Project description

Undocumented children’s rights claims.

A multidisciplinary project on agency and contradictions between different levels of regulations and practice that reveals undocumented children’s human rights

1. Purpose and aims: This study has a two interrelated aims. The first is to highlight the everyday experiences and agency of undocumented migrant children in general, and their claims to be right holders in particular. Drawing on Hannah Arendt’s observation that rights can be realized only in a political community where humans are not judged by the characteristics defined to them at birth, but through actions and opinions (Arendt 1951, ch 9) and Jacque Rancière’s interpretation of Arendt that the politics of human rights must be rooted in the practices of right-holders themselves (Rancière 2004) the project has a strong agency perspective that asks how the children as undocumented themselves make claims for and utilize human rights. The second aim of the project is to investigate tensions and contradictions that arise when different levels of regulation regarding undocumented children’s human rights interplay. This includes the individual (in this case, the undocumented children and adults in their immediate vicinity), the local, national and international level. One interesting example for such a query is to investigate how these different levels interplayed when the City of Malmö took a decision to give all children, independently of legal status, the right to school and childcare services. The decision was made despite the Swedish state’s reluctance towards implementing this right (Convention on the Rights of the Child art 28) in national legislation.

The project is consequently concerned with undocumented migrant children’s actions and lived experiences as well as actions by formal and informal institutions including international, national policy and city levels of regulation. Two research sites; Malmö, Sweden and Birmingham, UK, will be in focus for the field study and data gathering. The four key questions to be considered in the project includes:

How do undocumented children perceive everyday life?

How do undocumented migrant children perceive human rights and what everyday strategies do they use to get access to human rights?

What are the contradictions between different levels of regulation regarding undocumented children’s human rights, and how are these dealt with in everyday work, health care professionals, social workers and other officials?

What obstacles and/or opportunities do the above contradictions mean for the migrant children?

Despite their importance the experiences of undocumented child migrants and their coping strategies in everyday life, and the intersection with human rights, remains a much-neglected field of research. In advancing new knowledge in this area our overall ambition is that the results of the project benefit the marginalised group at the core of the project, that is, undocumented children. We also want to have a constructive approach in the sense that we reveal discrepancies and tensions between entitlements and access to human rights, by an incorporation of macro and micro indicators.

2. Survey of the field: In 2002 the Council of Europe estimated that there were between 4-500 000 irregular migrants in the EU (Koser 2010: 187) and in 2008 it was estimated that between 1.9 to 3.8 million migrants were staying as undocumented within the EU (FRA 2011). In Sweden, estimates of the number of undocumented migrants varies between 10,000 to 50,000 people (Socialstyrelsen 2011) which can be compared to US-numbers stating that over 11 million migrants are staying irregularly in the country (Ekots lördagsintervju med Tobias Billström 2 juni 2012). As these diverse numbers indicate – undocumented migrants are always difficult to identify. Data often underestimates their degree and volume, and there is no reliable knowledge on the degree of under-enumeration (Koser 2010: 181; see also White et al 2011). This applies especially to child migrants, as they have traditionally not been investigated as an independent group of individuals. Rather they have been seen as an appendage to their parents (Lundberg 2011). Research on family migration tend to overlook children’s perspectives (see f ex O’Connell Davidson and Farrow 2007), or focus on migrant children’s traumatic experiences in their country of origin (Andersson et al 2010, Brekke et al 2007, Vitus 2009, Lundberg 2011, Lundberg 2012b, Schiratzki 2005). New research has shown that for children themselves, their legal status is of utmost importance to their wellbeing (Lundberg 2012a).

The ways in which nation-states, societies and international organisations understand and shape policies towards children reflect particular assumptions about childhood and migration itself (White et al 2011: 1161). Childhood in Western society tends to be conceptualised as vulnerable and dependent which is one aspect affecting research and policy on vulnerable migrant children in the contemporary world as it contributes to essential notions of the child (Holloway and Valentine 2000; Jenks 1996). Underlying this is a belief that children are constantly ‘adults-in-the-making’ rather than social beings in there own right (James et al 1998; James and Prout 1990). As Western notions are being increasingly globalized (Horton 2008) a perception of children as ‘incompetent research participants’ results in research on children. In addition to this, stories and experiences of refugees are in general condemned as irrelevant (Eastmond 2007: 261), which further contributes to the marginalization of refugee children’s experiences and participation in research (Andrijasevic and Anderson 2009). Overall the predominance of research on particularly vulnerable groups such as refugees, asylum-seekers or separated children (see Spicer 2008), also has led to denial of migrant children’s agency and subjectivities (White et al 2011).

