Keywords

Introduction

During Europe’s ‘long summer of migration’, in 2015, Sweden was the country that received the highest per capita number of asylum applications of all EU-member states (UNHCR, 2016), as 162,877 applications for international protection were filed with the Swedish Migration Agency (hereafter SMA; Migrationsverket, 2016). The shift towards a more repressive Swedish refugee policy, which in early 2016 was introduced by the Social Democrats as a temporary change that should give Sweden ‘breathing space’, was formalised by the red-green coalition government with a revised asylum law in 2021, which transformed the supposed-to-be temporary changes into a more permanent set of restrictions (Giansanti et al., 2022; Asylarkivet, 2022; Nordling and Persdotter, 2021). After their election victory in the autumn of 2022, the new government coalition of right-wing and neo-liberal parties has announced considerably more far-reaching restrictions (‘Tidö Agreement’, see Civil Rights Defenders, 2022).

To give an example from statistics and to compare with the EU country that received the highest total number of refugees in recent years, Germany rejected 52% and Sweden 71% of initial asylum claims filed in 2019 (EUROSTAT, 2020). Once the initial claim is rejected, the way that remains for the applicant to be legally allowed to stay in Sweden, is to appeal for the decision to be overturned by the SMA itself (first legal instance) or in a court of law (second and third instance, see Sveriges Domstolar, 2023). For asylum applicants, the vulnerable group in the focus of this chapter, being granted the legal right to stay in Sweden is vital for their access to social rights and the possibility to receive welfare provision. In short, the asylum determination procedure is central for the process of granting access to legal and social rights in Sweden. This procedure relies heavily on establishing certain ‘facts’ about asylum applicants and their countries of origin. Given the importance of this country information (see e.g. Rosset, 2019), the epistemic question of ‘What is knowledge?’ is crucial in the legal process that recognises certain ‘country of origin information’ (COI) to be ‘factual information’ (see e.g. Johannesson, 2017). However, when reviewing the literature about the practices of adjudicating asylum cases, one finds only a few studies that examine the internal operations of Sweden’s legal system (e.g. Wikström and Stern, 2016; Lundberg, 2011). Even fewer studies in the Swedish context problematise COI within the asylum determination procedure (e.g. Elsrud et al., 2021). As Wettergren and Wikström (2014) have shown in their analysis of migration court cases concerning Somali asylum applicants in Sweden, the applied COI tends to be treated as factual information about the refugee-sending country against the background of which the narrative of the asylum applicant is judged as being either credible, or not credible. Wettergren and Wikström (2014) conclude that this process is marked by a ‘narrow Western understanding of what political persecution means’; an understanding based on which the bureaucrats of a wealthy welfare state in the Global North assess claims made by asylum seekers from refugee-sending countries, i.e. mostly poorer countries in the Global South. In this context, the applied COI, the process of asylum adjudication, and the embedded power relations, can be conceptualised as ‘epistemic violence’ (Spivak, 1990). The purpose of this chapter is to investigate the power structures embedded in COI and Swedish asylum case adjudication, and to problematise the epistemic violence that these power structures can cause in the single legal case.

Adding to previous research on the topic in other national contexts than Sweden (e.g. van der Kist et al., 2019), I focus on COI as it is used in Swedish migration courts. I draw on the semi-structured interviews with the decision-makers—lay judges (nämndemän)Footnote 1 and professional judges (yrkesdomare)—which I have been conducting from 2014 until 2022. More specifically, this chapter is mainly built on presenting and analysing excerpts from ten of these interviews,Footnote 2 which I audio-recorded with professional judges who decide in asylum cases either at the Migration Court of Appeal (MCA, in Stockholm) or at one of Sweden’s four local Migration Courts (MCs, in Gothenburg, Luleå, Malmö, and Stockholm, see also Sveriges Domstolar, 2023).

