Keywords

I started this book with a quote from Nora, a superior in the SEM. She was confident that she knew what words like credible, persuasive, plausible and logical meant to established employees. They shared a common understanding; she could imagine what the words meant to them and therefore did not question their decisions. My focus in this book has been to investigate this shared understanding, to focus on the regularities of administrative practice rather than the divergences or deviances.

I do not deny that divergences exist. It has been shown by several authors that the outcomes of asylum decisions sometimes differ depending on which asylum administration or court, which unit within these administrations and courts and which individual decision-maker takes the decisions (see Anker 1991; Eule 2014; Fassin and Kobelinsky 2012; Hamlin 2014; Johannesson 2017; Miaz 2017; Ramji-Nogales et al. 2009; Rehaag 2012; Spirig 2018). Furthermore, decision-makers may at times consciously decide to deviate from a certain rule or norm. And indeed, the ways in which caseworkers interpret rules and norms, of course, will vary.

However, my point is that we cannot fully understand bureaucratic processes without considering how routine practices are generated and reproduced within administrations. Studying the regularities is as important as studying divergences for a comprehensive understanding of how institutions function, and how the laws and policies they are in charge of “applying” work. I argue that by overtly focusing on the divergences and inconsistencies in asylum determination, we run the risk of reproducing the common criticism that asylum and credibility determination are done in an “arbitrary” and “subjective” way (see Anker 1991; Crawley and Lester 2004; Einhorn 2009; Goodwin-Gill 1996; Kagan 2003; Macklin 1998; Ramji-Nogales et al. 2009; Thomas 2009). I find this criticism problematic because of the implicit assumption that, as Tobias Kelly writes, “so long as the right reforms are put in place, the correct training initiated and the most suitable technical fixes rolled out, everything will be, if not perfect, then at least considerably fairer and more just” (2011: 184). The problem of discrepancies is either attributed to the individual decision-makers and their “subjective views” or to the law for leaving a loophole for such “subjective views” to be able to play a role in the first place. However, I argue that a critical understanding of asylum decision-making practices—and administrative practice in general—must go beyond this.

“Subjective views” always play a role in the “application” of law and policies. People’s interpretations of law or, in other words, their discretionary practices constitute a necessary part of what law itself is. Thus, law does not sometimes leave a loophole and sometimes not leave a loophole for discretionary practices. When “applying” laws and policies to specific situations or cases they must always be interpreted by the people “applying” them, as this book has shown (see Eule et al. 2019: 101; Hawkins 1992: 11; Heyman 2004: 493; Poertner 2018: 10–11; Wagenaar 2004: 651). Through these interpretative practices, law and policies are continuously “(co-)produced” in practice (Poertner 2018: 10; see also von Benda-Beckmann 1991; Brodkin 2011: 253–254; Eckert, Behrens, et al. 2012; Eule 2014; Shore and Wright 2011; Wedel et al. 2005: 34). However, while it is individual caseworkers who must interpret the law and policies, this is not done in an individualistic way. What is rather at stake here is “socialised subjectivity” (Bourdieu and Wacquant 1992: 126), as has been brought to light by this book.

The criticism that asylum decisions and particularly credibility assessments are based on subjective views and are arbitrary seems to be partially ascribed to what is commonly referred to as “gut feeling”. The importance of “gut feeling” for asylum, and administrative decision-making in general, has been stressed by numerous authors (see Dahlvik 2018; Dubois 2010; Fassin 2013; Fassin and Kobelinsky 2012; Johannesson 2017; Jubany 2011, 2017; Kelly 2012; Lavanchy 2014; Liodden 2016; Macklin 1998; Miaz 2017; Thomas 2009). “Gut feeling” may give the impression of being highly individual, which seems to be at the core of the criticism of credibility assessment as being “subjective”—a view that was sometimes also conveyed by SEM officials themselves. However, in this book I have shown that “gut feeling”, which forms part of SEM officials’ “professional-practical knowledge”, is shaped by the office. Decision-makers acquire it through their socialisation on the job, through belonging to and becoming a member of the office, and through carrying out their daily tasks.

