Read the Dutch IND’s Werkinstructie, the primary document of guidelines for decision-making by Immigration & Naturalization Department interviewers of LGBTQ asylum seekers.
All refugees have a story—often an incredible one—of the events that led them to flee their homes and seek safety in a foreign land. When they arrive—if they ever arrive—somewhere safe, that story will determine their future. Asylum is granted to the refugee whose story compels the host nation to offer relief. Ralph Severijns, a Dutch legal scholar, has studied the moment of this encounter in the Dutch asylum process, when the refugee tells his story and the state must listen—reading the story of the refugee to determine his legal fate.
Following are excerpts from Zoeken naar zekerheid (Search for Certainty), (Wolters Kluwer, 2019). Page numbers from the original are marked on the right margin, preceding each excerpt.
(p. 39)
On the third day of the asylum procedure, the asylum seeker will be given the opportunity to explain why he fled from his country of origin.[1] During the interview, his asylum motives will therefore take centre stage. An interpreter will be present during this interview, and a volunteer from the Netherlands Refugee Network or the asylum seeker’s lawyer may be present, but often is not. On the basis of this interview, the Immigration and Naturalization Department (IND) decision-maker will assess the merits of the asylum application in combination with what the IND knows about the situation in the country of origin. This interview is largely free of form. The hearing officer asks a number of standard questions that are prescribed in the format, but the core of the interview is the so-called “free narrative.” The asylum seeker is given the opportunity to tell in his own words why he left his country of origin. The hearing officer then uses this story as a starting point to come to a decision on the asylum claim.
[Severijns calls the space in which the IND worker makes this decision, “discretionary space.”]
(p. 250)
The essence of discretionary space is the freedom to make choices within it. In the theoretical framework of this research, I use Ronald Dworkin’s analogy of discretionary space as “the hole in the donut.” According to Dworkin, the hole in which freedom of choice exists is surrounded by a ring of rules. The choices made are legitimate so long as they remain within the limits set by the rules….From the perspective of IND employees, the donut ring is formed not only by regulations, but also by the procedural, organizational, and social contexts within which IND employees have to work. In practice, the rules do not determine how much discretionary space they encounter. Rather, the expectations of IND staff about the ways in which the rules must be interpreted and to what extent the organization is capable of directing and controlling the behavior of IND staff, hold sway.
(p. 116)
Q: What is the role of the decision-maker in your opinion?
A: He must make the right decision in accordance with the policy, but also in accordance with his own ideas about it. If something doesn’t quite fit, and you think this is really not going to work, this is not possible, this doesn’t work, then as a decision-maker you also need to know when to think outside the box and try to act.
Q: What does that mean?
A: That if something actually just doesn’t qualify for approval, you try to see if there is still a way to turn it into something.
Q: What kind of cases are they?
A: People of whom you think: they won’t make it. This goes wrong. People who are alone, for example, who are psychologically not well. Usually it’s a summation. There is a medical defect, a social defect and there is no safety net, there is a delay, no education. Which makes you think, if I send these people back, it goes wrong. …you’ll see if you can still do something with them.
Q: How?
A: It has to fit within the policy. If it doesn’t fall through, you’re in a distressing situation.
(p. 251)
Within this framework, I distinguish three motives for the IND staff’s interpretation of discretionary space, namely: coping, tailoring, and ethics. “Coping” is when staff figure out ways to survive the immediate pressures of their work environment. “Tailoring” involves the alignment of general rules with concrete cases, making the best match. And “ethics” lead IND employees to harmonize their personal values with their professional obligations, as much as possible.[2] All three of these motives for discretionary conduct are evident in the actions of IND staff. They work with open standards and abstract legal concepts, without recourse to unambiguous instructions on how to apply them in practice in all cases. They must decide for themselves how to apply the rules in any individual case. Interpretation therefore occurs all the time.
