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

ABSTRACT

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

KEYWORDS:

• Migration-law implementation
• procedural justice
• transparency
• illegibility
• street-level bureaucracy

Introduction

In the context of migration and asylum law, many migrants¹ are forced to endure administrative procedures characterised by long waiting times and unpredictable outcomes (Gill 2009). In Germany and Switzerland, procedural safeguards are supposed to guarantee due process, the right to appeal and access to information about the legal procedures people are involved in, yet – as we argue – systemic obstacles hinder the implementation of such safeguards when migration and asylum laws are implemented, and thus challenge procedural justice. On the one hand, migrants’ active cooperation in legal procedures – including the disclosure of intimate information – is explicitly expected, and lack of cooperation has severe consequences. On the other, bureaucratic encounters are fraught with technocratic language, a lack of clear instructions and excessive paperwork, which affect people’s capacity to cooperate and to navigate migration laws. Though both citizens and migrants struggle with such experiences, we argue that these struggles are particularly accentuated when they concern the latter. We build on multi-sited ethnographic research in Germany and Switzerland and focus on the asymmetrical negotiations (Eule, Loher, and Wyss 2018) between street-level bureaucrats and migrants.

Procedural justice is often defined as state clients’ perceptions of just treatment in legal procedures (Nagin and Telep 2017) and, as such, is considered essential to legitimising state practices. The perception of legal justice includes feeling informed about legal procedures and decision-making processes, as well as being treated in a non-discriminatory and respectful way (Cheng 2018; Tyler 2017, 2011) – conditions which, we argue, are rarely met in practice. Following recent calls to study procedural justice with regard to the concrete implementation of laws (Nagin and Telep 2017, 8), we turn our gaze away from perceptions of procedural justice and add an analysis of the actual implementation of procedural safeguards to the current body of research. If such safeguards are not systemically guaranteed, procedural justice inevitably erodes as we understand the guarantee of procedural rights to be a prerequisite for clients of the state to experience procedural justice. Hence, our contribution concerns the gap between legally enshrined procedural rights and the implementation of these rights in administrative procedures concerning migrants. Through this lens, we explore how different structural factors can negatively affect procedural justice during law implementation. We focus on how safeguarding transparency for migrants is curtailed for the following three reasons.

First, the implementation of migration policies often remains rather illegible because of frequent policy changes and a high number of regulations that affect practical implementation (Eule et al. 2019; Gill and Good 2019). Combined with bureaucrats’ discretionary power and the intricacies that characterise migration law, migrants – and even state agents (and further actors in the migration regime) – express the difficulties they experience in anticipating how laws work and keeping up with the frequent changes (Jubany 2017; Dahlvik 2018). This difficulty to read how laws work is finally exacerbated by the competing interests of the multiplicity of actors working from within or for – and thus co-constituting – the ‘state’ (Thomas and De Sardan 2014; Kalir and Wissink 2016).

Second, the general trend towards acceleration in migration enforcement allocates limited time for information to reach migrants on the ground, leaving them uninformed about legal procedures and thus aggravating the illegibility within the migration regime. We argue that the pressure resulting from this acceleration of procedures makes it challenging for street-level bureaucrats to follow protocols that aim to ensure information is provided to their clients (Alpes and Spire 2014). Often, information is simply given for the sake of it, and lacks the necessary detail for migrants to comprehend what is going on.

Third, we argue that migration law is implemented in an atmosphere of suspicion that pervades the entire system – and that becomes particularly pertinent in individual encounters between migrants and state actors (Jubany 2017; Borrelli, Lindberg, and Wyss 2021). Suspicion has a negative impact on trust between migrants and state officials, as well as on transparent policy implementation (cf. Schafer 2013 on police work). While state officials often distrust the information provided by migrants, migrants often feel that the administration is not acting in a legitimate way, which is why they lack confidence in a fair process (Ryo 2015). We contend that this mutual suspicion makes it difficult, if not impossible, to perceive legal procedures as being justly implemented.

In the following, we first outline how procedural justice has so far been considered in studies on migration-law implementation. We then present general procedural guarantees such as due process or legal certainty, the right to information and to be heard, as constitutional aspects of procedural justice. Subsequently, we examine our ethnographic data, which consists of observations in Swiss and German migration-law implementation and interviews with different actors that are involved in cases concerning migrants with precarious legal status or migrants holding a residence permit but who are at risk of losing it due to social assistance dependency. We illustrate how structural issues limit the ability to guarantee procedural safeguards. We conclude that such an examination is relevant to the study of non-citizenship (Tonkiss and Bloom 2015) as procedural justice is curtailed in migration-law implementation – and thus impinges on non-citizens’ rights.