That “gut feeling” plays such an important role in asylum decision-making and credibility determination is not exceptional. As Andreas Reckwitz (2003) argues, (professional-)practical knowledge forms part of practice itself. This practical sense of self-understanding underlies all our actions: including administrative ones (see Dahlvik 2018: 57–62; Reckwitz 2003: 289–294; Wagenaar 2004: 651). Understanding practice, therefore, demands that “gut feeling” should be taken seriously rather than criticising its existence. We must pay attention to “the almost unthinking actions, tacit knowledge, fleeting interactions, practical judgements, self-evident understanding and background knowledge, shared meanings, and personal feelings that constitute the core of administrative work” as Hendrik Wagenaar writes (2004: 643).

Practical judgements are at the core of this book, since they lie at the heart of asylum decision-making. Asylum decision-making—just like any administrative-legal procedure—requires clear-cut classifications into “categories of inclusion and exclusion” (Handelman 1995: 280; see also Kelly 2015: 188). This is what SEM caseworkers are tasked to do; a responsibility which requires them to sufficiently overcome the uncertainties inherent in asylum decision-making to be able to reach “final” decisions, clearly classifying asylum seekers into one of four legal categories: refugee with asylum, refugee with temporary admission, non-refugee with temporary admission and non-refugee without temporary admission.

Shared meanings, self-evident understandings, professional-practical knowledge and routine behaviours play an important role. I have shown how for Teresa (in Chapter 5), for instance, it is self-evident that the applicant not asking his father about the letters the latter had asked him to deliver constitutes a clear marker for non-credibility and that for Gabriel (in Chapter 6) it is self-evident that he always seats himself and the asylum seeker at the opposite ends of the rectangle table which are furthest apart from each other. These are things decision-makers “simply” do or know, just like the many times decision-makers told me that they “simply knew” from experience whether an asylum seeker’s narrative was authentic or not. However, when questioned, they mostly found it very hard to articulate how they knew this. Nevertheless, this type of know-how is an integral and critical part of the essence of practice. In a similar way, decision-makers come to know with experience what questions to ask in asylum interviews and rather routinely go about digging deep. Such “shared repertoires of knowledge” (Affolter et al. 2019: 265; see Wenger 2003) exist for the office as a whole, but also for different organisational units. And they depend on other “communities of interpretation” (Affolter et al. 2019) that the officials align themselves with or are affiliated with by others, for instance, in connection with their educational background, institutional age or the hierarchical position they occupy. These forms of belonging, combined with their “shared repertoire of knowledge”, often emerge from office banter; through how decision-makers distinguish themselves—and their units, for example—from others. However, officials’ badmouthing of others as being too lenient, too strict, cynical, naïve or behaving in a political way not only sheds light on the fissures and fractures that run through the administration, it also points to commonly shared meanings; the unquestioned middle ground, so to say.

“Allowing everybody to stay” is considered bad decision-making and so is “wanting to keep everybody out”. Naively and readily believing the asylum seeker is considered another quality of unprofessional decision-making, but so is its counterpart of being overly suspicious and not believing every applicant. Good decision-makers are perceived as those who reserve refugee protection for those “truly deserving”, are sufficiently suspicious and dig deep in asylum interviews. These are the shared—and for the most part unquestioned—values and practices of professional decision-making. As such, they are crucial for understanding how asylum decision-making works.