The chapter proceeds as follows: I take my starting point in those publications which argue that Sweden’s asylum system does not live up to its central claim of abiding by the rule of law (e.g. Asylarkivet, 2022; Elsrud et al., 2021; Lundberg and Neergaard, 2020). As I highlight this criticism, it is important to note that critical views of the asylum system are expressed not only by external (e.g. scholars) but also internal actors (e.g. judges, see Joormann, 2019). Then I take up Krause’s (2021) tracing of the Eurocentric roots of the international refugee regime, which she characterises as ‘colonial-ignorant’. Against this historical background, I present the chapter’s conceptual framework of ‘epistemic violence’ (Spivak, 1990) and the analytical focus on COI within Swedish asylum case adjudication. Finally, in the analysis and discussion of the empirical data, I problematise the occurrence of epistemic violence understood as the ignoring, silencing, or denying, of knowledge claims made by the asylum applicant.

Contextualising the Research

With its roots in Article 14 of the 1948 Universal Declaration of Human Rights, the 1951 UN Refugee Convention and its 1967 Protocol are still the main sources that define the international refugee regime (Krause, 2021; McAdam, 2017; Mayblin, 2014; Barnett, 2002). Since 1997, the Dublin Regulation has been in place to regulate refugee reception in Europe. In 2001, Sweden joined the Common European Asylum System (CEAS). Together with other changes at the national, EU/regional, and broader international level, both ‘Dublin’ and CEAS are part of a development that has led to a continuously stricter and stricter control of refugee migration to Europe, including Sweden (Giansanti et al., 2022).

Following the implementation of the current Aliens Act of 2005 (UtlL, 2005, p. 716), on 1 April 2006 the migration courts began with their work and the Swedish migration bureaucracy took its current form (Feijen, 2014). The decision to complement a new Aliens Act in 2006 with courts specialised in immigration law was motivated mainly by the following two reasons. From 1992 to 2005, the first-instance decisions taken by the SMA could be appealed to only one higher instance, the Alien Appeals Board (AAB, Utlänningsnämden, see Abiri, 2000). As it was argued when preparing the reform of 2005/06 (see also Johansson, 2005), replacing the AAB with courts of law would allow the system to benefit from an increased level of rättssäkerhet; a key term in the Swedish debate that encompasses claims to both ‘legal certainty’ and ‘rule of law’ (Joormann, 2019; see Banakar, 2015).Footnote 3 In contrast to the system that existed before 2006, the first and second legal instances would no longer operate under the Swedish Government as the highest instance. The reason for this procedural change was mainly motivated with the aim that ‘asylum determination should be under judicial control’ (Johannesson, 2017, p. 70). The second reason was more straightforward. In an interview given to journalists in 2005, the Migration Minister at the time provided an explanation of why the Swedish asylum system needed to change: ‘As it looks today, the process effectively has no end because we have a system where the asylum seeker can file new applications again and again’ (cited in Sydsvenskan, 2005).

The current system is designed to prevent rejected asylum seekers from re-applying. Once a Migration Court decides that an application is rejected, this tends to be the final decision (Josefsson, 2016). Meanwhile, the implementation of two new appeal instances has led to an improvement in terms of rättssäkerhet—if this Swedish keyword in the context is understood as a ‘ceremonial version of bureaucratic justice’ (Johannesson, 2017, p. 10). This being noted, the two new appeal instances (as courts of administrative law) provide the applicant with a less hierarchical bureaucratic setting compared with the entirely inquisitorial system operating until 2006, in which case officers, appeal board members and, in the last instance, the government decided (Joormann, 2020; 2019; see also Johannesson, 2017).

Reviewing the literature on asylum cases decided at Swedish courts, as exemplified above (Wettergren and Wikström, 2014), some studies focus on the credibility (see also Wikström and Stern, 2016; Beard and Noll, 2009) that is attributed (or not) to the asylum applicant. In another publication, Wikström (2015) contends that the ‘epistemic (in)justice’ (see Frickers, 2007) thus produced at the migration courts can be challenged by analysing the discursive construction of, for example, ‘culture’. Wikström (2015) argues that legal categorisations can be de-constructed and that the problematisation of taken-for-granted terms (e.g. of ‘culture’) should be linked to the implicit assumptions of Western liberal law (see also Anderson, 2013). These assumptions have implications for the production and application of COI, as will be shown in the next section.