Procedural justice in migration law

Literature on procedural justice has developed in the field of social psychology, particularly in research on management and the work environment. These early studies were interested in how people’s perception of procedural justice impacts on their identification with their workplace and their motivation to work (Tyler 2017). A similar approach was later transferred to the study of policing to explore whether perceived procedural justice affects how individuals cooperate with authorities – specifically, the police (see Worden and McLean 2017). Procedural fairness – such as non-discriminatory and equal treatment – is understood to be important for ensuring the legitimacy of public institutions (Pedersen, Stritch, and Thuesen 2018). Various studies show that if people experience just treatment, and consequently perceive legal procedures as legitimate, their compliance with legal frameworks increases (Kirk et al. 2011). From this social-scientific perspective, procedural justice is understood to be achieved when decision-making follows the rules of fairness – which include neutrality, transparency, factuality and lending a voice to those whose fates are decided upon – and when interpersonal encounters with state agents take place in a respectful and dignified manner (Cheng 2018; Tyler 2011). A further essential procedural requirement, which is also legally enshrined, is providing information on administrative or legal procedures to the people involved in those procedures (Ryo 2015).

As pointed out in the introduction to this special issue (Andreetta, Vetters and Yanasmayan 2022) and noted by a number of lawyers, procedural safeguards have long been neglected in the context of migration law (Tsourdi 2019), leading to a ‘notorious exceptionalism regarding immigration proceedings’ (Bast, von Harbou, and Wessels 2022, 76). While over the past decades procedural guarantees have been increasingly incorporated into German and Swiss asylum and immigration law (not least as a result of their Europeanization and requirements by the European Convention of Human Rights, ECHR), we still see particular challenges when it comes to implementing these laws in the context of migration.

Studies on migration-law implementation have slowly started to consider procedural factors. This body of work explores the procedural complexity of administrative decision-making processes that allow for discretion (Gaibazzi 2017), or discusses how decision-making is fraught with – and impaired by – suspicion (Lundberg 2020). Other studies highlight the practical hindrances bureaucrats experience when seeking to implement decisions; for example, deportation orders (Rosenberger and Küffner 2016). However, to date – as the editors of this special issue also argue – procedural justice has not been a central focus of this strand of work. Research exploring how procedural justice, as a legal principle, is constricted during law implementation is also rare (Nagin and Telep 2017). Instead of exploring whether clients of the state perceive legal procedures as just and thus comply, we concentrate on systemic aspects of law implementation that render just treatment – particularly maintaining general procedural guarantees in administrative procedures – challenging, or even impossible.

We concentrate on migrants whose situation is defined by legal and/or economic precarity. This includes migrants with precarious legal status, such as rejected asylum seekers and non-citizens who are dependent on social assistance and therefore at risk of losing their permits. Following Tonkiss and Bloom (2015, 845), we think that a focus on migrants, and the condition of non-citizenship ‘as a situation of conditionality and contingency’, facilitates understanding of ‘the meanings of membership, rights and the State’. When migrants enter the pathway to citizenship, they initiate legal procedures and claim their rights; for instance, by alluding to their need for protection, their right to family reunification or their contribution to a country’s economy. We thus understand citizenship as a continuum and process (Procacci 2001; Isin and Nielsen 2008) that includes a range of individuals, holding different kinds of rights, in relation to their presence in a state.

In studying whether procedural safeguards are maintained within state interactions with migrants, we are interested in whether these safeguards support the possibility of claiming substantive rights (Bast, von Harbou, and Wessels 2022, 75). We look at how migrants’ rights claims are processed within migration administration, and argue that the legal frameworks and organisational structures impair procedural justice for those considered as non-belonging (Thomas 2016). This is partially a result of the complex and fragmented nature of the state itself, which we understand as being a site of continuing construction and as made up by different actors and institutions competing for legal authority (Gill and Good 2019; Thomas and De Sardan 2014). This is in line with how critical migration scholars conceptualise a migration regime that is in constant flux and under construction, consisting of a complex assemblage of laws at different political levels as well as of state and non-state actors involved in processes of negotiation, adaptation, and contestation (Pott, Rass, and Wolff 2018).

While many of the factors we consider would also be applicable to the implementation of criminal and other laws, we think the dynamics we discuss are particularly accentuated in the field of migration for three main reasons. First, it has been shown that – given the strong politicisation of persons’ mobility – migration law continuously undergoes a comparatively large number of legal changes (Eule et al. 2019, 41 f). Second, several attempts to accelerate legal and administrative procedures have been introduced to reduce costs, impede the sociolegal inclusion of newcomers and prevent alleged abuses of social services. Third, migrants – particularly those from non-wealthy backgrounds in non-European countries – are ascribed and confronted with racialised, often pejorative stereotypes, which feed into bureaucrats’ suspicion; pressure from the general public and politicians to close borders to newcomers aggravates such system-inherent suspicion, and can thus be expected to be higher than in encounters with citizens.