(p.17)
In essence discretionary space is the possibility to act and deliberate according to your own insight, within a specific context and taking in account certain limitations. Seen from the perspective of the individual IND employee, the terms “discretionary space” and “insecurity” are inseparably linked. After all, if IND employees don’t experience the possibility to choose between different acts and deliberations, they wouldn’t experience doubt. Discretionary space thus implies that the space to make choices exists, what Dworkin called the “hole in a donut.”[3] The freedom to make choices is never unlimited because it’s bound by a ring of rules, procedures, and instructions. The donut and the hole cannot exist separately from one another; they need each other. The rules must contain space to function in practice. After all, they must be applied to individual cases. And the space itself must have a boundary, to give legitimacy to the decisions taken within. Of course, it can’t be assumed that, in all cases, the person who makes a decision will be aware of the limits of his discretionary space. According to Davis, the bureaucrat’s discretionary space begins where effective control over his functioning ends, and he is therefore free to make a decision from a variety of options (among which is the decision to neglect to take action).[4]
(p.18)
How can the hole of the donut be understood?
The legal-theoretical debate about discretionary space concentrates mostly on the legal question if, and to what extent, laws and regulations truly grant decision makers[5] the freedom to act of their own accord within the discretionary space. In the non-normative, social-scientific understanding of discretionary space, that freedom is considered an empirical fact. Also in this understanding, the empty hole in the donut is not seen as a vacuum in which individuals are completely free. Sociological studies of policy implementation show that discretionary space is riddled with a multitude of limiting factors, such as the task description of bureaucrats, the way the organization is designed, the social relationships within the organization, and the informal norms that count in (parts of the) organization.[6]
(p. 228)
Q: If you were to change something in the decision-making process, what would you do differently?
A: Well, you know, the problem remains politics. It remains that way. That you can no longer just give an objective credibility judgment. Because that’s how politics interferes. That does frustrate me. It means you can’t be so consistent with your decisions. Someone with an unbelievable story who happens to belong to a minority group, you have to grant them based on nothing, so to speak, and someone who has everything in order, tells everything neatly and also has a rotten life, but is just not persecuted badly enough, you have to reject them. That sometimes makes it difficult. So because politics prescribes group policy, that’s how you distinguish groups of asylum seekers. That means that if you happen to fall within that group, you can do everything God has forbidden, but you have a consent. And if you don’t fall in and you have a credible story, but that’s just not heavy enough, but you do have a really bad life, then you won’t make it. That’s hard sometimes.
(p. 150)
[Severijns identifies two distinct groups of IND staff: those who interview asylum seekers (called “interviewers,” or “hearing officers”) and those who review the cases and make the decision to accept or reject (called “decision-makers,” or “deciders”). Most IND staff will play both roles at some point, but always in different cases.]
To come to a decision, decision-makers must take note of the information that’s been collected by hearing officers and included in the file. Roughly speaking, there are two ways in which decision-makers absorb this information. The majority of them say they start by reading the entire file from beginning to end and mark what they are struck by while reading it. Another, smaller group, first reads into the policy that they suspect will apply to the application. In this way, the decision-maker knows which issues he should pay particular attention to while reviewing the file. One decision maker describes his working method below:
A: Yeah, so before I decide, I don’t first read the interview. I read all the background information first. I first read the policy and only then do I read the interview. […] I actually just start at the back, at the intake of the immigration police. So someone has arrived in Ter Appel [the Dutch asylum-intake center] and then I go from back to front. Then I read “the minutes. ” Or actually I start to fill in the minutes again. [Severijn describes the minutes as, “an internal document in which IND employees can write down their observations, findings and conclusions. In most cases, the hearing officer who conducted the first hearing summarizes his findings in this document.”]
Q: Yes?
A: Then you check it [the information in the minutes].
Q: Do you change what’s in the minutes first?
A: No, you check it.
Q: So you always check if you agree with what’s in the minutes?
A: Yes, and if you disagree you write, “decider completes this.” You don’t take away what the employee said, but you complete it yourself.
The content of the minutes is shaped by the IND’s decision system and includes required text areas to ensure that decision-makers pay attention to all aspects of the case. For this reason, most decision-makers also work on these minutes during the conception of a concept decision. Most decision-makers say they feel responsible for all aspects of the decision they take. This means they do not blindly adopt previous conclusions drawn by colleagues that are included in the file….I asked the decision-makers when they were sure of the decision they were going to make. There were several answers to this question that can be situated within the following two extremes. Some of the decision makers say they knew what they were going to decide after reading through the whole file. These decision makers seem to make their decisions intuitively at first. They then defend that decision on paper, first in the internal “minutes,” and then by declaring their intention to reject or grant asylum. The employee below is one such decision maker:
Q: When will you know whether it will be a granting or a rejection?