There is an emerging body of contemporary research highlighting the need for more research on children’s experiences that is also carried out in collaboration with children (f ex Hess and Shandy 2008; Hopkins and Hill 2008). Two studies relevant to this project conducted in Malmö, by Kullving (2011) and Söderman (2010) explore the living conditions of undocumented migrant children in the city. Also the recent publication ‘Irregular migration in a Scandinavian Perspective’ (2010) edited by Thomsen et al provides an important comparative basis for this research project.

Although vulnerable migrant children’s experiences have been silenced through ‘adultist discourses about migration decision-making and experiences’ (White et al 2011: 1159), research on children is slowly replaced by research ‘with children’, and this has contributed to a growing interest in questions on how children exert agency (f ex, Holloway and Valentine 2000). This is particularly relevant to migrant children, whose lives may involve disruption, dislocation and/or change. New research (Bhabha 2011) points to the quality of relating children to citizenship and migrant status, lifting the discussion of the issues and situation around children with irregular migration status beyond a vulnerability discourse to a level of general academic and political interest. Bhabha’s suggestion of different levels of statelessness (de jure/legal statelessness; de facto statelessness; effective statelessness) as well as discussions on ‘acts of citizenship’ (Isin 2008) by which claims and actions of undocumented migrants may lead to a temporary inclusion, will inspire the analysis of everyday strategies of the children in this research. The children’s claims of being right holders thereby can develop our understanding of children’s agency and also constitute a potentially extended responsibility of the state/city when it comes to access to rights for undocumented migrant children.

3. Project description: This research project will provide new knowledge about an understudied group of vulnerable migrants, their everyday life and everyday strategies and their relationship to state power and the city level of governance, from a human rights perspective. The human rights perspective is highly relevant as the situation of undocumented migrant children is one of the most serious human rights challenges of our time. Furthermore, it is also an illustration of larger political issues such as how human rights are constructed and acted upon and reinvented by right holders themselves in the contemporary world.

The living conditions of undocumented migrant children are a great human rights-challenge. Firstly, because the children lack the means to have their basic needs fulfilled: Undocumented migrants often have limited access to welfare provisions as education and healthcare; Children and pregnant women are denied access to emergency medical treatment on the same cost-free basis as for nationals; Undocumented migrant children are prevented from accessing public schools due to requirements to produce official documents such as permits, and to reporting practices such as police operations near schools (FRA 2011). Secondly, because undocumented migrants, lacking residence permit, do not have the prerequisites for protection: Some undocumented migrants are unwilling to seek redress from authorities because they fear arrest and deportation (Koser 2010: 191) while others find themselves in a situation of ‘legal limbo’ where legal or practical obstacles prevent authorities from enforcing a decision to return them. Thirdly, undocumented children’s situation is a human rights-challenge because there is no clear and authoritative source today on how to interpret and apply human rights obligations to the situation of vulnerable migrants: In the international community there is a growing recognition of a signifi­cant gap – at both the normative and especially the operational level – with respect to a number of groups of vulnerable migrants (Betts 2010). This gap is partly due to the fact that the realization of human rights in the post-war period in the first place has become a matter for nation-states to handle. Being outside the conventional bounds of the nation-state, in policy debates referred to as ‘Illegal’ or ‘irregular’, migrants have been contrasted to citizens and in many cases are perceived as anomalies. This paradoxically means that undocumented migrants as non-citizens, despite the fact that they are among the most defenceless and in great risk of being put in vulnerable situations, fall outside the States’ immediate judicial responsibility to respect, protect and fulfil human rights. Given that most unaccompanied migrant children are strong individuals from the beginning, who have managed to leave war and oppression behind them, the position as ‘outsiders of the nation state inside the nation state’ also forces agency in a context of a very limited living space and a subordinate position in society.

