Refugee and Asylum Seeker Rights in Europe: Gendered Crimmigration Experiences in the Dutch and Spanish Cases

By Colleen Boland

This article is a shortened version of the re:constitution working paper, which was originally published by the Forum Transregionale Studien in 2023 and can be read here.

Colleen Boland

Europe faces increasing patterns of crimmigration, or the merging of criminal and migration law, discourse and practices. From a legal perspective, crimmigration can be understood as the intersection of immigration law and criminal law, which embeds criminal enforcement powers within a civil authority regime (Koulish, 2016). European legal scholarship on the topic particularly explores migration management through traditional law enforcement in terms of surveillance and detention, as well as via procedures of prevention and pre-emption (Mitsilegas, 2015). In recent years, underlying trends and apparatuses of securitization at the European Union (EU) and EU Member State policy level have impacted this type of policy and legislation.

However, “crimmigration” has also expanded to transdisciplinary use as a concept encompassing all of the processes, norms and narratives that criminalize migrants. This can entail non-state actors as well as the state as perpetrators of these practices, or as actors in crimmigration processes. For example, political, media and public discourses can influence crimmigration policy and legislation in a mutually constitutive process (Althoff, 2020; Van der Woude et al., 2014; Brouwer et al., 2017; Menjívar et al., 2018). Here, crimmigration will be used in this broader sense, understood as encompassing the procedures, narratives and practices of criminalizing migrants, including the migrant experience of these phenomena.

While crimmigration (and wider related) literature points to the questionable criminalization of migrants (or people on the move) as violating certain fundamental rights, the criminalization of refugees and asylum seekers entails an additional rights violation in breaching the specific right to international protection. Oftentimes, crimmigration patterns or processes are not articulated in a way that distinguishes between asylum seekers and refugees versus more general migrant populations, or between regular and irregular migration. While a migrant is a general term to refer to any individual “on the move” (including within national borders), and may often only refer to voluntary movement, refugees and asylum-seekers are legal terms referring to an individual who has involuntarily left their country of origin for reasons stated under the UNHCR 1951 Refugee Convention. Confusion between these categories can be witnessed, for example, in political parties’ securitization or anti-immigration rhetoric, or European citizens’ attitudes towards migration. Arguably, even certain EU border externalization and securitization efforts struggle to make this distinction, with a salient example including the border policing conducted by EU agency Frontex (Perkowski, 2018). In fact, asylum’s securitization within the EU context, via increasingly restrictive legislative and administrative policies and practices, can oppose Member State and EU fundamental rights obligations and the spirit of EU refugee and asylum or fundamental rights protections (Atak and Crépeau, 2013).

As such, asylum seeker and refugee rights remain very relevant for crimmigration patterns and overall migration and asylum governance discussions in Europe. In particular, this work focuses on refugees and asylum seekers’ rights to asylum (particularly based in the EU interpretations of the 1951 principle of non-refoulement and non-penalization principle) and non-discrimination. In a discussion of EU refugee and asylum rights, the state-centricity of refugee law comes to the fore, as it poses challenges in relation to the autonomy of states, particularly evident in examining EU versus Member State jurisdictions. On the one hand, many state governments can view implementing refugee rights as contradictory to national security, and may consequently engage in administrative detention, paperwork requirements and preventative practices, as well as policies of deterrence that reduce rights access (Gerard and Pickering, 2014). On the other, Member States have objected to a more horizontal anti-discrimination directive or implementation that would theoretically better protect the population under study, citing conflict with principles of subsidiarity and proportionality (European Parliament, 2021; Fokas and Richardson, 2017). In light of this, any discussion of how crimmigration practices affect asylum seekers or refugees in EU Member States necessitates a lens of legal pluralism: understanding that state immigration legality intersects with international and transnational legality, natural legality and informal administrative legality.

Indeed, on the one hand, the need for improved European asylum systems has been identified as pressing, by stakeholders including EU institutions, Member States and civil society actors. On the other, the relatively nascent literature and global evidence on crimmigration to date demands a better understanding of the gendered and intersectional disadvantage underlying crimmigration practices, particularly in that crimmigration phenomena can have differentiated and understudied consequences for women (Abji 2020; Hartry 2012).