Country of Origin Information

Contributing to the international literature that analyses COI as it is used in asylum determination procedures (e.g. McDonald-Norman, 2017), this chapter focuses on COI in asylum case adjudication in Sweden (for research in Swedish, see e.g. Elsrud et al., 2021). The political situation in a certain place at a certain point in time is crucial when it comes to producing new—or compiling existing—COI. Tracing its origins, Rosset (2019, p. 1) defines COI as both a ‘type of expert knowledge and a field of professional practices that has emerged since the late 1980s in the framework of West European and North American asylum administrations […]’. In Sweden, COI is primarily compiled by the Country Information Unit (Landinformationsenheten), which is often described as an independent unit of the SMA (Johannesson, 2017). The unit’s employees compile existing or produce new COI by going on ‘investigative trips’—as a judge I interviewed put it—to the country that they seek information on. This detail is significant, as van der Kist and collaborators identify links between this form of knowledge production and colonial power relations:

Akin to colonial expertise, knowledge and rule are closely related in COI units as a ‘set of practices’ that collect and standardize information, measure, classify and calculate (supranote: Mitchell 2002, 4, 6). Critical observers often warn that these state knowledge practices disenfranchise the refugee through eliminating his or her voice in the process leading to the decision to deny or terminate protection (supranote: Chimni 2004, 61) […]. (van der Kist et al., 2019, p. 71)

The power relations represented within COI, in the form of knowledge produced in refugee-receiving countries about refugee-sending countries, indeed remind the observer of practices that Western researchers and other knowledge producers in the past applied when collecting information about territories under European colonial rule (Duran, 2006). As it was also the case with knowledge claims made by colonialists in the past (Said, 1978), there are only unclear demands as to how objective COI is supposed to be, since it ‘[…] holds a curious middle ground between social science—with its claims to objectivity—and the production of practical policy knowledge’ (van der Kist et al., 2019, p. 71). Against this background, the next section includes a short history of the coloniality of the international refugee regime, while focusing on the implications that this history has for the usage of COI in asylum cases.

The Colonial Origins of the International Refugee Regime

In several of the interview excerpts analysed in this chapter, the certainty of the provided information is questioned by the decision-makers because there is a lack of COI—or because there is not enough COI that is of sufficient quality and accessible to them. Regarding the general question of how certain the legal decision-making process in asylum cases can be, Krause (2021, p. 24) finds that the ‘highly politicised and contested origin of “international” refugee law […] calls into question the liberal-positivist notion of legal neutrality, equality and objectivity, its fair, uniform and universal application worldwide’. She explains this as follows. When the Refugee Convention was prepared in 1950, there were discussions about the scope of the refugee definition, i.e. the question of who is to be considered a refugee. This discussion included criticism from de-colonised states. For instance, a Pakistani delegate ‘stressed that “[h]is Government could not accept the definition” as it “covered European refugees only and completely ignored refugees from other parts of the world”’ (Krause, 2021, p. 5). And while in 1950 a considerable part of the world was still under direct colonial rule, no colonised country aside from Cambodia and Laos (then still colonies, but already in the process of becoming independent) was invited to participate in the drafting of the Convention (Krause, 2021, p. 11).

The 1967 Protocol of the Convention added the possibility of non-Europeans being legally recognised as refugees. Notwithstanding this and more recent improvements, it is important to acknowledge that the views of newly de-colonised states were ignored, while countries under colonial rule were not at all represented when the international refugee regime was designed. It is in this context that Krause (2021, p. 5) characterises the process that led to the ratification of the Convention as marked by a ‘colonial-ignorant’ discourse: a discourse which also affects the present-day production and application of COI in Western legal systems and European settings of asylum determination (van der Kist and Rosset, 2020; Rosset, 2019; van der Kist et al., 2019; Mayblin, 2014).

Epistemic Violence

Spivak’s (1990) conceptualisation of ‘epistemic violence’ is useful to remain aware of the (post)colonial power relations between North and South, which also influence asylum determination in Sweden today (Asylarkivet, 2022; Elsrud et al., 2021; Wikström, 2015; Wettergren & Wikström, 2014). Epistemic violence can be defined as a process by which institutions in the Global North ignore, silence, or deny, knowledge claims made by actors from the Global South (see Spivak, 1990). Regarding asylum case adjudication, this primarily concerns information stated in the form of COI, produced or compiled by a migration bureaucracy in the Global North and used as the ‘factual’ background against which the information provided by the asylum applicant is ‘checked’. The link between colonial power relations and the ignoring, silencing, or denying, of knowledge claims made by people seeking asylum from countries in the Global South also resonates with how Duran (2006) defines ‘colonial bureaucratic violence’. That said, in another publication my co-authors and I have pointed out that, while colonial bureaucratic violence is characterised by ‘the various mechanisms through which institutions alienate, isolate, and oppress Native people’ (Abdelhady et al., 2020, pp. 14–15), we do not want to equate the violence under colonial rule with the bureaucratic violence that refugees encounter in contemporary welfare states.