3.1 Theory: The project is inspired by Arendt’s observation in the aftermath of the World War II that the modern conception of human rights is too weak to provide for real protection of human beings. Having nothing left but an appeal to their rights as human beings, stateless people are barely recognizable as human. As a consequence of this experience, Arendt says, we become aware of the link between being a member of a political community and being able to claim protection of rights. We are, in Arendt’s phrase, not born equal but may become so in a political community. Therefore one basic human right are the most important, the right to have rights, i.e. the right to be a citizen (Arendt 1951: ch 9).

Arendt’s thoughts have been widely discussed (see f ex Benhabib 2007; Balibar 2007; Bhabha 2009; Ingram 2008; Krause 2008; Rancière 2004). Seyla Benhabib focuses on political membership and what she describes as the evolution of cosmopolitan norms. She argues that the principal category through which membership has been regulated in the modern world, namely national citizenship, has been disaggregated. Nationality and legal status are uncoupled in that increasing numbers of individuals reside in countries where they are not nationals. Furthermore, residency is accompanied by entitlement to extensive social rights; in some cases, even political participation rights are granted on the basis of residency and not citizenship (Benhabib 2007: 49).

Feminist Maja Sager in her PhD Everyday Clandestinity (Sager 2011) explores asylum seekers’ experience of the everyday challenging of exclusion, arguing that the undocumented situation needs to be explored as locatedwithin the actual borders of the nation-state but outside citizenship and the protection of the law (Sager 2011: 59). Sager illustrates how national sovereignty is challenged and negotiated at community level. Undocumented migrants ‘create access to welfare rights and personal security every day (…) through family, friends, co-patriots, individual civil servants and civil society’ (Sager 2011: 213).

Monica Krause, in her research on undocumented migrants, identifies rightslessness as the common denominator of undocumented migrants’ political existence on the territory. Drawing on Arendt, Krause shows that undocumented migrants are much more than victims; they appear also as political actors whose public appearance can be potentially explosive and liberating. Referring to Arendt’s conscious pariah (Arendt 1982), Krause illustrate that undocumented migrant’s collective action is a political activity (Krause 2008). Because the stateless embodies the contradictions of the arrangements that exclude her, her public appearance is explosive and potentially liberating.

One need not look far, neither in the Swedish nor the British debate, to conclude that the situation of undocumented migrants residing in the European region is an issue of great political significance. The categorisation of children, according them rights and responsibilities, treating them as marginalized or delinquent members, or ignoring their presence in society, have consequences not only for the children themselves but also for the state (Hess and Shandy 2008: 775).

The strong orientation in our research towards praxis as the essence of politics of human rights, is inspired by Ingram and his definition of human rights politics as ‘a creative, democratic politics of contestation, challenging particular exclusions and inequalities in the name of the open-ended principle of equal freedom, which acquires its particular contours only through this contestation’ (Ingram 2008: 413). The project will consequently develop the theoretical understanding of what human rights are, and will ask questions around what they should be. In light of a contemporary development where international treaties, binding on State parties have set into motion certain developments within global civil society, this is also relevant for a theoretical understanding of how human rights come into being. As noted by Anne-Marie Slaughter, ‘International law today is undergoing profound changes that will make it far more effective than it has been in the past. By definition international law is a body of rules that regulates relations among states, not individuals. Yet over the course of the 21st century, it will increasingly confer rights and responsibilities directly on individuals.’ (Slaughter 2003: 42f). This implies the need for an approach in research on human rights, where focus is on claims by individuals, rather than on statements of legal institutions or research on whether institutions equipped to give the receivers of human rights access to these rights.

An increasingly important site of rights claiming and global politics takes place in relation to social and health services in the cities where undocumented migrants live (Nyers 2010; McNevin 2006). In major American cities undocumented migrants have organized massive, record-breaking protests and in Europe ‘Migrant Assemblies’ are arranged to raise their agendas amidst the role of ‘citizen groups’ that dominate the voices of the European Social Forum network (Nyers 2010: 128). Corresponding to these claims from migrants there is an urban trend to expand the sphere of rights-holders so that they also include undocumented persons.