General procedural guarantees as a constitutional aspect of procedural justice

Procedural guarantees or safeguards are often enshrined in international laws (e.g. ECHR, arts 5.2, 6.3a, 45) and in national constitutions (Federal Constitution of the Swiss Confederation, Art. 29ff; Basic Law for the Federal Republic of Germany, arts 1, 1.3, 3, 3.1, 19.4) affecting all legal sub-fields. They concern, for instance, the ability for individuals to appeal, the language used in procedures and the ways how information is supposed to be shared by state officials with their clients. In EU asylum law access to information should be guaranteed to applicants for international protection:

[They] shall be informed in a language which they understand or are reasonably supposed to understand of the procedure to be followed and of their rights and obligations during the procedure and the possible consequences of not complying with their obligations and not cooperating with the authorities. (Chapter II of Directive 2013/32/EU)

Both Germany and Switzerland thus need to specify these procedural safeguards in their field-specific laws (e.g. Swiss Federal Act on Foreign Nationals and Integration [FNIA] 2019, Art. 73, para. 3a; German Residency Act 2020, Art. 62, para. a, section 5), whereby asylum and immigration law are known to provide for particularly restrictive procedural rights (e.g. shorter deadlines, more obligations to cooperate, see FNIA, Art. 90; Swiss Asylum Act 2022, Art 8), which make effective legal remedies more difficult (see Schlegel and Achermann 2019).

State agencies follow internal administrative guidelines explaining how to interpret these procedural regulations and officials are obligated to introduce measures that allow their clients to become sufficiently knowledgeable about their procedures and the legal remedies available to them. At different levels of legal regulation, substantial attention is thus afforded to procedural rights. Yet, in addition to restrictive tendencies in procedural rights in the context of asylum and immigration law, we argue that there are several systemic obstacles that hinder the implementation of these obligations in practice, leading to additional structural discrimination against migrants in precarious situations (see also Gärditz 2011).

Studying migration-law implementation: Methods and data

In contrast to much experimental and quantitative research on procedural justice (e.g. Nagin and Telep 2017), we derive our material from ethnographic research, including participant observation, interviews and policy analysis.

Our data was collected between 2014 and 2021 in Germany and Switzerland, and stems from two research projects focusing on different dimensions of migration-law enforcement and state officials’ decision-making. The first project studied the contested control of persons whose presence in Europe was deemed illegal. We examined bureaucratic practices around detention and deportation, conducting interviews in migration offices, with border police, detention-facility staff and NGO employees, as well as observations of encounters between different actors (Eule et al. 2019). Understanding ‘the state’ as made up by different actors, we find it essential to consider a wide range of actors, including state officials or legal counsellors who partake in legal discourses and migrants who experience (and try to contest) the implementation of laws that directly affect them. Such a holistic perspective is necessary to explore whether procedural safeguards are actually guaranteed in practice and to understand situations, in which procedural safeguards become eroded in practice (see also Pekşen 2022).

The second project focused on the intersections of social and migration policies and studied how dependency on social benefits affects the legal status of non-citizens with residence permits in Germany and Switzerland as it might lead to the loss of permits.² The data set includes observations in Swiss migration offices and social services, and interviews with migration office staff and legal counsellors in both Germany and Switzerland, social services (in Switzerland) and job centres (in Germany). The latter two institutions are responsible for distributing financial support to individuals and are required to check the residency status of claimants, as dependency on state support might affect non-citizens’ residence permits.

We think a combination of these data sets is insightful. On the one hand, both projects share similarities regarding the actors we interviewed and the underlying research questions. On the other, the two projects complement each other, as they look at a variety of non-citizens and their different stages of claiming and performing citizenship. Thus, combining these two projects enables us to study what kind of systemic obstacles, in relation to procedural rights, marginalised migrants encounter on their fragmented pathways to citizenship. This is supported by the similarity of results that we found in the two presented country contexts. Both Switzerland and Germany, have a significant migrant population and are federal states that allow for decentralisation and increased layers of actors that contribute to the shaping of migration policies, but also share similarities regarding the processing of migrants with precarious legal status and residents depending on social assistance. While Germany is part of the EU, Switzerland is bound to more than 200 agreements and part of the Schengen Area. While we do not strive for a clear-cut country comparison, we believe that our focus on practices and street-level encounters during migration-law implementation is essential to understanding why legal frameworks often cannot sufficiently guarantee just procedures. This has been clearly shown in both countries of research.