Ethics and Methods of Data Analysis

The ethical considerations that guide this research centre on the strategy that the analysed excerpts from my interviews with the judges are referred to as anonymised data from conversations with the research participants (Bryman, 2012, pp. 129–155; see also Jaremba and Mak, 2014; Littig, 2009). It is important to note that my audio recordings and verbatim transcriptions of the interviewsFootnote 4 do not include any personal information about individual asylum seekers, as the judges limited themselves to speaking about their decision-making in general terms and without mentioning any confidential information about specific individuals. Nevertheless, also to protect the anonymity of the research participants, I treat all the gathered material as potentially sensitive information by anonymising it to the extent that neither the public nor the peers of the interviewed judges will be able to identify the source of the respective excerpt. In this way, I present, contextualise, and analyse the interviews by conducting a qualitative content analysis (Bryman, 2012).

Analysis

Acknowledging the position of power from which Swedish judges take top-down decisions that directly affect the lives of asylum applicants, it is relevant to examine those passages from the interviews in which the judges talk about the information that becomes central to their decisions. The findings of previous research on this topic, as summarised above, make it necessary to deepen the analytical debate on the question of how COI is incorporated into the decision-making process. To this end, it is crucial to reach a more detailed understanding of (a) what the Swedish asylum system considers to be valid COI, and (b) how this information can be processed by law’s internal operations.

The Institutionalised Power Imbalance, and Epistemic Violence

[…] it is the [UK] Home Office […and] even the [US] State Department, and sometimes in fact the Swedish Foreign Office’s reports, these can be taken into account, and there it is even like that, that, yes well, the thinking with the [2005] Aliens Act is after all that the legal parties should bring in COI which they think is needed, sort of. The SMA, for example, indeed provides the court with—and this, actually, only if we think that this country information, which they [the SMA] have come with, is too old, or it does not give enough information, or whatever it can be. Then we have ourselves taken in reports sort of and then one has probably looked in the first place at those. But, the legal parties, they can provide whatever they want, so whichever information they want. And then one indeed has to evaluate in light of, if one says, other reports [too], and see what one thinks is most likely. (IT1)

This interview excerpt deserves attention as it illustrates how the selection of information is impacted by the discretionary power of the decision-maker. It also demonstrates that there is a selection of COI that judges deem to be the ‘most likely’ representation of the reality in the respective country. And while the excerpt gives us an idea of the different sources of COI used at Swedish migrations courts, we get to know that judges have the authority to assess that the COI provided by the SMA can be ‘too old, or it does not give enough information’ (IT1). On the same issue, another judge explained:

[Regarding COI coming from the Country Information Unit] I think that there it is of course clear, it is still the SMA that has done that, but there it is not done in just, well there it is after all not about deciding how the SMA should look at a certain question […]. Instead, there it is a civil servant, who has this as their job and who happens to be employed by the SMA, who has sort of trawled over all sources that can be thought of and who tries to obtain this [information …]. I am inclined to view this as ordinary country information, although they in fact come from the SMA there as well. (IT5)