On the basis of the above theoretical framework on the development of human rights and the tensions between exclusion and inclusion of undocumented migrants then, the struggle of the undocumented children is understood in terms of a process of subjectivisation. On the one hand, the children, through their claims to be rights holders, demonstrate that they have not the rights that they have. The children do not enjoy the rights that they are supposed to have according to the various human rights treaties to which Sweden and UK are parties. By publicizing their political exclusion, the children may draw attention to their plight and the ways in which they are denied the same universal human rights from which states claim to derive its legitimacy. On the other hand the children demonstrate their equality as speaking beings despite being deprived of legal personhood. Undocumented children enact the right to have rights when they speak as if they had the same rights as the citizens they address.

3.3 Methods and implementation: Important insights can be gained simply by attempting to give space to the voices of migrant children and youth (White et al 2011). By investigating migrant children’s lived experiences and rights-claiming and how institutional practices interplay with tensions in formal regulations we will elucidate the invention and re-invention of human rights. The ethnographic approach in this project serves to illuminate the ‘space of nonexistence’ or the space of statelessness that is a space of invisibility, exclusion, repression, exploitation, but also ‘spaces of inclusion’, agency and everyday strategies to become a rights-holder. Sager (2011) demonstrates the value of ethnographic studies to grasp the contradictory character of clandestinity, and of the ways explicit and implicit links between labour market policy, migration policy and asylum rights are constructed as subjective experiences.

The project is divided into three work packages where the first one (2013-14), conducted by doctorate candidate Jacob Lind in collaboration with senior lecturer in human rights Anna Lundberg aims to provide a deep insight of undocumented migrant children’s claims to be right holders and their situation in general. The central research question is what everyday strategies do the children develop to get access to rights and also in what situations do they experience that they are respected and protected as rights holders? Fieldwork and in depth interviews will be conducted with undocumented children as well as with support networks. This part will be carefully planned in close cooperation with our existing networks in the field, such as the above Sager who, at the time of writing, conducts research on advocacy groups for undocumented migrants. To reveal how the children subjectively experience life and negotiate agency, we will adopt a child-centred participative research design. This means that we have flexibility during the fieldwork (see f ex Mackenzie and Pittaway 2007 on iterative consent). What we do, how we choose to explore the undocumented situation is a question that is constantly alive in the research.

The two local contexts that will be investigated in the project are Malmö in Sweden and Birmingham in the UK. These cities are fruitful sites for the study due to both similarities and differences between them in terms of interpretations of international norms, as well as welfare and migration regimes on the national level, and in terms of how processes of inclusion/exclusion are played out on the local level. In the United States there are around 11 million migrants living as undocumented, and their situation has been described in terms of a ‘parallel society’ developing. Two reference groups will be established in the project and meetings will be held through Skype; One with action oriented researchers, politicians and practitioners meeting undocumented migrant children in their profession, and one group with activists/support persons to undocumented migrant children.

In the second work package (2014-15) carried out by Associate Professor Mikael Spång in collaboration with Lundberg we will investigate and describe those human rights that undocumented children are entitled to under international and national law as well as at the city level of regulation and implementation, and investigate contradictions in the regulations. Central points of departure are those everyday strategies described by the children in the ethnographic fieldwork conducted in phase one. By identifying the children’s needs and everyday strategies, we are able to examine, in a second step, the extent to which international agreements meet these needs, and whether claims to be right-holders have any bearing on cities’ policy development.

The third work package of the project (2015-16) carried out by Senior Lecturer Michael Strange in collaboration with Lundberg will focus on policy documents developed in the two cities between 2002-2012 and how they are dealt with in relation to national and international levels, in practical everyday work. To get access to civil servants experiences we will conduct a survey investigation.

We will disseminate theoretical and empirical research (2017) through academic publishing channels, and formulate policy relevant knowledge. The plan for dissemination includes a conference (2016) in Malmö, edited volumes and peer-reviewed journals, a doctoral dissertation and masters thesis as well as workshops at conferences and popular articles. Lundberg and Strange will supervise the doctorate candidate Jacob Lind. Strange will have primary responsibility for conducting the survey of civil servant attitudes towards legislation concerning undocumented child migrants, utilizing past experience with surveying policy makers at different levels.