Limitations to transparency in migration-law implementation

As transparency is a cornerstone of fair procedures that is indirectly built into legal framework at different levels (through general guarantees designed to ensure the flow of information and the rights to appeal and be heard), we will now zoom in on how it de facto plays out in practice and how it is shaped by particular dynamics within the migration regime. Elsewhere, we have described how bureaucratic procedures and their outcomes are often experienced as unpredictable, arbitrary and rather illegible by those involved (Eule et al. 2019; see also Jubany 2017; Gill 2009). The widespread discretionary and informal practices, as well as an uneven implementation of law, make it hard to anticipate what decisions will be taken. In the following, we push this argument further by demonstrating how such illegibility within the migration regime affects procedural justice.

Legal changes and intricacies

In our research with migrants holding a precarious legal status, it became obvious how challenging it is for them to keep up with the specificities and requirements of the laws concerning their individual cases (Wyss 2022). Migration law changes at a comparatively high speed, making it difficult even for bureaucrats to keep up with all the revisions, as we were repeatedly told during our research. Fast-changing legal frameworks add to the lack of transparency experienced by different actors; not only rights claimants but also bureaucrats constantly need to adapt to, and become informed about, the legal changes they are tasked to implement (Lahusen and Schneider 2017). The following quote from a legal expert working for a major German welfare association that is not formally part of the state but is involved in offering migration-related services, including legal aid, offers insights on this networked field of state and non-state officials:

Interviewer: Do you have a little bit of an oversight on how often legal changes occur? […]

Legal expert: It is extremely quick, and I believe that this is a severe issue and practical problem. I […] tried to trace how often legal changes within the field of migration occurred on average within the past years. […] For the last two election periods […] it reached the following average for legislative procedures: Every two to three months. That is a serious problem. The field of migration law is constantly being revised […]. And I think they [the migration offices] basically cannot adjust the technical instructions and administrative instructions so quickly; they cannot train people to implement it properly. I know many people who have been in the field for years and who, and I include myself in this, can hardly keep up with it. I gave up buying text collections of law books many years ago. […] I gave up to even think about buying the text collection, […] because in the moment you leave the shop, single norms have already changed. […]. And that’s a real problem because this particular field of law is so complicated [schweinekompliziert] anyway. Well, you have the intersection of international law, European law, national law, administrative instructions, you have incredibly complex interfaces. […] You have to keep an eye on all of that. And when things change every two or three months […]: I think it is very error-prone, and I say that without criticising the authorities. In many cases, I don’t think that case workers are even able to achieve that [keeping up with changes]. (Interview 2021)

Apart from pointing to the general intricacies of migration laws, one of the main challenges our interlocutor identifies is the cadence of legal changes, which renders it difficult for state actors to sufficiently familiarise themselves with relevant policies. A senior staff member of a German job centre emphasised that such unfamiliarity with laws affects legal procedures and fosters legally arbitrary and dubious decisions. She described how they coped with recent changes and the lack of precedent cases by ‘trying out’ and ‘testing’ (Job centre 1, 2021; see also Eule et al. 2019 on tinkering with the law). Both interviewees mentioned that making the law accessible to frontline staff necessitates many steps, and is encumbered by the slow pace that characterises administration in general. The translation of laws into regulations takes time and impinges on the principle of legal certainty.

Another issue the legal expert highlighted is that laws change on multiple levels and affect other policy areas. Not only European and national law but also regional guidelines need to be adapted on each of these levels. The more significant the change, the more successive adjustments need to be made, which also points to authorities’ mutual dependence. The senior job centre employee framed it the following way:

‘Well, the Federal Labour Office only changes our regulations once they receive instructions from the Federal Ministry of Labour and Social Affairs or when they receive decisions of the Supreme Court.’ Such adjustments could however take years, ‘and that is always bad, right? What do we do in the meantime? In case of doubt, we knowingly issue unlawful decisions [im Zweifel wohlwissend, rechtswidrige Bescheide erlassen] – if yet nothing has changed in the guidelines.’ (Interview 2021)

She referred to decisions taken at the intersection of migration and welfare law, which relate, among other things, to changes regarding the rights of EU citizens – a field described as particularly difficult to grasp due to European regulations interfering with national laws. Generally, if ‘it happens that law changes and nobody really knows how to proceed’, as the senior staff member framed it, the legal and administrative units share ideas and experiences to establish (new) procedures, which will then be tested and later reviewed with the legal unit. State actors are thus required to handle new laws creatively and adjust their working guidelines, which again increases the opaqueness of decision-making processes for their clients. As such, not only are the legal processes complex but state agents’ decision-making also becomes largely unpredictable, because they are pushed to make up for unclear and fast-changing laws with discretionary and ad-hoc decisions.