By dealing with everyday practices of asylum determination, this book has highlighted the “everyday production of stateness” (Eckert, Biner, et al. 2012; see also Beek 2016; Bierschenk and Olivier de Sardan 2014; Fassin 2015). I thereby followed Didier Fassin who argues that such practices of state-making should not be treated as happening in a vacuum since state “agents are confronted with explicit and implicit expectations formulated in discourses, laws and rules while keeping sizable space to manoeuvre in the concrete management of situations and individuals” (2015: 4). By analysing everyday practices and by showing how decision-makers acquire an institutional habitus on the job which shapes how they think, feel, know and act, I addressed how decision-makers go about concretely managing situations and individuals and how they deal with the space to manoeuvre, as described by Fassin. At the same time, the book also shed light on the ideological, normative and regulatory environments in which SEM officials work; how these are constitutive of the institutional habitus, but are also constituted by the institutional habitus through the everyday practices the latter generates.

Didier Fassin and Carolina Kobelinsky put forward the thesis that “the institution is the product of both policies and practices, but also that it contributes in turn to fashioning the former and determining the latter” (2012: 448). In bringing together the discussions of the different chapters of this book, I conclude by showing how this happens: how normative, structural and regulatory constraints as well as the institutional habitus constitute each other and how practices generate the institution and are also determined by the latter.

A majority of asylum applications in the different countries of the Global North are rejected, mostly on the grounds of non-credibility (see Fassin 2013: 47; Kelly 2012: 759; Probst 2012). This was the puzzle I initially set out to study: How could this pattern be explained? There seem to be two common opposing answers to this from the view of the different actors involved in or dealing with refugee status determination. On the one hand, the reasons for the majority of asylum seekers being refused refugee status is seen to arise from the “fact” that the majority of applicants “are” so-called “economic migrants” and are thought to lie in the asylum interviews in order to try and receive a residence permit. By doing so they are perceived as abusing the system. As I showed in Chapter 4, this view is, for instance, clearly stated in the SEM’s online manual on asylum and return. On the other hand, it is often argued by NGOs, legal advisors and activists that the recognition rate for the granting of asylum remains consistently low because the SEM (or possibly even the Federal Council) set quotas as to how many people may receive asylum. Both views are challenged in this book. Hence, the in-depth study of everyday practices in the SEM allows us to look beyond (and challenge) both the tautological explanation proposed by the SEM, on the one hand, and the political instrumentalism (implicitly) proposed by activists, on the other. What I hereby propose is, thus, a different critique—or critical understanding—of asylum decision-making and policies.

My point is not to say that asylum seekers do not lie, or feel forced to lie. Nor do I want to suggest that I am more accurately able to assess “the truth” of asylum seekers’ narratives. What I have rather shown in this book is that so-called “lies”, “liars” and elements of non-credibility are produced through the questioning techniques used in asylum interviews themselves (see also Crawley 1999: 52; Sbriccoli and Jacoviello 2011: 184–185; Scheffer 2001, 2003). At the same time, I heard no evidence of recognition quotas during my fieldwork. This is not to say that there is no political influence on asylum decision-making. However, I argue that it mostly does not play out in this top-down instrumental way. Many different factors concur to produce restrictive asylum policies and outcomes of asylum decisions, and they mutually influence and reproduce each other.

One structural condition is posed by the “individual protection regime” (Poertner 2018: 5) of countries in the Global North itself (see also Fassin 2016a: 66–67; Fassin and Kobelinsky 2012: 448). Asylum or refugee protection is not a right people who have fled from other places per se have or are entitled to. Rather, their entitlement to the right of asylum is assessed on an individual basis through extensive administrative procedures. These procedures resemble other administrative procedures in which people make (individual) rights claims on the state or apply for “goods” or “benefits”. A common trait in these administrations is that caseworkers assume and are ascribed the role of “gate-keepers” (see Lipsky 2010: 4). They become “guardians of a restricted good” (Heyman 2009: 381) which in the case of decision-making in the SEM is the right to reside in Switzerland. This is what protecting the system is about. Yet, protecting the system also goes beyond this.