Consequently, the research questions ask how asylum seeker or refugee women experience or negotiate crimmigration rhetoric, policies and practices, alongside inquiring into their access to or understanding of EU fundamental rights to asylum and non-discrimination, in the context of two different Member States. It seeks their underrepresented perspectives in understanding which crimmigration processes of inclusion and exclusions they find important, with which actors they negotiate in these processes, and how their strategies and projects reflect or even leverage aspects and understandings of fundamental rights to asylum and non-discrimination, or affect these individuals’ perceptions of rule of law.

To answer this inquiry, this work looks at the EU Member States the Netherlands and Spain. They provide unique case studies with differing institutional mechanisms, as well as separate and changing sociopolitical contexts within which migration policies, processes and experiences take place. The paper first provides a framework as to the concept of crimmigration and how asylum seekers, refugees and migrants fall within that framework, noting how a multi-scalar legal perspective is relevant in addressing these topics. In particular, a multi-scalar approach (taking into account legal plurality) is adopted with a view to understand how gender and intersectionality operate outside of hierarchical, hermitic categories of criminal and immigration law and the traditional nation-state, including in relation to EU fundamental rights guarantees, discourses and realities.

The paper then proceeds to map out scholarship on crimmigration and gender or intersectionality, typifying the literature to date. Then, in the differing cases of Spain and the Netherlands, it overviews the study of and sociopolitical context of crimmigration generally, as well as specifically any work or understanding linking it to gender and intersectionality. This framework and context preface an analysis of interviews (conducted with a view to the research questions) with women asylum seekers in Spain, and their legal advocates in the Netherlands. Finally, concluding observations note that in each case study context, the exercise or even knowledge of EU fundamental rights to asylum and non-discrimination are negotiated tentatively given perceptions of potential penalization by systems in both countries. This entails gendered consequences for women asylum seekers, migrants and refugees, and provokes reflection on impacts on European rule of law.

Refugees’ and asylum seekers’ fundamental rights versus the multi-scalar dimensions of crimmigration

In framing this examination, again, crimmigration in this work is used as a broader transdisciplinary concept, understood as the procedures, narratives and practices of criminalizing migrants. The dynamics of the concept often entail that refugees and asylum seekers are subject to migration control or discourses surrounding migrants and migration generally (including irregular migration), regardless of their distinct legal status and right to international protection. Here, the focus is on women refugee and asylum seekers’ experiences of crimmigration and highlights the criminalization of asylum rights. In doing so, the work sidesteps debates as to the risk of crimmigration theory resting on the “premise of faulty doctrine” that constitutional rights do not necessarily apply to certain migrants (for example, irregular migrants) (Hudson, 2018). Analyzing solely experiences of asylum seekers and refugees would theoretically limit the scope of the study and refrain from entering into a lengthier debate as to rights-conferring in the context of what is perceived to be sociopolitical membership or citizenship.

Moreover, examining asylum seekers and refugees in particular can help to measure the extent to which asylum remains an EU fundamental rights issue, versus one of law enforcement and national security (Battjes et al., 2016). Various actors and narratives articulate and leverage key refugee and asylum rights and state obligations under EU law. Any violation, dilution or deprivation of access to such rights in experiences of crimmigration illustrates the ongoing dilemma of the tension between such rights and multi-actor, multi-scalar regimes and spaces that shape migrant inclusion and exclusion.

In brief, refugees are individuals recognized under the 1951 Geneva Convention relating to the Status of Refugees and its 1967 Protocol, where they are defined as individuals who are unable to avail themselves of the protection of their country of nationality “owing to well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion” and are unable or unwilling to return to that country (this definition also applies to stateless persons unable or willing to return to the country of last residence for the same reasons). The UNHCR notes that every refugee is also initially an asylum seeker. Asylum seekers may thus be considered refugees and therefore entitled to protections and rights granted to refugees, with non-refoulement and non-penalization serving as key principles, along with the right to non-discrimination. It is important to note that in this paper, asylum seeker is defined from the potential applicant’s perspective. In particular in the empirical section, it defined asylum-seekers according to how the interviewee identified themselves, rather than the state. For example, this definition would include an asylum seeker whose application did not receive a favorable decision, or if it may be an individual with irregular status who has not been able to access the asylum system.