Such systemic obstacles are not captured by procedural safeguards, which only focus on individual encounters between clients and bureaucrats, attributing rights to both sides. Due to the aforementioned structural factors, however, individual safeguards might become ineffective. The right to be informed can only be granted if legal and procedural certainty can be given; yet quick legal changes undermine this.

Law implementation thus often happens on highly uncertain grounds; state actors themselves need to find ways of navigating the law, which – unsurprisingly – makes it even harder for those whom the law targets to anticipate what might happen next. As such, the fast-changing nature of the law contributes to illegibility within the migration regime and renders the guaranteeing of information flows and thus transparency, very difficult. Legal changes thus present a barrier to ensuring procedurally just practices. We will now take a closer look at how speed also challenges bureaucratic procedures on the ground.

Acceleration of procedures

Time has been shown to be an important aspect of migration governance (Alpes and Spire 2014). In Europe, there is a general trend to speed up asylum procedures (Cwerner 2004; Farahat 2019), reflected in both policy-making and everyday street-level bureaucratic practices. Fast decision-making and law enforcement are considered signs of political success; for instance, when asylum cases are quickly processed or deportations are swiftly enforced (Griffiths 2014). While the previous section showed how a lack of transparency arises because of the speed at which laws change, not allowing on-the-ground practices to adapt, we argue here that speed is also inscribed as a value into the respective regulations and laws.

After 2015, both Germany and Switzerland revised their asylum systems, with the main aim of procedural acceleration (Fedlex 2014; ProAsyl 2015). The German Asylum Procedure Acceleration Act (2015) and Switzerland’s revised Asylum Act (revised in 2019) allowed speed to become directly applied as a value to the bureaucrat–migrant interaction (Farahat 2019; Pörtner 2021; ProAsyl 2016). This draws attention away from the individual case and towards the state’s interest in efficient procedures. On a political level, Germany and Switzerland justified the acceleration with both humanitarian arguments (it reduces the limbo situation of asylum seekers) and administrative arguments (it promises cheaper and more efficient procedures; Pörtner 2021, 406). In both contexts, asylum seekers have been accommodated in federal asylum shelters, where they sleep and eat and where a large part of their asylum procedure is carried out. This spatial centralisation of the procedure promises to speed up the process. State authorities prioritise (and thus accelerate) asylum cases with low chances of success, so that they can quickly remove these ‘undeserving’ persons from state territory (Asylum Procedure Acceleration Act Deutscher Bundestag 2015; ProAsyl 2016; Pörtner 2021), arguing that this makes space available for those with a ‘well-founded’ claim.

The shortening of asylum procedures and concomitant time pressure make it difficult to identify persons with special needs or to make detailed investigations about individual cases. In a recent evaluation of the accelerated procedure, the Swiss Refugee Council (SFH 2020) concludes that authorities focus on speed at the expense of procedural fairness and quality. Similarly, a network of independent refugee-support organisations (Bündnis unabhängiger Rechtsarbeit im Asylbereich 2020) states that the speed of the procedures is too fast and challenges procedural safeguards, such as the right to appeal. The success rate of appeals increased, demonstrating that the State Secretariat of Migration’s case handling was undertaken without sufficient care (Surber 2020). Farahat (2019) voiced similar concerns regarding the German acceleration procedures, and argued that the opposing aims of acceleration and diligence undermine asylum applicants’ fundamental rights.

A similar pressure to speed up procedures can be observed regarding the Dublin Regulation, which defines which state is responsible for processing an individual’s asylum application. If the applicant moves to another state, that state has the right to deport them back to the country responsible for processing the case. Yet, the Dublin Regulation includes clear deadlines, before which these responsibilities need to be identified and the persons need to be deported. Staff in Swiss migration offices told us they often struggle with the pressure to process Dublin cases as they know that, if they are too slow, the responsibility for the cases would be transferred to Switzerland. Some case workers thus voiced guilt for causing ‘costs’ to the state when unable to implement a deportation procedure. The rush to meet deadlines often resulted in incomplete information being conveyed to ‘deportees’, summarised by phrases such as ‘Italy wants you back’ or ‘Germany asks for you’ (Swiss migration office staff 2017). This brevity and confusing dispersal of information startled deportees, some of whom, for instance, were not told what would happen to their belongings and whether they could take them on the flight (observations in migration offices 2017). Many of the documents they needed to sign were only provided in German or English, and explanations about what they were signing (entry-ban information; release of medical confidentiality) were only given in broken English (Borrelli 2023).