A: When is that moment? It’s after I’ve read the hearing, reviewed the whole file and obtained other information if necessary. Then I make a decision.
Q: Ok, and then you’re going to write it down?
A: Then I’m going to write.
Q: So it’s not that you come to a certain decision while you’re writing?
A: No, but I also differ from what most others do. Most of them usually start with the minutes. But I read the minutes, for the facts and circumstances, and then I make a decision. After that, I write, I write immediately. I will fill all that back into the minutes later.
A: Yes?
Q: […] Then I write down everything I find strange. Then I have about ten considerations and I think: ok I omit this and that. Also anticipating what judges think is important I’ll see if I can put it into words properly. I look at the building blocks that I see, left and right.
Q: And if you decide to grant asylum? Does it work the same way?
A: In that case I write the minutes first. Because a decision is to fill in four required fields (in the electronic document) and then I’m done.
Other decision-makers also start by reading the whole file, but they first write down whatever they notice, what they think is “strong” about a case and what they think might be strange or contradictory. Only after they’ve written down the weak and strong points of the story do they make a decision.
A: What I’m doing is, I always start, whatever the case, to read through the first hearing very quickly in order to grasp the main lines by quickly browsing through the closer hearing. Often I then imagine that I have an idea. Sometimes it stands out like a rock, and ticks like a clock, but sometimes the story feels very strange. Then I take the time to read through the hearing more calmly. I take a look at the policy: what do I know about such a country, and that’s how I try to form a picture of what I’ll do with it. It’s a matter of weighing things carefully. What kind of reasons do I have that are convincing, what weighs more heavily. In the end, the balance always hits on one side or the other.
The employee below calls decision-making an intuitive process. I asked him when he knows what he’s going to decide:
A: You often have a hunch, a certain feeling. And often, not always, you can mention a number of aspects that are really striking. In fact, and this is quite difficult, you build up a kind of momentum. But when that momentum flips over everything changes.
Q: But is that while you’re reading, while writing, or while discussing?
A: When I’ve read, I already have a certain direction.
Q: Will that be the ultimate decision?
A: No, but you can say: Now I’ve got a certain hypothesis, I’m going to test it. The one who has to decide today’s case also has several options. For instance, should I do something with the religious conversion, or not? You can start with some concrete things…. It’s a very elusive process. And I think we all have to acknowledge that there’s a lot of intuition in it.
Q: You may be using certain tools to guide that intuition. For example, by making “the minutes,” or by putting all the plusses and minuses together, or by trying to write a plan and see how far you get, or…?
A: Yes, that’s right. I make a lot of drafts, my desk is flooded with papers. First I write down the things that strike me, or I write them in the margin of the report. Or with elements that might be relevant, I write down what those may be. For example, whether it has to do with refugee status. But other questions, or even contradictions, or vagueness. These are the kind of drafts I make. I’m chaotic. I don’t think I’m the most efficient decision-maker. It takes me quite a long time, and there are drafts everywhere. At some point I try to make soup out of them.
Q: Okay, does it ever happen that you have an image in the beginning but are then surprised, afterwards, that it comes out different?
A: I can’t remember that.
Q: So usually your first feeling is right?
A: Yes, I think so.
There seem to be risks involved in both ways of making decisions. The decision-makers who write down all the strengths and weaknesses of the story and take stock of them at the end, may lose sight of the larger connection between the explanations. Employees who read through the entire dossier and make an intuitive decision based on it, and then put that decision down on paper, run the risk of developing tunnel vision, or basing the decision only on a limited part of the available information. In practice, decision-makers move between the two methods.