As the judge stated, information coming from the Country Information Unit is compiled by employees of the SMA. The external observer’s attention is drawn to the formulation ‘happens to be’ (IT5), which conveys the idea that it could be considered a coincidence that the SMA is also the employer of those people who are primarily responsible for producing and compiling COI. Actors within the Swedish migration bureaucracy tend to have the view that the Country Information Unit is a unit of the SMA that compiles COI in an independent fashion (Johannesson, 2017). In view of epistemic violence, this detail of the Swedish asylum system is at the heart of what I have called the institutionalised power imbalance (Joormann, 2019, p. 230) embedded in the encounter between the asylum applicant and the welfare state agency, which can be summarised as follows: Being the decision-making institution in the first legal instance, the SMA becomes one of the two legal parties in the second. However, when the SMA faces the applicant as the other legal party in a migration court (i.e. a court of administrative law), it is still a unit of the SMA that has produced and compiled most of the ‘facts’ about the applicant’s country of origin. Furthermore, and in contrast to criminal law, where it is the prosecutor—and not the accused—who has the ‘burden of proof’, asylum cases depend not only on how convincing applicants can tell their story but also how well-read in immigration law and COI their lawyers are (Joormann, 2020, 2019; see also Johannesson, 2017). The threshold of how well certain information must be established for it to become ‘probable’ (sannolikt, in Swedish legal terms)Footnote 5 is also conceived differently in asylum cases. It is lower in the sense that the ‘benefit of the doubt’,Footnote 6 as it has been re-defined for refugee law (see Sweeney 2009; Kagan, 2002), does not apply in the same way to the applicant in asylum cases as it does to the accused in criminal law (UNHCR, 2010). In turn, if experiences of danger, fear, persecution, and, consequently, the need for refugee protection, are denied as ‘not probable’, the respective process of asylum determination is marked not only by epistemic violence (see Spivak, 1990) but also entails the possibility of rejected applicants being deported and harmed by the physical violence that can occur during and/or after deportations.

Yet there is also internal criticism. Several of the judges I interviewed mentioned that there was a debate about the role of the highest instance (the MCA) regarding asylum cases, and COI in particular. As of today, the MCA’s principal task is to produce legal guidance for the lower instances. This guidance, in the form of precedents, should clarify how relevant regulations, including national, EU/international statutes and case law, and other substantive and procedural rules, should be applied by the Swedish migration bureaucracy (UtlL, 2005, p. 716, Chapter 16, § 9–12). As one of the judges I interviewed put it, creating precedents is important ‘so that it becomes a unitary application of the law’ (IT4). However, the internal critics suggest, the MCA could also provide guidance concerning the validity of certain COI. For instance, the MCA could review an asylum case and focus on the question of whether the lower legal instances compiled the most nuanced and up-to-date COI. Even a report issued by the Swedish Government stresses the possibility to enlarge the mandate of the MCA in this way and concludes that such a reform could ‘promote legal certainty, the rule of law, legal safety and security’ (SOU, 2009, 56, p. 23).

There are further indications that there is room for improvement regarding the certainty of decision-making in Swedish asylum cases. A judge criticised not only COI, but also other information disseminated by the SMA:

I can be quite critical about what [the SMA] sometimes writes […] among other things […] a legal instruction regarding credibility and reliability assessments, which is published online on Lifos.Footnote 7 And I have to say that this is difficult to get through because it is messy and it is—it is not unobjectionable, regarding neither form nor content, really. (IT6)

Another judge stated that:

[…] I have in fact been in the situation that, sometimes, I thought that I don’t agree with this, what they [the SMA] write in their legal position. But they do include a good review of [legal] practice in an area, and from this practice, the SMA draws its own conclusion, which of course is usually something that one can agree with, but it is still an input from a legal party in some sense. (IT5)

The two interview excerpts add important aspects to the questioning of the quality of the information produced and disseminated by the SMA. When information is provided by the SMA—even though some internal actors might want to think of it as objective and neutral—a judge did not forget that this was ‘still an input from a legal party in some sense’ (IT5). In other words, the judge considered the possible interests behind the injection of information coming from the SMA. Important for the analysis in this chapter, in contrast to the COI produced and compiled by the SMA’s Country Information Unit, the judge clearly identified a ‘legal position’ provided by the SMA as input from a legal party. In this way, taking into account the origin and possible interests behind the insertion of certain information into an asylum case, can be analysed as a form of top-down agency that counteracts the epistemic violence generated by the power position of the SMA; the welfare state agency which is not only one of the legal parties in court, but which also ‘happens to be’ (IT5) the institution whose Country Information Unit is the main producer of supposed-to-be objective knowledge about refugee-sending countries.