Asylum decision-makers in the SEM are state agents, which rather self-evidently is taken to mean that they must act in the interest of the state. Two commonly shared interpretations of what this means emerged from my data. One the one hand, it means upholding Switzerland’s “humanitarian tradition” and the value of the asylum system, which, as Didier Fassin and Carolina Kobelinsky argue, paradoxically leads to restrictive decision-making. They write that “[t]he less frequently [asylum] is granted, the more precious refugee status becomes” (2012: 464). On the other hand, acting in the interest of the state for decision-makers means that they must “fight abuse” and thereby again reserve asylum for those “truly deserving” of it. The underlying assumption behind this is that not everybody should be allowed to stay; that the state has an interest in ensuring that “too many foreigners” are not allowed to reside in Switzerland. This is linked to the “politics of deterrence” (Poertner 2017) which has a direct impact on practices of decision-making, but is also the outcome of decision-making practices. As Ephraim Poertner shows, the politics of deterrence translates into and manifests itself in the different priority categories in the SEM (2017: 19). Certain asylum claims are decided on very quickly, while others are deliberately held back in order to avoid creating a so-called “pull-effect”, thus intending to make Switzerland an unappealing country in which to apply for asylum.

The politics of deterrence are linked to broader political discourses. Asylum seekers, as well as migrants in general, are today in political discourse often portrayed as a “problem” and as a “threat” to national security and a country’s economy, culture and identity (see Boswell 2007: 589; Dahlvik 2018: 9; Gill and Good 2019: 5–6; Huysmans 2000; Jubany 2017; Miaz 2017: 11–14). These discourses have figured as the drive behind and as a legitimation for the numerous restrictive changes made to Swiss asylum legislation since the introduction of the Asylum Act in Switzerland in 1981. Several of these changes were initiated by, as well as the consequences of, political referenda. The media, political discourses and parliamentary inquiries into decision-making practices in the SEM have an impact on those practices. Political pressure is felt by the SEM officials, especially by those occupying higher hierarchical positions who are, thus, more directly accountable to the Federal Councillor in charge of the SEM. As a consequence of this, quite drastic changes to practice doctrine are occasionally made, but more often, political pressure seems to more subtly shape decision-making practices, leading to gradual shifts in collective patterns of decision-making. Yet, this does not happen in a unilateral way. Hence, political discourse is also influenced by decision-making practices and the outcomes these produce. And, of course, political discourses do not stand alone, but are embedded in broader social contexts. This can be seen in the historical accounts of asylum and migration politics which argue that the shift towards ever more restrictive asylum politics in the 1980s was linked to the economic crisis and to the fact that the people requesting refugee protection at that time had not all fled from communist countries and, thus, did not so clearly fit into the East/West divide anymore (see Däpp 1984; Fassin 2016b; Fassin and Kobelinsky 2012; Jubany 2017: 44–46; Kobelinsky 2015; Piguet 2006).

Asylum law as it exists today sets its own structural constraints and limits. Decision-makers are required to take clear-cut either/or decisions which have drastic effects on asylum seekers’ lives; a fact that decision-makers are well aware of. These decisions must be reasoned in writing, although it is only the reasoning for negative decisions that is then sent out to asylum seekers (and their legal advisors). As I showed in Chapter 4, such decisions must be taken and reasoned in a context of several “known unknowns” (Kelly 2012). Material evidence corroborating asylum seekers’ stories often does not exist. Hence, decision-makers mostly rely on other “facts” which are created through the asylum procedure—or, rather, which the decision-makers themselves create in the course of the proceedings. I have argued that creating such “facts” for reasoning negative asylum decision is easier with regard to “non-credibility” than it is for “non-eligibility to refugee status”. This is reflected in the fact that reasoning negative asylum decisions on the basis of non-credibility whenever possible (and appropriate) is a widespread policy in the SEM.