(p.20)
A sociological approach is well suited to examine such internal processes. In the socio-legal literature, the question of whether discretionary space in the law actually implies the freedom to choose between two alternatives (both of which are equally good) does not play a role. Discretion is seen in this field as the degree of freedom a person can exercise within a specific context.[7] The socio-legal literature concentrates on the question of which space is experienced by bureaucrats—how they make use of it and what the effects of this are. After all, a sociological interpretation of the law concentrates on the social construction and operation of the law rather than on its strict content.[8] Sociologists of law regard the existence of freedom of action and freedom of interpretation in the application of the law as a given, although there is discussion about its desirability.[9] Discretionary space is regarded by them as a “lubricant” for rules to function in practice.[10] It is also regarded as given that the way in which individual actors deal with free choice is influenced not only by the law, but also by non-legal factors. There is often a “policy gap” between the objectives and the actual outcomes of policy.[11] This gap between “the law in the books” and “the law in action” is particularly wide in the area of migration. [12]
(p. 275)
In order to come across as credible in the eyes of IND staff members, the asylum seeker’s “free narrative” must, on the one hand, contain elements that correspond with what is known (or match the staff member’s assumptions). On the other hand, the story must have something unique, otherwise the suspicion will be aroused that the story has been made up. If the narrative resembles other narratives too much or too little, this can motivate the IND staff member to examine the asylum seeker’s statements more critically. It may also convince the decision-maker to reject the asylum application, because of doubt.
(p. 185)
There is a great deal of mistrust among IND employees about the sincerity of asylum seekers whose “reason” is their religious conversion or sexual orientation. Employees suspect that some of the asylum seekers who invoke these reasons don’t need protection, but only present themselves that way in order to qualify for a permit. The employee below has particular difficulty with alleged religious conversions that have taken place in the Netherlands.
A: If I see that someone’s had a conversion, especially if the conversion has taken place here in the Netherlands, my hair will stand up straight.
Q: Yes?
(p. 193)
A: I’ll ask him for the shirt off his body. [A Dutch idiom, meaning to ask everything possible.]
Q: Do you make up these questions yourself?
A: For the most part.
Q: And how do you find them?
A: Well, I was raised almost black stockings [a strict Dutch Calvinist], so I’ve built up quite a bit of Bible knowledge and I ask questions based on that knowledge.
During the interview, she tries to use the asylum seeker as the starting point for her questions:
Q: Do you have a favorite question?
A: What I always like is asking them about favourite stories and then I ask why they label it as a favourite. Then I’ll go into the details. I say, So, what’s your favourite story? And the asylum seeker answers, Yes, I’ve read a lot about the life of Jesus. Then I’ll ask, so tell me what happened then in the life of Jesus. And sometimes they say, I don’t know. So then I ask, But that was your favorite story, wasn’t it?
(p. 185)
Employees struggle with the question of how something so subjective as religious conversion can be judged objectively. In other words, how can the decider distinguish between “sincere” conversion and “disingenuous” conversion?
A: Yes, and in the case of a convert … you wrestle with the question, is it sincere or not? And what has moved someone, if someone comes from a strict Islamic culture, to express that as well. I find it quite difficult to figure that out. And with homosexuality I find it even more difficult than with religious converts.
Q: What do you find difficult about that? Do you mean, is it right to ask the questions, or…?
A: Yes, to ask or judge that and to find out if you’ve asked enough to be able to judge. Because I think it is […] something so personal. Such a personal experience. And that can be very different for me than it is for you.
(p. 175)
Employees attach different values to their own gut feelings and to the behaviour of the asylum seeker, such as his body language and the way he answers. Some of the employees say that it is good that this information is not available to the decision-maker, so that they can make a more objective decision. Others consider this to be a shortcoming; they are of the opinion that the information can be better qualified if this type of information can be included in the decision-maker’s opinion. They sometimes say they choose to write about this behaviour in the internal minutes, talk about it with the colleague who will make the decision, or make the decision themselves. There seem to be no rules for this.
(p.20)
The standard sociological work on the functioning of bureaucrats was written by Michael Lipsky.[13] He focuses on those whom he calls “street-level bureaucrats,”… individuals working in public services, who are in direct contact with citizens (or foreigners) and have considerable discretion to carry out their tasks.[14] Street-level bureaucrats implement the policy in practice; IND hearing officers and decision-makers have exactly these characteristics.