Language, Representation, and Epistemic Violence

A judge highlighted that, besides the quality of different pieces of information, the language in which they were written could be a crucial factor:

[…] there is an inequality in that respect between different, what should we say, source-compilers. [If] one can compile their sources in English, or for our part in Swedish, or in a Nordic language, one indeed lies far ahead of those who have done that in French, I would like to say. I know that there are [Swedish] jurists who are proficient in French and read decisions in French from the European Court and so on, I know that—but well, one can still generally say that the country information that is prepared in English or Swedish has an advantage in this respect. (IT6)

As a follow-up question, I asked whether it could be needed to consider, for example, information written in Japanese. With this spontaneous question, I not only made use of the advantages of conducting a semi-structured interview but also revealed some of the colonised thinking that apparently influences my way of seeing the world. Why did I ask about information written in Japanese and not, for example, Kurdish? In the split seconds of formulating a follow-up question, I must have found Japan as the first country that I could think of in the category of ‘non-Western yet refugee-receiving’. The historical context of Japanese imperialism and the practice of paying for refugee resettlement in other countries rather than receiving asylum seekers in Japan (Tarumoto, 2019) was not on my mind at that moment. In response, the judge stated that there was no access to information in Japanese (or translations thereof) and added: ‘Myself, I have tried to read in Dutch at some point, because I know a bit of German, but one cannot manage this’ (IT6). Besides the ignoring (Spivak, 1990) of potentially relevant information in non-European languages, the expectation of being able to read COI in Norwegian was criticised by another judge:

[S]wedish and English are indeed the most common, and then Norwegian. And I actually think that this is strange, country information that is not translated. Because we sit, well, apply very important text and this not in our mother tongue, and we are after all quite many judges who are not, sort of, entirely bilingual and it could indeed be worth to translate. I have, in fact, thought about this serval times, and sometimes Norwegian can be more difficult than English I can say, it is not so easy […] one should not be forced to sit and feel insecure. (IT8)

The judge continued, seemingly rather upset:

Yes, I often think about this, I can become really angry that it has to be like this. It is a Swedish process, but we have to sit and read in English and decide about people’s, well not life and death, but sometimes actually, in another language than our mother tongue […] In fact, I think that this is something that someone could do something about. (IT8)

In addition to this rather straightforward demand for change, the judge not only mentioned the problem that there were not (professional) enough translations of (potentially) important information in other languages than Swedish but also identified shortcomings regarding the production of COI—sometimes undertaken by Swedish civil servants who set out on trips to refugee-sending countries:

[…] certain country information, after all, can be based on what two people out in the forest state. Yes, a bit like that, not really. But in countries about which it is difficult to get information, country information can at least partially be built on quite weak observations, but this is what is accessible, quite simply. One has maybe collected, sort of, what many say, field workers in Africa who have come across people, sort of. (IT8)

Important to acknowledge when looking more closely at this excerpt about ‘what is accessible’ is the implicit omission—and, thus, the silencing (Spivak, 1990)—of the information about their countries of origin that asylum applicants themselves can provide Swedish migration courts with. Beyond Sweden, Rosset (2019, p. 36) shows in his study on the use of COI that the Swiss bureaucracy also produces COI about Somalia. Having analysed COI in the contexts of several European welfare states and their migration bureaucracies, Rosset (2019) finds that European countries in general tend to prefer their bureaucratic knowledge production rather than the information provided by the asylum applicant.

Several of the judges I interviewed identified significant shortcomings regarding the practice of Swedish bureaucrats travelling to refugee-sending countries in order to produce COI. Because of such shortcomings, the state employees who went on these trips sometimes applied questionable strategies, as one judge described it: ‘[O]ne does try to compensate for this by cutting together several such fragments in such a case, maybe from different countries’ (IT8). Amplifying this already stark description of how COI could be produced in practice, the judge became more explicit when criticising the problem of not being able to gain enough knowledge about certain countries:

[…] Somalia is a quite good example, where one has, at least previously, been doing such investigative trips which—sort of, there is not much more country information than [from when] the SMA did this trip and came across people who said this and that. It is indeed difficult when there is not so much foreign representation in a country, then one does not get to know that much. (IT8)

The judge continued, about Somalia, and about the lack of representation:

[T]his investigative trip which the SMA did […]. There was, after all, almost no one who had lived and worked in Somalia. It is very difficult to evaluate a country where one is not inside to observe and see. Then it indeed becomes like that, easily, yes one has to take the information that is there. (IT8)

Reading the two quotes above, it is important to keep in mind that such statements about ‘information that is there’ refer to COI that Swedish judges consider as credible (enough) regarding its sources and accessible (enough) regarding its language. By contrast, information that is potentially relevant, but deemed not to be credible and accessible enough, is in this sense ‘not there’. In consequence, if relevant information provided by the asylum applicant is ignored, silenced, or denied, this is another example of epistemic violence (see Spivak, 1990).

