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Children at the Borders - law, politics and ethics of children's rights to asylum

 

Global migration is one of the greatest political challenges of our time. The UN Refugee Agency (UNHCR) reported that by the end of 2014, 59.5 million individuals were forcibly displaced worldwide, of which children constitute about 50%. The current situation, in which large populations of children migrate and cross state borders in search of protection and a better life, gives rise to a wide range of legal, political and ethical questions about children´s rights to asylum. In recent years these questions have been granted considerable attention in the media and at the political agendas in a line of western and European countries. The media, NGO´s, governments and scholars have been involved in reporting, condemning and responding to the urgent humanitarian needs of asylum-seeking children, for example, the “child migrant crisis” at the southern borders of the US, children on the Mediterranean Sea, children in detention homes or in danger of becoming victims of trafficking or children in risk of deportation after long periods of residency. [1]

This is occurring at a time when, on the one hand, a nearly global recognition of universal children’s rights under the United Nations Convention on the Rights of the Child (UNCRC) can be noted, while, on the other hand, there is strong political pressure for the national regulation of immigration and enforcement of border controls. The spread of child-specific provisions that give special (universal) priority to children has grown significantly over the last decades, simultaneously as reports are recurring of asylum-seeking children in humanitarian need as a result of coercive border politics.

Scholars, international political bodies and children´s rights advocates have so far mainly been addressing these questions in traditional legalistic terms as “a gap between theory and practice” of children´s rights or as a case of “state failure” to fulfill commitments in accordance and unity with international law and universal interests of children. Another line of research has been paying increased attention to children´s roles, experiences and perspectives in transnational migration, in what might be referred to as a “childhood turn” by use of ethnographies, interviews and surveys. The present thesis advances a somewhat different theoretical and methodological approach to normativity and children´s rights to asylum.

The overall aim of the thesis is to address legal, political and ethical aspects on children´s rights to asylum in a contemporary European context, using Sweden as a case study. It combines an empirically oriented approach using materials from Swedish media reporting and precedents from the Swedish Migration Court of Appeal, with a theoretical interest of the moral and political status of asylum seeking children in contemporary political philosophical debate about membership, rights and borders. It consists of three main sub-studies.

In the first study focus is put on the translation of nearly universally recognized children’s rights principles into a domestic practice of immigration control and explores how legal norms regarding children’s rights to asylum have developed in the Swedish Migration Court of Appeal 2006-2014. Court decisions are analysed with focus on the meanings given to the best interests of the child, how this is given weight against state interests of immigration control, and how children’s interests are given normative force. The purpose is not to analyse the legality or correctness of the court’s decision-making in relation to some specific normative standard, doctrine or conception of law. But instead to analyse what legal norms and practices of immigration control that is made possible within the present regime of children’s rights. 

The second study uses a line of cases in Swedish media from 2000-2014 together with Hans Lindahl’s (2013) concept of A-legality to analyze how children´s claims for asylum challenge the normative limits of contemporary asylum law, not only from within or in unity with domestic and international law, but from the outside of traditional institutions and as disruptions of the legal order itself. Media reporting of anti-deportation campaigns and political mobilization against the expulsion of asylum seeking children challenge the legal order materially by claims of health, well-being and community in ways that are unorderable within the now existing legal framework. The claims also challenge the legal order subjectively by offering alternative possibilities to conceptualize the asylum seeking child, not only as a depolitized target/object of compassion in humanitarian need or as an alien, a non-citizen with limited rights, but also as a an active citizen (member) with political agency to claim its own rights.

The third study focuses on children as political subjects within contemporary political philosophical debate about human rights (E.g. Seyla Benhabib, Charles Beitz, Martha Nussbaum). While there have been quite a lot of attention paid to the justification and legitimacy of human rights in political theory in general the last years, there is a striking silence about children as a category in this debate even though they constitute a significant part of the world population target of human rights policy. 

 

[1] In recent years public and academic debates about children and asylum have been a recurrent theme in countries such as Norway, Denmark, Netherlands, UK, Australia and the US. The debates vary in character and need to be put in their respective contexts. Nevertheless, what unites the public debates is the focus on children as a category that in one or another way is in a particularly vulnerable situation, having a special moral or public value that evokes political controversies about immigration policy. See e.g. In the UK: Andersson 2012, Giner 2007, in the US: Bhabha 2014, VOX 2014 , in Norway: Vitus and Liden 2011, Ekendal 2014, In Denmark: Vitus and Liden 2011; In Netherlands Kromhout 2009, Defence for Children 2015, Australia: Children Out of Immigration Detention 2015.

jona

  

PH.D.

Telephone: 013-28 56 76
Fax: 013-28 29 00

E-mail: jonathan.josefsson@liu.se

Address:
Department of Thematic Studies -
Child Studies
Linköping university
SE-581 83 Linköping

PROJECT

 


About Child studies

Child Studies is an interdisciplinary research unit focusing on issues regarding children, childhood and family in history and society. Education in Child Studies: under graduate level, master level, graduate level (Ph.D).



About Tema

The objective for Tema - The Department of Thematic Studies is to pursue excellent research and education at undergraduate and advanced levels relevant to society.

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