve their living conditions when they reach safety.

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As stated previously, our intention here is not to propose a full-fledged prototype for addressing the deterioration of the refugee system, but rather to engage an initial reflection on a new paradigm for the provision of international protection. The systematised granting of group asylum that circumvents countries’ decisions raises many questions: What supranational organisation will be in charge? How will it look like? How will it be financed and, subsequently, to whom will it be accountable? How will the acceptance of refugees by countries be enforced? What criteria will be retained to decide that a group deserves asylum and mechanisms will be put in place to grant the refugee status? Answering these questions must not hinder thinking outside of the very framework that contributes to the shortcomings of the current refugee regime. In addition, there are already elements of answer for some of these questions. For instance, the granting of refugee status on a group basis is a procedure that exists and has been commonly used by the UNHCR. One can refer to the agency’s Handbook on Procedures and Criteria for Determining Refugee Status. However, we propose going beyond the existing procedures for group-based determination of refugee status but envisioning a regime in which nation-states only play the role of recipients. Indeed, the interests of displaced groups who were granted asylum and, in this regard, the concern for reducing their vulnerabilities as populations fleeing danger, takes precedence over la raison d’État. It follows that our ambition is to steer discourse away from securitisation of migration and toward a more ethical provision of protection, that is, based on common responsibility, the integration of refugees, and their long-term livelihood. This implies exiting the managerial and securitised prism through which refugee governance is currently construed, and accept asylum seekers as political subjects who will eventually become part of a receiving community. In refusing to be limited by the current status quo, we can fully focus on the vulnerability of forced migrants and possibilities to enable them to resume activities that sustain their livelihoods in the long term in their new place of residence, in contrast with temporary protection schemes and protracted encampment. In other words, our dark horse prototype suggests the empowerment of individuals within a context marked by numerous vulnerant factors, thereby underlining the cruciality of ‘power in vulnerability’. The more practical questions regarding what entity(ies) would be in charge of assigning the refugee status to the group, the means to enforce the decision and, more broadly, what it would imply for state sovereignty on this particular matter, must be discussed at an ulterior stage, once the dark horse prototype is fully designed. Only then can it be confronted to the concrete constraints that weigh on the refugee regime and see how the prototype can be adjusted.

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Conclusion

There is no doubt that our prototype proposal, which is motivated by the sole aim of reducing forced migrants’ exposure to vulnerabilities and guaranteeing a sustainable livelihood, is a “big idea” that envisions a radical vision of the future of refugee governance. It is radical in the sense that it is going after what we deem to be the root of the dysfunctions of the current regime, namely, countries’ last word over who obtains asylum in their territory. It can also be argued against our prototype that it stems from a deeply unfavourable vision of the state, so much so that we take the path of their complete legal de-responsibilisation in the realm of refugee governance. To the credit of our prototype, however, this is not so much an attempt at letting states “off the hook” (Crawley, 2018) in the way Refugia or advocates of the compact model do, but rather the imposition of obligations because sovereignty and international protection may actually be mutually exclusive. It is true that many countries and communities have exhibited throughout the twentieth and twenty-first centuries immense generosity towards forcibly displaced populations. Dawn Chatty’s book Syria: The Making and Unmaking of a Refuge State (2018) is a remarkable example of a nation’s historical generosity and hospitality towards several displaced minorities fleeing persecution. Be that as it may, we contend that it is time for the advent of a refugee regime that is less susceptible to political changes and discourses than the current one. We encourage therefore engaging in a utopian proposal that is chiefly concerned with the plight of forced migrants rather than proposing managerial solutions. We contend that social sciences can and should create more space for utopian thinking as a method for critical thinking, because it incorporates a necessary transformative agenda. The process of knowledge production must indeed help disentangle our own political imaginaries from established, yet ineffective, practices such as the process of international provision of protection. While at some point our dark horse prototype must be confronted to the reality of the inter-state system and the importance of national sovereignty, our prime ambition here is to re-centre the refugee regime and the provision of protection on the vulnerabilities of forcibly displaced populations and their capacity to safeguard their livelihood. What comes next is to delve into the “thick” aspects of our dark horse prototype. Such aspects include first discussions about the body that would govern—and be responsible for—the provision of protection in lieu of states. One could imagine a profound reform of the UNHCR so that it could become this supranational entity. However, the question of financing such an entity brings back the problem of its political dependence precisely from donors, namely, nation-states. Questions pertaining to the source of monies and

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the supervision of their use are complex. Besides the possible regression into the nation-state framework, there is also the risk that this governing body become technocratic and nominate bureaucrats to manage it, which can potentially result in losing sight of the protection and well-being of refugees and asylum seekers. These are but a few issues that need to be addressed in relation to out dark horse prototype. However, we do not view them as obstacles to its implementation, but rather unavoidable aspects that pertain to the reality we know and that we want to update.

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