Discussion of Key Findings

A government report (SOU, 2009, p. 56) as well as research conducted by social scientists and legal scholars (e.g. Asylarkivet, 2022; Elsrud et al., 2021; Johannesson, 2017; Wikström and Stern, 2016; Wettergren and Wikström, 2014; Lundberg, 2011) criticise the Swedish migration bureaucracy, its asylum determination procedure, and its handling of COI. Given the lack of access to well-informed, in-depth knowledge about refugee-sending countries, as problematised by several of the judges whom I have quoted in this chapter, the Swedish asylum system tries to compensate by letting them use COI produced in other Nordic countries, the US, or UK. A consequence of this practice is that Swedish judges regularly ‘apply very important text’ written in languages that are not their ‘mother tongue’, which leads to the problem they can ‘feel insecure’, as it was expressed in one of the interview excerpts analysed above. Several of the judges quoted in this chapter also identified a lack of guidance regarding COI and the crucial question of how to assess the situation in refugee-sending countries. To re-visit what was stated by one of them: When a judge does not have much more information to go on than what was collected by employees of the SMA who went to Somalia and ‘came across people who said this and that’, it becomes difficult to ensure the certainty of law’s internal operations and the uniformity in legal decision-making. In extreme cases of building decisions on clearly questionable information, the Swedish asylum system cannot truly claim that it abides by the rule of law (see also Elsrud et al., 2021).

The problem that most COI is either produced or complied with by bureaucrats adds to the power imbalance between the migration bureaucracy of a wealthy welfare state and asylum applicants from refugee-sending countries (van der Kist and Rosset, 2020). This issue is at the core of the institutionalised power imbalance (Joormann, 2019) that can cause epistemic violence (Spivak, 1990) in the single legal case. The identification of the respective power relations—between people seeking asylum from the Global South and decision-makers in the Global North—leads the observer to detect parallels with the colonial bureaucratic violence of earlier historical periods and other geographical contexts (van der Kist et al., 2019; see Duran, 2006; Said, 1978).

Given the findings summarised above, Krause (2021, p. 24) aptly highlights that the history of the international refugee regime ‘[…] calls into question the liberal-positivist notion of legal neutrality, equality and objectivity, its fair, uniform and universal application worldwide’. Notwithstanding the improvements that have taken place in refugee law since 1951—for example, the recognition of gender-based violence and the persecution of sexual minorities as legally valid grounds to seek asylum (McAdam, 2017)—the impacts of colonial power relations between actors from the North and South are still influential (Mayblin, 2014). In a word, ‘[…] colonialism is manifest in the western vision of international refugee law […]’ (Odhiambo-Abuya cited in Krause, 2021, p. 24, emphasis added). Conceptually speaking, Spivak’s (1990) notion of ‘epistemic violence’ has proven to be useful in analysing (1) the (post)colonial power relations (between Global North and Global South, decision-makers and applicants), and (2) the silencing, ignoring, or denying, of knowledge claims made by the applicant.

Conclusion

Focusing on the adjudication of asylum cases in Sweden, this chapter shows that epistemic violence (Spivak, 1990) takes place when asylum seekers encounter the migration bureaucracy of a wealthy welfare state in the Global North (beyond the Swedish context, see e.g. van der Kist and Rosset, 2020). My interviews with judges at Sweden’s migration courts include several points of criticism concerning the organisation, origin, and quality, as well as the language, of the country of origin information (COI) that is applied when they adjudicate. This information is of crucial importance for the lives of vulnerable people who seek refugee protection and their access to certain (and currently changing) social rights granted by the Swedish welfare state (Giansanti et al., 2022). Given the possibility of refugees gaining the legal right to reside in Sweden and, thus, the social right to access welfare provision, with its focus on COI, this chapter enables the reader to question the asylum system’s claims that it guarantees legal certainty and abides by the rule of law (see also Elsrud et al., 2021).