Similarly, in our research on German job centres, the time pressure that staff were under to integrate their clients into the labour market was tangible. The longer their clients did not work, the more difficult it would be for them to find employment. Swiss social service staff also voiced unease about rushing migrants into any kind of employment; they were aware of the pressure their clients felt because the amount and length of the social benefits they received endangered their residence permit (FNIA 2019, arts 62e, 63c). As a result, many of them were pushed into the precarious labour market – which, in turn, renders ‘sustainable integration’ difficult.

Another result of acceleration is the lack of personal encounters. While social workers only have time for brief appointments, migration office staff might not see their clients at all. Personal contact is essential to increasing procedural justice (Graaf 2021); yet in Switzerland, migration office staff who withdraws permits, rarely meet their clients in person and only offer a written ‘right to be heard’. Thus, their decisions are based purely on paperwork – not least because this allows them to deliver their decisions as quickly as possible. Some senior officials criticised this approach, and argued that a personal conversation might reveal details that could affect the final decision (Interview 2021).

This prioritisation of speed and productivity during bureaucratic procedures – partly a result of New Public Management reforms (Pörtner 2021, 357ff) – further affects the already highly asymmetrical encounters between state officials and their clients. The general trend towards acceleration in migration-law enforcement allocates limited time for information to reach migrants on the ground. Despite the acceleration of procedures, migrants are often forced to wait for decisions to be made, while being expected to always be available, even though often, nothing happens for a long time. Once a decision has been made, they have to react very quickly – whether to pack their bags (in the case of a pending deportation) or to organise a job and learn the local language (if they are granted a residence permit). In such ‘frenzied’ times (Griffiths 2014), there is little space to be heard or listened to, which negatively affects trust in such encounters with the state. Simultaneously, accelerated procedures combined with rapid legal changes reveal a systematic shift that values efficiency over individual case work. Individuals thus become objects of administration, and are categorised according to the success rate of their application.

Suspicion and detective work

In both Germany and Switzerland, citizens and foreign-national residents have the right to claim and receive social assistance. Access to state support, however, is controlled by social services, job centres and migration offices and often accompanied by a distrust towards applicants, particularly towards migrants, who are suspected of making unrightful claims. When people make claims to the state, they have to bring evidence to support their demands, while state actors often hold the role of detectives checking the rightfulness of claims by ‘digging deep’ (Affolter 2021).

Those depending on social assistance are particularly targeted by intrusive questioning, experiencing a lot of pressure from migration offices. Administrative procedures demand significant disclosure of individuals’ private lives – yet are not mutually transparent; non-citizen claimants must answer questions about the reasons for their unemployment and efforts to find work, while reasons for receiving a prolongation of a permit may remain obscure. Legal-aid counsellors criticised the often excessive and repetitive questioning that migrants are exposed to, reading such behaviour as a sign of aggravated suspicion concerning their clients’ deservingness. Being under the radar of the migration office, yet not knowing what information is evaluated and how, causes stress for recipients of social assistance. One man who depended on social benefits explained that, after answering the migration office’s enquiry, he remained unsatisfied regarding the type of questions that were asked. He never received any answers to his own questions, instead simply obtaining his and his family’s permit renewal, leaving him insecure about whether migration authorities have fulfilled their job with the necessary diligence:

Usually, each time we do a prolongation we go to the office and do a picture and give our fingerprints. […] My children and I already did this last year, but my wife did not. This threatens me too. […] Why did she not [need to] go to the office like every year? […] Is something wrong? Did they do something wrong? […] Did they forgot to tell her to come by? Until now, I have no idea. (Interview 2020)

Staff in social services and job centres explained that their clients are forced to ‘undress’ or ‘strip naked’ when applying for state support – metaphors used in both countries to describe the extent to which personal issues must be disclosed and claimants’ privacy is intruded on. Combined with partial or absent information that individuals receive on their case, the excessive requirement for paperwork and one-sided questioning reduces migrants’ felt sense of equity and respect (Van Ryzin 2011). In consequence, trust in authorities – a prerequisite for perceptions of procedural justice – is undermined. This lack of trust in authorities is a result of individuals’ impression that in public administration, decisions are made without authorities being transparent towards their clients about guidelines and rationales informing these decisions.

A similar lack of trust was also observed in Switzerland on the part of asylum seekers towards their legal representatives. Since the revision of the Swiss Asylum Act, asylum seekers are accompanied by legal counsellors, who provide their services free of charge and support applicants with their procedure (Pörtner 2021, 406 f). Although access to free legal aid had long been a central demand of refugee-support organisations, NGOs criticised that these legal counsellors are financed by the same state authority – and work under the same roof – as the state employees who make the asylum decisions (Bündnis unabhängiger Rechtsarbeit im Asylbereich 2020), adding to the illegibility within the asylum system. Accordingly, asylum seekers call the independence of their legal representatives in question, which negatively affects the formation of trustful relationships (ibid., 8 f).