…Lipsky argues that the actual policy is not written in the ivory towers of the employer, policy makers, and managers at the top of the hierarchical pyramid, so much as it is created at work, where street-level bureaucrats make daily decisions in interaction with citizens (and foreigners). It is their task: “to respond to the unexpected and to ensure that services are responsive to individual need.”[15] The sum total of all the practical decisions made by individual bureaucrats ultimately forms the behaviour of the government and thus also the policy.[16]
[T]he decisions of street-level bureaucrats, the routines they establish, and the devices they invent to cope with uncertainties and work pressure, effectively become the public policies they carry out. I argue that public policy is not best understood as made in legislatures or top floor suites of high ranking administrators, because in important ways it is actually made in the crowded offices and daily encounters of street-level workers.[17]
Criticism of the functioning of government policy is therefore often directed at the way in which they carry out their tasks.[18] …Street-level bureaucrats constantly make small and large decisions about whether a certain rule should be applied and if so, how. For example, police officers determine who they fine and who they warn, teachers determine whether a pupil moves on to the next school year, and the IND’s hearing and decision-making staff determine how they collect information, what value they attach to the information they collect, and what decision they ultimately take. This does not mean that they experience total freedom to make their own decisions. Their room for discretion is limited by rules, but also by the way they are managed, the instructions they receive, the organization in which they work, and by informal standards in the workplace.[19]
…A first uncertainty faced by street-level bureaucrats is uncertainty about the meaning of the rules. Lipsky argues that the objectives and policies of the organization, which street-level bureaucrats must carry out, are often vague or conflicting.[20] The IND employee must be both restrictive and fair, make a careful decision and deliver these within a limited time and with limited resources. On the one hand, they have to guarantee the best possible treatment of citizens (and aliens) while, on the other hand, they have to function as gatekeepers of public goods. The goals themselves can be contradictory.
There are a multitude of rules to know and use, so street-level bureaucrats are forced to choose which rules they consider important. The large number of rules means that there is a distinction within administrative organizations between what employees regard as core rules and unimportant rules.[21] In addition, research shows that street-level bureaucrats do not focus so much on the formal laws and regulations, but more on the instructions and policy of the specific organization for which they work. Eule observes, for example, that staff members of the German immigration service use an approach that is so focused on practical knowledge of the law (rather than on formal law) that they label their way of working as a-legal.[22] It is also difficult for managers to supervise compliance with the rules by street-level bureaucrats. Since there are so many rules, it is only possible to monitor compliance on a selective basis.[23] In addition, managers do not always have an interest in monitoring compliance with all regulations. Managers tacitly accept that street-level bureaucrats carry out their work in a certain way, as long as their own targets are met.[24] The targets set by managers often focus on ensuring sufficient progress and keeping the work load small, rather than on whether all the rules are fully and properly followed.
In order to deal with the lack of clear rules, incomplete information, non-optimal working conditions, and their limited control over the results of their work, street-level bureaucrats develop routines. They organize their work so they can deal with these circumstances. Routines are formed by applying simplifications to reduce the perceived uncertainty and make it manageable: for instance, as Lipsky mentions, making a distinction between clients who, in their eyes, deserve more or less attention by using stereotypes,[25] referring difficult matters to others within the organization, or accepting decisions made by others in the organization without taking a critical look (rubber-stamping). Street-level bureaucrats can be satisfied with incomplete information or information provided by the clients themselves, simply because they lack the time and resources to look for additional information or to check the information available to them.[26] Whether or not they’re satisfied with the information available from colleagues depends in part on the reputation of the colleague concerned and the experience he has with similar cases.[27]…
One of the consequences of the routines adopted by street-level bureaucrats is that the citizens and foreigners who come to them are transformed from unique individuals into clients. The street-level bureaucrat classifies them into policy categories, or, “identifiably located in a very small number of categories, treated as if […] they fit standardized definitions of units consigned to specific bureaucratic slots.”[28]
According to Lipsky, the routines of street-level bureaucrats can go unquestioned because they operate in relative autonomy from the upper management of their organizations. In general, of course, employees accept the authority of their organization, and it is difficult for employees to successfully deviate from the organization’s wishes.[29] However, there are ways it can happen. For example, if the interests of the employee are very different from the interests of the higher-ups in the organization and the higher-ups have no penalties or sanctions at their disposal to correct employee behaviour.[30] It may also happen that the higher levels within the organization aren’t aware of how employees act or decide. It also happens that different layers of an organization will be in conflict with each other, and therefore less likely to support and respect their shared interests.[31]
(p. 252)
IND staff can also be understood as what Bovens and Zouridis call “screen-level bureaucrats.” The choice of which activities they’ll perform, which questions they’ll ask, and what weight to attach to answers, are based on the information found on their computers during work. Hearing officers have access via their screens to standard questions they can ask and reference materials to assess the reliability of statements. In addition, hearing officers often have Google maps open during the conduct of the “origin investigation” to help them think of questions and check answers about the asylum seeker’s motives. Decision-makers also have standards and regulations at their disposal via their computer, which they can use in many cases to justify their decisions. A considerable part of how hearing and decision staff deal with uncertainty is provided by these sources. From the perspective of the IND staff member, their space for discretionary action is therefore, to a large extent, digitally narrowed to the choices that the computer offers them.
