Vulnerability, agency and asylum law

Dr Marie Jacobs, Ghent University

When talking about asylum seekers and refugees, people often highlight their vulnerability. This seems straightforward: after all, they are people who fled their country of origin, who lived through (fear of) persecution in the form of war, discrimination or other tragedies. Moreover, they also often faced horrible realities throughout their travel journeys. We all know the stories of refugee “camps” in Lybia, of crossing the Mediterranean Sea in overcrowded boats. Academic literature, in this regard, has also foregrounds the institutional production of vulnerability in the host country. Put simply; if people were not yet highly vulnerable when they arrived in Europe – or, for the purposes of the article my co-author Prof. Katrijn Maryns  and I published in the Journal of Law & Society – Belgium, they are often rendered vulnerable throughout the asylum procedure. This institutional chain of events, is high-stakes. It determines whether people are granted protection and the right to stay in Belgium. The procedure is often lengthy and this instigates feelings of uncertainty. Asylum seekers are asked to prove their identity and their refugee stories. Often, they are not believed: questions of credibility and authenticity are at the heart of many application rejection decisions. This disbelief is often experienced as harmful or even traumatising. 

Characterising asylum seekers and refugees as vulnerable victims also highlights the legitimacy of their requests for international protection and foregrounds their need for support and help. In doing so, it echoes a distinction between forced and voluntary migrants that is fundamental to asylum law: helpless people who had no other option but to leave are considered “deserving” of asylum, whereas people who made a choice and displayed agency in the process of moving are considered “fortune seekers” – their applications are denied. Asylum seekers often have to prove their vulnerabilities and the forced nature of their flight throughout the asylum procedure. This means that the system encourages asylum seekers to play into pejorative stereotypes of helplessness and reinforce existing narratives of dependence in order to be granted asylum. Moreover, agentic moves or resourcefulness have to be downplayed for the purpose of clearly fitting into the government categorisation of what it means to need international protection.

Notwithstanding the fact that asylum seekers are of course in a vulnerable position and that they are often characterised as being so for humanitarian reasons, this one-dimensional label of being “a vulnerable victim” is problematic. It is, for one, essentialising. It reduces asylum seekers and refugees to one aspect of their identity and obscures the ways in which they have motives, hopes and plans. In our JLS article entitled ‘Agency and vulnerability in the field of immigration law: a linguistic-ethnographic perspective on lawyer-client interaction’ (Vol 49, Issue 3, 2022), my co-author and I illustrate this by means of two case studies. For this blog post, I will draw on personal experience for the same purpose. I am the guardian of a non-accompanied refugee minor. The asylum seeker is alone in Belgium, he is a minor, he has lived through horrible realities and is – at the moment of writing this – unsure about his future in Belgium.  It is fair to say that this makes him vulnerable. Maybe even a vulnerable case, par excellence. Yet, listening to his stories, answering his questions, seeing him navigate this new country with its bureaucratic rules and new language, witnessing him drawing on a network of people (back home, as well as in the refugee centre),it is striking how much more of an adult he is than any other teenager I know. He is incredibly agentic and unbelievably resourceful. Describing him as a vulnerable is not incorrect but it is incomplete.

Asylum law and its categories of “deservingness” rewards passive victimhood, which makes it understandable that these are the facets of asylum seekers lives’ that are emphasised by lawyers throughout the asylum procedure. It is important, however, to recognise how outside of these bureaucratic categories (or, in other words, in reality), agency and vulnerability form a continuum. Concepts like choice, constraint, voluntariness and autonomy have to be deconstructed. Researchers should lead this paradigm change by unpacking the existing binaries. One way to do so, which Katrijn and I exemplify in our JLS article, is by looking at authentic interaction to see how vulnerability and agency play out in practice. I do not want to be naïve in this regard, changing laws and legal frameworks, is a long-term process and there is little political drive for social change when it comes to the subject of migration. I believe, however, that in the high-stakes context of asylum law, it is important that we, as researchers, continue to show that the categories which govern migration management do injustice to the lived realities of asylum seekers. 

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