Simultaneously, bureaucrats voice distrust towards their clients, which is linked to public discourses on migrants’ alleged welfare abuse and political pressure to remove those deemed undeserving. Assumptions of welfare abuse are based on patterns of behaviour that bureaucrats observe. For instance, clients who lack full-time employment over a prolonged period or an assumed unwillingness to take up any job cause suspicion, which affects case assessment in migration offices. While suspicion is a general modus operandi in many administrations (Borrelli, Lindberg, and Wyss 2021), we argue that it is intensified when migrants are involved; for instance, in asylum procedures, where suspicion has been shown to be a ‘guiding principle of decision-makers’ everyday practice’ (Affolter 2021, 4).

The welfare recipient we quoted above also felt that all migrants on benefits were lumped together and commonly approached as undeserving. He had the impression that state officials did not sufficiently consider their clients’ individual backgrounds, but instead acted according to prejudices that presumed migrants to be abusive, criminal or aggressive (Interview 2020), which in turn was related to the lack of personal contact between migration office staff and their ‘clients’.

Another systemic obstacle to the development of trustful relationships between state officials and their clients is the legal obligation of social services and job centres to report foreign-national clients to migration offices if they receive social benefits, respectively are unemployed (e.g. the Swiss Verordnung über Zulassung, Aufenthalt und Erwerbstätigkeit 2019, Art. 82b). Social-services staff explained that their ambivalent role between care and control affects their relationships with migrants; they seek to establish trustworthy relationships with their clients, yet must disclose sensitive information about them to migration authorities. Migration offices might request social services to write more detailed reports on clients’ reasons for welfare receipt and their efforts to find employment – reports these clients do not receive. Importantly, while some clients are perceived as cooperative by social services, migration offices might deem the level of their engagement as insufficient, resulting again in a lack of clarity that migrants have about expectations directed towards them, but also questioning the way cooperation is measured by different state authorities. A permit withdrawal initiated by the migration office can thus come as a surprise when clients have fulfilled all expectations of social services.

This distrust by state authorities is strongly connected to the generalising public discourses on ‘migrant welfare abusers’ (Demetriou 2018). A senior official at the Swiss State Secretariat of Migration framed it that way: ‘Is it someone who wanted to immigrate into the welfare system from the start? That is the core question, which one has’ (Interview 2019). Another migration office employee in Switzerland explained that migrants’ eligibility for social assistance is evaluated based on assessments by different authorities (Interview 2020). Here, suspicion towards foreign nationals’ alleged excuses for welfare dependency expands to concern other state offices and organisations, thus permeating the broader state apparatus. In the eyes of migration office staff, all other agencies might be welfare recipients’ potential ‘partners in crime’, as the following quote by a Swiss state agent illustrates: ‘Well, the more reports we have, the better we can evaluate the case’. She described how they sometimes also consider assessments of a client’s efforts to ‘integrate’ from competence centres for integration, which organise language classes. Yet she added that, in their office, they would rather listen to their ‘own‘ judgment, ‘because it has happened before that those reports [e.g. from competence centres and social services] did not match and that creates mistrust’ on their side (Interview 2020) – implying that they suspect other public services to be too ‘lenient’.

The increasing dispersion of state responsibilities makes it difficult to know, ‘from where […] responsibilities are exteriorised’ (Gill 2009, 219), but also which state actors are supposed to make sure procedural safeguards are maintained. Migrants are often approached as potential fraudulent claimants, who take advantage of welfare systems and abuse rights that are reserved for ‘citizens’ only. This is reflected not only in public debates and policies but also in everyday conversations among state officials.

Similarly, in the asylum system, protection seekers who do not possess identity documents arouse particular suspicion, as the following field notes from Switzerland illustrate:

A caseworker at a Swiss cantonal migration office screens through a file, sees that an asylum seeker claimed his papers were taken by a smuggler and comments: ‘Now, this I simply do not believe.’ In another instance, during a meeting with a rejected asylum seeker, the caseworker asks whether the man has a passport, which might enable authorities to speed up his deportation. The man denies, though mentions that he is in contact with his family and embassy. The caseworker turns to Lisa saying: ‘I assume that he is lying to me, everyone does.’ This is later on seconded by another colleague: ‘It is known that they all lie, and I would do the same, because otherwise I would be deported quicker.’ (Observations in a Swiss cantonal migration office, 2016)

This example, and the above quotes, show that distrust is built into procedures, discourses and everyday assessments of migrants’ cases, which often leads migration office staff to reduce further inquiries and support, thus abbreviating meetings with their clients that would potentially transmit relevant information to them.