(p.26)
The influence of IT is only growing, as a result of which governing bodies are increasingly able to standardize decisions. In some bureaucracies, the uncertainties associated with policy implementation now rarely arrive in the hands of street-level bureaucrats, having been solved in advance by the IT system’s algorithms. Bovens and Zouridis call this “system-level bureaucracy.” As far as I know, this is not yet the case in the asylum procedure. In other areas of immigration law, however, more and more use is being made of so-called “treatment and risk profiles,” whereby the options for action when uncertain have been limited by the system.[32] Some studies point out that even if IT does not limit the discretionary scope of policy implementers, it can have the effect of hiding from managers the ways in which bureaucrats use their discretionary scope.[33] The managers only see what is entered into the IT-system by the bureaucrats, and are often ill-informed about the choices and actions that preceded the entries.
…A [final] development impacting the asylum process is the emergence of “New Public Management” in government organizations. This means that bureaucratic organizations have adopted more and more business principles. In this philosophy, citizens are seen as customers and the government as a service provider. The IND adheres to this philosophy and calls applicants for new residence permits “customers.” Managers who apply this philosophy exercise less supervision over the way in which the bureaucrat fulfills his task; instead, they concentrate on the question of whether they achieve the end result in an efficient manner (the “target”). Although the reduced control over the content of the work can actually increase the individual bureaucrat’s discretionary scope, the emphasis on effectiveness often limits it. Bureaucrats will have a particular interest in carrying out their tasks in the most cost-efficient way possible.
(p. 271)
Which style employees develop is only influenced to a limited extent by the formal manner in which the IND trains and supervises its employees. Much more influence is exerted by the informal contacts with colleagues with whom they regularly consult during the working day, with whom they share their room, and with whom they spend their breaks. There seems to be more talk of what Eule calls an “oral tradition of law,” by which he means that the meaning of the rules is learned from colleagues in practice. I would like to build on this and conclude that there is also an “oral tradition of practice” within the IND, in which local standards are created at various levels.[34] How IND employees make use of their discretionary space to act and judge depends much more on the informal than on the formal socialization process.
(p. 278)
The literature on street-level bureaucrats sometimes suggests that discretionary space is disappearing, due to the increasing influence of IT systems and the increasing control of managers. This is hardly ever the case at the IND. According to hearing and decision-makers, managers or other higher positions within the organization hardly exercise any substantive control over the way in which IND employees carry out their tasks in the asylum procedure. They are more concerned with the efficiency of the procedure and are mainly focused on limiting the workload. The substantive standardization of the establishment of the facts is mainly left to judges, who, however, only see part of the decisions and test the establishment of the facts with restraint, if it is based on the assessment of the credibility of statements. Moreover, many of the choices made by IND employees remain invisible to the judge. From the moment that IND employees are certified, they have a lot of freedom to shape their work. In some cases, they’re even allowed to work towards a certain decision as both the hearing officer and the decision-maker…
(p. 282)
I am convinced that it’s not possible for IND employees to establish certain facts in a completely objective manner. Deciding how to deal with this will require a broader political and social discussion about who should bear the risks that follow from uncertainty about facts, and what social costs we’re willing to pay for a process that will always include uncertainty. What risks of a “wrong decision” on an asylum application are we, as a society, prepared to accept? This question cannot be answered by IND employees. Society and government must answer it, but too often it is still ignored because it’s easier for the political leadership to send IND employees to work with unclear instructions. The staff are then stuck with a broad discretionary space against their will. In my opinion, a more open debate about the risk of uncertainty will also contribute to a sharper separation between criticism of IND policy and criticism of the people who implement the policy.