The rights to asylum and non-discrimination are particularly the focus of this work. [1] They are examined in light of the tensions between international and EU legal frameworks of refugee protection and the criminalization of migration by multiple actors. On the one hand, these rights guaranteed in frameworks like the Charter of Fundamental Rights of the EU can be challenged by national authorities and legal systems, either via formal measures or in practice. Fundamental or human rights narratives[2] can be employed by these states or European institutions, regardless of compliance with such rights (Oomen et al., 2021). On the other hand, with the advent of “sanctuary cities,” particularly in the context of post-2015 migrant “crisis” municipal politics in Europe, an “urban politics of human rights” has arisen that base urban policies in international human rights frameworks, and links the local with alternative global governance (Wonders and Fernández-Bessa, 2021). Here, the notion of citizenship and membership can be contested and migrant rights advocated, as human rights language, agendas and implementation take shape and are negotiated, and rights violations can be grounded in specific, local instances.

In light of these considerations, in examining the case studies of Netherlands and Spain, this work takes as a point of departure the crimmigration literature that adopts a multi-scalar perspective. It finds that this perspective fits within the broader interdisciplinary literature questioning social and political membership within the confines of national identity and configurations (Flynn 2017; Oomen et al., 2021; Van Houtum and Van Naerssen, 2002). Some scholars even point to the limitations of understanding legal pluralism in terms of bounded entities and fixed hierarchies, i.e., a clean-cut separation between an EU directive or a national immigration policy. They rather point to the usefulness of untangling the asymmetrical laws, techniques and relationships, as well as the geospatial, temporal and thematic jurisdictions of law that inform crimmigration and its manifestations; in particular, they draw upon social theory to emphasize networks of power and discretionary practices, along with their discursive and multi-actor dimensions, which ultimately result in multi-level inclusion and particularly (and often) exclusion (Moffette, 2020; Oomen et al., 2021).

Crimmigration theory addressing gender and intersectionality

Within this discussion, there is room to further incorporate a gender or intersectional perspective in the study of crimmigration, in particular as it relates to the experiences of those subject to it. The work conducted to date on the intersection of crimmigration and gender has been relatively underdeveloped, including within the European context (Ogg, 2019; Van der Heijden, 2017). As further detailed below, some studies have addressed the gendered impacts and implications of crimmigration (with gender as a variable), and others have presented gendered crimmigration experiences. Indeed, these coincide with how feminist theory calls for explaining gender differences in knowledge production. However, feminist knowledge and women’s perspectives of migration and criminalization have not substantially shaped the trajectory of crimmigration scholarship (Hartry, 2012; Ogg, 2019). Moreover, while feminist research on migration and crime may thematically coincide with crimmigration theory, the latter may rest on a series of gendered assumptions and biases, and largely does not explicitly assume a critical feminist lens.

Adopting an intersectional approach, this analysis emphasizes the importance of employing gender as a category of analysis, seeking to understand the multidimensional and intersectional ways in which class, race, ethnicity, age, and sexual inequalities produce or reflect oppressive of hegemonic social systems and structures, as first articulated in Black feminist theory (Crenshaw, 1989). In this case, such systems include post-colonialist, neoliberal economic conditions and human rights systems, among others. Indeed, particularly given the subject matter of crimmigration, in that it treats of migrants, an account of multiple disadvantage along lines of race, class, and national difference is inextricable from an understanding of how gender shapes the crimmigration concept, or vice versa. Especially in addressing human or fundamental rights, the intersectional can assist in a critical evaluation of how perceptions of gender equality or human rights achievements, and current human rights data, are articulated in a very narrow sense, and can be based within biased and constricted systems (Nykänen, 2012). As Ogg suggests, without engaging crimmigration theory in reference to such a critical gender or intersectional lens, further law and policy reform can reinforce such systems (2019).

