Seeking Asylum in Europe? Informality is the Path to Legality
Refugees are vilified for using illegal practices. But illegality is deeply embedded in Europe’s asylum system: hotspots formalize smuggling routes as a precondition for asylum; illegal ‘push-backs’ push migrants to destroy papers; and overburdened states pressure refugees to move to more prosperous ones, illegally. There is a clear shift in the approach to illegality: refugees turn to illegality not to fraud or out of ignorance – but because of how EU law works, informally.
Policymakers and the media portray users of smuggling services – which range from border crossings to fake papers – as clueless, ignorant, or misinformed. This portrayal of the refugee as a victim of the traffickers’ greed is designed in contrast to the xenophobic right-wing populist image of the refugee as a malicious fraudster. The difference between the two figures rests on the notion of intent. In the liberal discourse, the migrant has good intentions, but they fall victim to the criminal intention of “the smuggler;” in the right-wing imagination, the claimed persecution of the asylum seeker is in itself an act of fraud.
The Tale of Two Refugee Types: The Right-Wing ‘Fraudster’ and the Liberal ‘Victim’
Right-wing politicians, such as the Bavarian Interior Minister Joachim Herrman, paint refugees as fraudsters or illegal migrants, inhabiting the same social space of illegality with the smugglers. In the liberal migration discourse adopted by the European Commission and media outlets such as Informigrants, there is a distinction between informed migrants, who pursue legal migration paths, and the misinformed, who smugglers victimize. The legal route is presented as both the smart choice and the safe choice, the only path that ensures sustainable state protection and a safe journey. As a corollary, it stipulates that the risks of the journey – that has cost many lives– are merely the result of migrants’ erroneous choices, and the traffickers’ viciousness.
This discourse postulates two types of migrant subjectivities operating two contrasting strategies: the informed migrant, who adheres to legal procedures, and the misinformed, who succumbs to counterfeit solutions, while exposing themselves to fatal dangers. It also leaves room to postulate a third figure: the unsuccessful informed migrant, who – once failing to migrate through legal pathways (due to lack of merit) – turns to the counterfeit as a last resort. In this vision, the legal and the informal spheres are imagined as the negative and its print.
Securing Asylum: The Illegality Dilemma
Between 2017-2019, I conducted an ethnographic study with asylum seekers on the move between Turkey, Greece, the Balkans, and Germany. I followed how migrants maneuver between the different actors enacting the written (and unwritten) law, ranging from EU agencies enforcing EU’s external border, national asylum and border officers, and humanitarian NGOs that were granted different degrees of sovereignty in managing the migration crisis zones. Paying particular attention to migrant paper strategies – how they use, evaluate, and differentiate between so-called legal and fake documents – I found that contrary to popular belief, migrants were extremely informed of the nitty-gritty of the EU’s contrasting asylum procedures. But more importantly, I found how informal practices, such as buying fake IDs or making sure one’s real papers are out of authorities’ reach, were not used to circumvent the law or to claim a false identity. Instead, these were informed choices made towards achieving legality and adhering to asylum procedures.
Scholars have often conceptualized informality as something that exists outside or in defiance of state control. But as Europe’s asylum and border regimes increasingly incorporate illicit practices, the distinction between legality and informality may, at times, obscure more than reveal.
Consider the story of Amjad, a twenty-six-year-old electrician from Yemen. Ravaged by a proxy war between Saudi Arabia, Iran, and their allies, Yemen has one of the highest asylum recognition rates in EU countries. Amjad, like other Yemeni refugees I followed, ultimately achieved asylum in a northern EU country. But to gain asylum, he had to navigate legal and illegal paper practices, reevaluating his moves in every step of the way.
After the Yemen War broke, Amjad fled to Jeddah, Saudi Arabia. When the Saudi government began deporting Yemenis, he managed to get a tourist visa to Turkey through an informal middleman at the Turkish Embassy for 1330 US Dollars. Whether this “middleman” bribe was an institutional practice at the embassy, Amjad could not tell. But the visa was “real,” and institutional bribes in the form of visa fast-tracking for an enlarged fee is a common consular practice in the West.
Formalizing Illegality in and Beyond the EU’s External Border
Once in Turkey, Amjad was exposed to deportation threats, as Yemenis did not enjoy the temporary protection granted to Syrians. To apply for asylum in neighboring Greece, Amjad had to find a smuggler to put him on a boat for one of the Aegean hotspots, where – since 2017 – asylum applicants reaching the EU external border are held until the Greek Asylum Service or EASO (European Asylum Support Office) assesses their claim. To get to the hotspot, he had to cross the sea illegally, facing multiple perils, such as the high fatality rate or getting caught by the Turkish Coast Guard. Once in European water, the situation does not become less tricky; Frontex, the European Border Agency, handles humanitarian rescue and enforces the external border at the same time. Recently, it has been engaging with illegal push-backs to Turkey, as was the case with the Greek Coast Guard, according to various reports. Refugees like Amjad face a dilemma about what to do with their legal documents at sea: they are crucial for establishing their identity and their asylum case, but they can be confiscated during push-backs and used to facilitate deportation. Some refugees decide to send their documents in advance to a friend on the mainland. Others get rid of them altogether.
Illegality is, therefore, a precondition for claiming asylum in the EU, but it is also rampant after being admitted into the system. As inequality in asylum burden-sharing among member states widens, and Dublin reforms are stuck, frontline states illicitly stimulate asylum seekers to move north and lodge their claims in a less burdened state (before COVID-19 travel restrictions). In Greece, this is done by letting asylum seekers wait for years for the asylum interview without making ends meet and turning a blind eye on secondary movement through fake documents.
As long as asylum systems in the EU stay intensely intertwined with the bloc’s deportation apparatus, illegal practices will remain a necessary step towards obtaining a legal status and the protection that goes with it. Migrants know the intricate ways in which the European asylum system is licit and illicit at the same time, and how it uses these legal binaries to criminalize them. But they also know that illegality is rewarded. It is time for scholars to follow migrants’ lead and see how informality operates beyond the shadows, as the law’s informal reality.
This text is based on the article “Informal Practices in Illicit Border-Regimes: The Economy of Legal and Fake Travel Documents Sustaining The EU Asylum System” that has recently been published as part of a special issue of Migration Letters on “Transnational (Im)mobilities and Informality in Europe” edited by Ignacio Fradejas-García, Abel Polese, and Fazila Bhimji.
Romm Lewkowicz is a Doctoral Candidate at The Graduate Center CUNY. He is also a Visiting Research Fellow at Trafflab, an interdisciplinary research project rethinking human trafficking from a labor perspective.
Reference:
– Lewkowicz, Romm (2021). Informal Practices in Illicit Border-Regimes: The Economy of Legal and Fake Travel Documents Sustaining The EU Asylum System, Migration Letters 18 (2), 177–188.