Notes from the Polity of Literature: The Refugee’s Story
Afterword by Matthew Stadler
The “refugee” is a European invention, the name given to the 17th-century Huguenots who fled France after King Louis XIV, the Sun King, issued the Edict of Fountainbleu. The King’s wish was that the Huguenots stop worshipping in the Calvinist manner and join the Catholic Church. Instead, they fled, taking a great deal of wealth and talent with them. Their hosts in the more tolerant countries where they settled called them “refugees.”
Of course, displaced and stateless people wandered the world before the Huguenots. In Aristotle’s Athens, such wanderers weren’t free men, but property. They could be taken as slaves who might, or might not, eventually earn their way to citizenship. In plague times all strangers were Grim Reapers, and the fate of the displaced person was bleak; and still they wandered, mostly in search of work. Saskia Sassen has shown, in her 1999 book, Guests and Aliens, that Europeans have always wandered or migrated in response to economic crises or opportunity. Few ever left home for other reasons; but the roads in every part of Europe have always been busy with people seeking work. As nation-states began to define their authority over territory (in the late 17th-century, after the Treaty of Westphalia), the “problem” of the wandering workers’ mobility began to shape itself around a person’s belonging or unbelonging in the nation-state. The crisis of the refugee was created by the nation-state.
The legal and administrative regime faced by the masses of refugees who seek asylum today is a purpose-built tool made by the European nations after their two large 20th-century wars. In 1918 and again in the late-1940s, Europe was beset by tens of millions of displaced people trying to resettle on a continent of radically changed borders. These thirty-or-so years of European war and state-craft shaped an asylum process that 145 countries (95% of the inhabited Earth) agreed to by signing the 1951 treaty of the U.N. High Commissioner on Refugees (UNHCR).
The administrative regimes for asylum vary from country to country. In the Netherlands asylum seekers are housed in large, remote facilities, often former military bases or disused prisons, before they are transferred to live in smaller facilities in towns and cities throughout the country. In Greece, refugees are detained by force in camps that lack most of life’s necessities, where they will either die, choose to return to the country they came from, or endure a years-long administrative process that offers little chance of asylum. In Norway, a counselor who speaks the refugee’s native language is assigned to assist each applicant in the process. In every UNHCR country, refugees wait on the asylum process for their full rights. Whether in harsh camps or a more comfortable apartment, they accept the powerlessness this system imposes on them in exchange for the chance to tell their story and ask for asylum. It is an astonishing and rare example of the power a personal narrative carries. The state bureaucrats who listen must learn to hear or “read” the story as accurately and completely as possible. Ralph Severijns’ sociological study of these workers in the Netherlands shows us an instance of a functioning legal regime in the Polity of Literature.
Partial Bibliography for Zoeken naar Zekerheid by Ralph Severijns
Bruquetas-Callejo, Maria, Educational Reception in Rotterdam and Barcelona: Policies, Practices and Gaps, Amsterdam: Amsterdam University Press 2014.
K.C. Davis, Discretionary Justice: A Preliminary Inquiry, Baton Rouge: Louisiana State University Press 1969.
Dörrenbächer, Europe at the Frontline of Migration Law. Legal Discretion, Bureaucratic Context and Individual Attitudes (dissertation: Radboud Universiteit, Nijmegen, the Netherlands) 2018.
Dworkin, Law’s Empire, Cambridge: Harvard University Press 1986.
T.G. Eule, Inside Immigration Law: Migration Management and Policy Applications in Germany, Surry: Ashgate Publishing 2014.
Evans and H. Harris, “Street-Level Bureaucracy’s Work and the (Exaggerated) Death of Discretion,” British Journal of Social Work, 200/34, p. 871-895.
Evans, Professional Discretion in Welfare Services: Beyond Street-Level Bureaucracy, London: Ashgate 2010.
Evans, “Professionals and Discretion in Street-Level Bureaucracy,” in: P. Hupe, M. Hill and Buffat (editors), Understanding Street-Level Bureaucracy, Bristol and Chicago: Policy Press 2015, p. 279-293.