Transparency and being informed are cornerstones of procedural justice. This includes being knowledgeable about the procedures one is involved in, which is a prerequisite for people’s cooperation. Yet in a culture of mutual suspicion and overall illegibility, it is hard to feel informed and knowledgeable, as there is a lack of trust – leaving clients in a continuing state of uncertainty. Skepticism and suspicion challenge the ‘careful, legitimate, and accurate assessment of individual applications’ (Bohmer and Shuman 2018, 168). This ‘moral economy of suspicion’ (D’Aoust 2018) permeates the migration regime and negatively affects mutual communication of information – and thus also the legal requirement of due process. Not knowing how documents are evaluated or why certain documents are requested, while also being controlled by multiple state authorities, leaves individuals in a state where procedural justice seems questionable. In consequence, suspicion becomes a generic and systemic obstacle to fair procedures. The overall fear of abuse has created a system that accelerates legal changes and procedures, and that evolves in an increasingly restrictive environment, often with the aim of preventing non-citizens from engaging in acts of citizenship.

Conclusion

Studies on procedural justice in the field of public administration have mostly looked at (non-)citizens’ perceptions of police work (Schafer 2013; Nagin and Telep 2017) and court procedures (Cheng 2018). This strand of literature describes procedural justice as resulting from people assessing state decision-making as fair – non-discriminatory, fact-based and transparent – and from feeling treated with respect and dignity during bureaucratic procedures (Tyler 2011). While these studies foreground ordinary people’s perceptions of legal procedures, we have focused on structural factors that negatively affect the implementation of procedural safeguards in everyday encounters between state officials and their clients. Hence, we approached procedural justice as a legal principle, which is enshrined in laws – in the form of procedural safeguards – but is challenging to implement in practice, due to different systemic obstacles.

The aim of procedural safeguards is to prevent the arbitrary use of state power. Yet, our analysis demonstrated how procedural rights can be undermined, bent or merely formally applied – and thus missing their purpose, becoming a potentially empty, routinised term, rather than ensuring a fair process of claiming substantive rights. We identified three structural challenges within migration administration that reduce the ability of state agents to secure procedural justice, therefore aggravating the structural violence at the heart of the distinction between citizens and non-citizens in interactions with the state. These three challenges concerned rapidly changing policies, the pressure to accelerate administrative procedures, and systemic suspicion in encounters between state officials and migrants, which negatively affect migrants’ trust in those conveying information. We argued that these three challenges often result in non-citizens being insufficiently informed about the procedures they are involved in. We attribute the cause for this lack of transparency to structural factors tied to policies, and how different actors put these into practice. Importantly, these systemic obstacles impede migrants’ procedural rights and thus have a negative effect on their ability to claim their rights.

Acknowledgments

We express our sincere gratitude to all of our research participants who shared their time and experiences with us. We also are very thankful to the editors of this special issue for their numerous and detailed comments and their constructive feedback, which greatly improved this article. Many thanks also to Stefanie Kurt for her legal feedback and the reviewers for their insightful suggestions and critical comments.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Funding

This research was supported by the Swiss National Science Foundation (SNSF) under the following [Grants: 148940, 153225, 172228 and 51NF40-182897] (National Center of Competence in Research nccr – on the move).

Notes on contributors

Lisa Marie Borrelli

Lisa Marie Borrelli works as associate professor at the HES-SO University of Applied Sciences and Arts Western Switzerland within the Institute of Social Work. Her research interests include social policies and migration governance, critical border regime studies and the anthropology of emotions and organsiations. Among others, her work has appeared in the Journal of Ethnic and Migration Studies, Public Administration, Geopolitics, and Journal of Social Policy.

Anna Wyss

Anna Wyss is a senior researcher at the Institute of Public Law at the University of Bern. Her research interests include mobility, migration and border studies, the anthropology and sociology of law and the state, precarity and critical masculinity studies. She is the author of the book ‘Navigating the European Migration Regime (2022, Bristol University Press). Other work of her has appeared in the Journal of Ethnic and Migration Studies, the Journal of Refugee and Immigrant Studies, Geopolitics, and Antipode, among others.

Notes

1. In our use of the word ‘migrant’ we recognise that the term does not nonjudgmentally refer to people who have crossed national borders and settled permanently in one place. Rather, it carries the implication of a political problematisation of those who have moved and is mostly applied to people whose movement is considered undesirable and thus ‘something to be governed and controlled’ (see Tazzioli 2020, 5).

2. See project homepage: https://nccr-onthemove.ch/projects/governing-migration-and-social-cohesion-through-integration-requirements-a-socio-legal-study-on-civic-stratification-in-switzerland/ (accessed 18.03.2022)