Legitimized Refugees : A Critical Investigation of Legitimacy Claims within the Precedents of Swedish Asylum Law

Abstract:
This study focuses on asylum cases decided at Sweden’s migration courts. More precisely, it analyses how the highest legal instance, the Migration Court of Appeal (hereafter MCA), legitimizes decisions that concern asylum seekers. Using critical discourse analysis (CDA), the study makes power relations visible. Investigating central discursive claims that are expressed in the precedents of Swedish asylum law, certain power relations are identified as particularly unbalanced. Based on the identification of what I subsequently call the institutionalized power imbalance of the asylum system, the study’s findings compel me to challenge this imbalance. After conducting ten interviews with judges at Sweden’s four (second-instance) Migration Courts as well as at the (third-instance) MCA, I reviewed 200 precedents (published 2006-2016) that concern people who applied for a residence permit in Sweden. Of these 200, 75 precedents of relevance for Swedish asylum law appear in the study. Drawing on Robert Stake’s understanding of a collective case study, the interviews are used to sample six precedents for in-depth analysis. Through a CDA of these last-instance decisions it is demonstrated how precedents of Swedish asylum law discursively represent 1) families with children, 2) class, race, ethnicity and religion, gender and sexuality, and 3) the policy of ‘regulated immigration’. Building on Norman Fairclough’s conceptualization of discursive legitimation strategies, and with the help of Robert Alexy’s and Jürgen Habermas’ approaches to legal discourse, it is argued that precedents of Swedish asylum law are not only legitimized based on I) the authority of law, but also by reference to II) the rationalization of empirical reasoning, III) the utility of institutionalized actions that can use law as means for political ends, IV) those moral evaluations that permeate legal discourse, and V) the storytelling that appears when legal texts are read as narratives. This argumentation highlights uncertainty, which affects the social reality of asylum processes and which appears to be represented when precedents of Swedish asylum law are legitimized by reference to rationalization, moral evaluation, and/or as narratives. Providing the respective decisions with some meaning, rather than merely making sure that they are legally correct, the analysed precedents are, thus, legitimized not only by reference to the authority of law. Referring to Şeyla Benhabib and her usage of Robert Cover’s distinction between ‘law as power’ and ‘law as meaning’, a CDA of precedents of Swedish asylum law can, in this sense, illustrate how judges pay notice to the complexity of refugee migration in the world of today.