Havinga, “Uitvoering tussen ambtenarij en markt,” in: R. Schwitters, Recht en samenleving in verandering: Inleiding in de rechtssociologie, Deventer: Kluwer 2008, p. 171-200.
Kahneman, Thinking, Fast and Slow, New York: Farrar, Straus and Giroux 2011.
van der Leun, Looking for Loopholes: Processes of Incorporation of Illegal Immigrants in the Netherlands, Amsterdam: Amsterdam University Press 2003.
Lipsky, Street-Level Bureacracy: The Dilemmas of the Individual in Public Services, New York: Russell Sage Foundation 2010.
Mascini, “De wisselvalligheid van de twijfel: ongelijkheid in de uitvoering van het asielbeleid verklaard,” Amsterdams Sociologisch Tijdschrift 2004/31(1), p. 113-146.
Maynard-Moody and M. Musehno, “State Agent or Citizen Agent: Two Narratives of Discretion,” Journal of Public Administration Research and Theory 2000/10(2), p. 329–358.
P.E. Minderhoud, “Voor mij zijn ze allemaal gelijk,” Een rechtssociologische studie naar verschillen tussen migranten en Nederlanders bij de uitvoering van de kinderbijslag- en de arbeidsongeschiktheidswetgeving (dissertation), Amsterdam: Thesis Publishers 1993.
J.L. Pressman and A. Wildavsky, Implementation: How Great Expectations in Washington are Dashed in Oakland; or, Why It’s Amazing that Federal Programs Work At All (The Oakland Project Series), Berkeley: University of California Press 1984.
R.J. van der Veen, De sociale grenzen van beleid: Een onderzoek naar de uitvoering en effecten van het stelsel van sociale zekerheid, Leiden/Antwerpen: Stenfert Kroese 1999.
Wiering, Controleurs in context. Handhaving van mestwetgeving in Nederland en Vlaanderen (dissertation) Lelystad: Koninklijke Vermande 1999.
Endnotes
1 Article 3.113(2) of the Vreemdelingenbesluit, the Dutch Aliens Decree. Specifically, the article reads: “On the third day, the foreign national will be subjected to a further hearing by [the Dutch] Ministry. When the further interview is conducted the foreign national will be given the opportunity to submit the elements necessary to substantiate his application as fully as possible. This means, among other things, that the foreign national will be given the opportunity to explain any missing elements or any inconsistencies or contradictions in his statements.”
2 Bruquetas-Callejo 2014, p. 43.
3 Dworkin 1986, p.31.
4 See also: Davis 1969, p4. He defines discretionary space as: ‘the power of free choice or latitude of choice within certain legal bounds.’
5 In most cases, this theory is cited in relation to judicial decision-making. However, it is also relevant to the decision-making of administrative bodies. That is why the neutral term ‘decision-maker’ is used here.
6 See for example: Minderhoud 1993, Van der Veen 1990, Wiering 1999.
7 Evans 2010.
8 Van der Veen 1990, p. 1.
9 Maynard-Moody and Musehno 2000.
10 Wiering 1999.
11 Pressman and Wildavsky 1984.
12 Van der Leun 2003, p. 156 and Dörrenbacher 2018.
13 Lipsky 2010.
14 Lipsky 2010, p. 3.
15 Evans 2015, p. 281.
16 Lipsky 2010, p. 13.
17 Lipsky 2010, p. xiii.
18 Lipsky 2010, p. 2.
19 Lipsky, 2010, p. 14.
20 Havinga 2008, p. 178 et seq.
21 Havinga 2008, p. 178 et seq.
22 Eule 2014.
23 Lipsky 2010, p. 14.
24 Lipsky 2010, and Evans and Harris 2004.
25 See Kahneman 2011 about the ‘cognitive bias’ that may occur.
26 Mascini 2004, p. 115.
27 Mascini 2004, p. 116.
28 Lipsky 2010, p. 59.
29 Lipsky 2010, p. 16.
30 Lipsky 2010, p. 17.
31 Lipsky 2010, p. 17.
32 ACVZ 2016/2.
33 Jorna and Wagenaar 2007.
34 Liodden 2018, p. 258.