The way “facts” are, and necessarily must be created due to structural constraints, shapes how asylum interviews are carried out. Research on asylum procedures in different countries has shown that asylum interviews are mainly about “searching for untruths” (Kelly 2012: 765) and checking asylum narratives for inconsistencies and discrepancies (see Bohmer and Shuman 2008: 136; Johannesson 2017: 12; Jubany 2017: 135–137). The absence of such discrepancies and inconsistencies (and of other markers of non-credibility known to decision-makers) speaks for the “truth” of an account, while their presence indicates the opposite. This fits with Article 7 of the Swiss Asylum Act which also defines “credibility” in a negative sense. Thus, it is the criteria which characterise “non-credibility” that are listed in Article 7 AsylA rather than criteria which would characterise a credible account.

My research has shown that it is easier to produce “facts” for reasoning negative asylum decisions on the basis of non-credibility rather than on non-eligibility to refugee status; this is also an institutional policy since such decisions are mostly more difficult to refute on appeal. Additionally—and equally importantly—my research has shown that reasoning negative decisions with non-credibility is also an important coping strategy for decision-makers. By rejecting asylum claims on the basis of non-credibility, the responsibility for the outcome of the decision is shifted to the asylum seeker: it is the latter’s fault for not telling the truth.

Generating facts for positive decisions is also not necessarily difficult, particularly since such decisions must only be reasoned internally. However, as I have shown, granting asylum is, nevertheless, not something decision-makers do “easily”, for other reasons. The book has brought to light how digging deep becomes the neutral, ethical and apolitical thing for decision-makers to do. Digging deep represents what it means to act in the name—and in the interest—of the state. As a practice, digging deep is important because of the way “facts” have to be created for reasoning clear-cut either/or decisions, but it is also linked to the professional norm of suspicion. The professional norm of suspicion plays out and is reaffirmed through shared stories amongst co-workers, peer pressure, organisational socialisation including the way novices are coached by their co-workers and controlled by their superiors as well as decision-makers’ need to fit into the office and its different “communities of interpretation”. Furthermore, it is continuously reproduced by the outcomes digging deep produces. Digging deep actively generates the “liars” and “false refugees” it sets out to “uncover”, thereby reinforcing the perception that, indeed, there “are” many false refugees which, again, strengthens the office’s and individual decision-makers’ endeavours to identify and exclude them from asylum, reaffirming decision-makers’ role as protectors of the system. Disbelief becomes normal.

While the empirical focus of this book has been on asylum decision-making, its discussions contribute to a broader understanding of state administrations. Understanding state administrations requires studying the everyday practices of state agents. But, as Didier Fassin argues, such practices do not take place in a vacuum (Fassin 2015: 4). We must pay attention to the ideological environments in which caseworkers carry out their work; to the norms and values underlying their practices. These are not just explicit norms and values, but also feelings and desires which are incorporated into caseworkers’ institutional habitus. They are expressed through practice, which is at the same time constituted by and constitutive of the institutional habitus.

Rules matter, setting the possibilities and limits of decision-making. But rules and laws only acquire meaning through people’s grasp of them (see Wagenaar 2004: 65). This grasp is structured by the dispositions decision-makers acquire on the job and, thus, by their institutional habitus. The regulatory frameworks and ideological environments I describe in this book, to a greater or lesser extent, also apply to other migration administrations (see Borrelli et al., forthcoming; Eckert 2020). Beyond the field of migration, it is particularly the structural constraints arising from administrative-legal decision-making and the important role of professional-practical knowledge, which I identified in this book, that appear relevant for other bureaucratic administrations.

It has been argued that what the state is, how it works and how it is produced, can only be understood by examining state agents’ everyday practices. I argue that this means studying what caseworkers do, what they say they do, why they say they do what they do, and what they think they should do. Furthermore, I have highlighted the crucial role of professional-practical knowledge in everyday decision-making. Knowledge is practice. Understanding administrations and understanding the “everyday production of stateness” (Eckert, Biner, et al. 2012: 5), therefore, means paying attention to what state agents know; paying attention to what constitutes this knowledge, how it is acquired, how it is (re-)produced in and through everyday practice and paying attention to how what administrative caseworkers know, produces the patterns of administrative-legal decisions we can observe from the outside. It is these regularities that matter.