Regulatory structures mean undocumented migrants typically are not easily accessible for empirical observation. This constitutes a particular challenge for good research design that needs to be considered. During the first project year we will establish contacts, present the project, discuss and establish terms for the fieldwork. As a minimum we will spend two months of intense field work in each city. We will also establish more long-term contacts and return regularly to the sites. The project is also well-equipped to overcome this obstacle through building upon a study in Malmö during 2012, ‘Papperslös=rättslös?’ where entitlement and access to welfare services for unaccompanied children is studied through the empirical case No-border musical (2012). The musical, partly financed by Olof Palme Memorial Fund, aims to visualize the situation for undocumented migrants in Sweden and highlight a growing resistance as regards today’s restrictive asylum policies, and also to convey the hope of a world where no human is illegal, where freedom is a right that applies to all.

 

4. Significance: This research will provide in-depth knowledge about the situation of undocumented migrant children from the point of human rights. We will highlight the development of human rights provisions on different levels and the tensions that exist between these levels in providing for central human rights. Furthermore, it will be highlighted what kind of everyday strategies undocumented children use in order to claim rights in their everyday lives, and what influence their rights-claiming has on city level of governance. This is of central importance especially with regard to this group since they as children and non-citizens lack several of the traditional opportunities for political action. Finally, the project will provide theoretical insights of the contested meaning of human rights at different levels. Further we strongly hope to create conditions for a reasoned public debate around highly controversial subjects.

 

5. Preliminary results. Söderman conducted her master project, I am Dublin (2010), with undocumented migrant children residing in Malmö and Malta, and analysed the children’s experiences from an intersectional perspective. By making the children visible as actors in the everyday life Söderman visualized the correlation between power and inequality. The thesis also contains a comparison of the situation of the children in Sweden and Malta, providing deeper insights. At the time of writing Söderman and Lundberg, in collaboration with asylum activists and undocumented children, are investigating undocumented children’s access to the human right to health. The contact established during the project, as well as the results, will be of importance for the project subject of this application.

6. International and national collaboration: Several larger European projects will provide important basis for comparative data and methodological inspiration for our research; CLANDESTINO, Platform for international cooperation on undocumented migrants (PICUM), International Organization for Migration (IOM), and NOWHERELAND all aim at creating a knowledge base for providing and developing good practice of services for irregular migrants. Lundberg (project manager) is involved in a Nordic Network for Research cooperation on unaccompanied refugee children supported by FAS and also cooperates with Danish and Norwegian researchers in the preparation of a research project named Irregular child migrants in Scandinavia (NordForsk). Spång has collaborated in several projects on immigration policies and citizenship policies in Europe with Professor Thomas Faist from Bielefeld University, Germany. Strange has published in numerous international peer-reviewed journals on social movements, equipping the project with a strong appreciation of citizen activism that will aid better analysis of undocumented migrants’ own political agency.

7. Ethical considerations: There are specific challenges connected to research with undocumented migrants. One central issue is whether the research in the end can serve to inform the state’s actions regarding the controlling of migration (Düvell, Triandafyllidou and Vollmer 2010). Our ambition is to discuss potential dilemmas that arise in this regard with our reference groups and also with colleagues working on similar issues, ie within the above networks. A strong argument in favour of conducting research of the present kind despite the above challenges is that there is a risk for further discrimination of marginalized groups if researchers avoid addressing controversial subjects. This since avoidance can lead to neglect of issues concerning these groups (Düvell, Triandafyllidou and Vollmer 2010). Conducting research with migrants in precarious situations concerns issues of asymmetric power relations, representation, trust and suspicion, confidence, risks, benefits, autonomy, agency, gender, cultural differences, human rights and social justice (Mackenzie and Pittaway 2007: 300). These challenges will be dealt with by a sensitive construction of research design, based on earlier research and our previous experiences. We will also discuss our plans of procedure with colleagues and with our reference groups. Under the premise that the project gets funding it will undergo ethical review.

 

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