In this vein, these systems of power, oppression or inequalities are inherent to knowledge production itself, as transnational and postmodern feminist theory has already signalled (Basu, 2000; Butler, 2011). For example, when approaching crimmigration via a gendered lens, there can be tendencies to do so from the perspective of victimization and vulnerability, in terms of binaries, from the standpoint of the Global North, or generally within a Western normative framework (Abu-Lughod, 2015). Even within transnational feminist theory, critiques include that it is built upon or embedded in neoliberal, White and postcolonial structures (Briggs, 2008). Especially in examining gender dynamics within differing sociocultural contexts, and gender as performative or a social construct, this study bears in mind the importance of keeping the meaning of agency open (Mahmood, 2011). In other words, as Mahmood posits, it examines agency in its different forms, as placed the sphere of concepts within which its meaning or modalities take shape (Ibid). This approach, combined with an intersectional or gender lens that is not disjointed from material inequalities, seeks to step out of traditional or normative Western knowledge production and framing, albeit remaining cognizant that inevitable biases remain (Bracke, 2014).

Literature to date at the intersection of gender and crimmigration could be classified into several categories, with some falling into multiple categories at the same time. These works include those that: (a) explore gender as a variable, particularly differentiating gendered consequences of crimmigration; (b) record the lived experiences of different groups of women in understanding crimmigration; (c) note gendered social constructions within the crimmigration context, or how crimmigration practices and attitudes are predicated on the gendering of certain migrants by crimmigration both state and non-state actors; (d) observe configurations or reconfigurations of unbalanced or oppressive crimmigration systems of power with gendered and racialized dimensions; I specifically frame the study of crimmigration via a feminist, gendered, or intersectional critical lens.

[…]

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Footnotes

[1] Regarding legal framework informing the understandings of fundamental rights to asylum and non-discrimination examined here, the following were considered: Regarding asylum seeker considered refugee: UNCHR ‘Note on International Protection: Submitted by the High Commissioner’ (31 August 1993) UN Doc A/AC.96/815, 5; Regarding rights they are entitled to: UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, UN Doc. HCR/IP/4/Eng/REV.3 (2011); Regarding non-discrimination in EU law/policy: TEU 2 and 3; TFEU 18 and 157; EU Charter of Fundamental Rights Art. 21; Racial Equality Directive; Employment Equality Framework Directive; Qualification Directive; CJEUC‑713/17 Ayubi.

[2] It should be noted that ‘fundamental rights’ expresses the concept of ‘human rights’ within the EU context, and has been chosen as the expression of the EU toolkit. However, this work will also refer to “human rights” based in international law according to the literature cited, as this formulation is often employed in crimmigration literature, and for the purposes of analysis or description outside of the EU context.


About the Author

Colleen Boland is postdoctoral researcher at Radboud University’s Centre for Migration Law, where her principal research line as part of the Radboud University Network on Migrant Inclusion (RUNOMI) is examining platformization and visibility of domestic worker rights. She also is part of the coordinating team of the EU Horizon project Global Strategy for Skills, Migration and Development. Previously, at the Autonomous University of Barcelona, she also assisted in coordination and conducted research on asylum seeker and refugee rights as part of the EU Horizon2020 ITFLOWS (IT Tools and Methods for Managing Migration Flows). She has also recently led a research project funded by the Institut Català Internacional per la Pau, and is an associated researcher at the Autonomous University of Barcelona EUGOV (Government and Governance in the EU) Research Group.


Ciation: Colleen Boland, Refugee and Asylum Seekers Rights in Europe: Gendered Crimmigration Experiences in the Dutch and Spanish Cases, in: TRAFO – Blog for Transregional Research, 21.05.2024, https://doi.org/10.58079/11ox0



Diesen Blogbeitrag zitieren
Forum Transregionale Studien (2024, 21. Mai). Refugee and Asylum Seeker Rights in Europe: Gendered Crimmigration Experiences in the Dutch and Spanish Cases. TRAFO – Blog for Transregional Research. Abgerufen am 20. Juni 2024, von https://doi.org/10.58079/11ox0

Forum Transregionale Studien

The Berlin-based Forum Transregionale Studien promotes the internationalization of research in the humanities and social sciences. It provides scope for collaboration among researchers with different regional and disciplinary perspectives and appoints researchers from all over the world as Fellows. More...

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