Dissemination, conferences and research reflections.
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Dear Reader, 
You receive this newsletter because we believe you might be interested in the progress of the research project Provision of Welfare to Irregular Migrants (PROVIR). 

From Data Collection to Publication and Dissemination

The project Provision of Welfare to Irregular Migrants (PROVIR) is now more than half-way through. The anthropologists involved have more or less completed their fieldwork. Both anthropologists and researchers from the Faculty of Law are entering the phase where we are communicating findings and starting to publish results. There are already some publications available from the project. The project participants have also presented their work in several conferences and seminars.
 
To facilitate exchange and discussion amongst the project’s interdisciplinary participants, we have gathered relevant international and national laws and documentations on our webpage, as well as links to the media debate on irregular migrants (in the Norwegian language).
 

Human Rights and Asylum and Refugee Children

Karl Harald Søvig is invited to present his work in the conference on Asylum and Refugee Children. Rights – Possibilities – Limitations organised by MIKS (Resource Centre for Integration and Interaction) in Bergen, 24-25th of September 2013. Søvig will discuss the legal situation and management of asylum children in an international human rights perspective.

 

Enacting Borders

In September Synnøve Bendixsen and Christine Jacobsen participated in the session Enacting Borders: Perspectives to the Management of Migration at the International Metropolis Conference held in Tampere, Finland. The session explored how borders are not only a matter of geographically physicality, but also about practices that manages migration. The papers addressed the notion of the border as an act, as something that is ‘done’ and produced through political practices and not as an extant state of affairs. Synnøve Bendixsen’s paper Constructing the undeserving subject: irregular migrant’s bodies in the Norwegian Welfare State examined how irregular migrant’s understandings of their sick body are shaped by their particular locations and embodied encounters with state processes and officials, and how the state manifests itself in their lives. Christine Jacobsen presented a paper entitled The production of ‘illegality’, deportable subjects and sick bodies: Tunisian migration to Marseille after the Jasmine revolution. In the paper, Christine examined how ‘illegal’ migrants in France are produced in contemporary regimes of migration control and deportation.
 

Upcoming Activities

This semester members in PROVIR will continue with the biweekly working seminars, also with invited guest speakers. For an overview of former guest speakers, see PROVIR webpage. Andrea Sussman is organising our reading group where PROVIR members will present and discuss work by Giorgio Agamben, Gregor Noll and Hannah Arendt. Marry-Anne Karlsen will spend half a year at COMPAS, Oxford, one of the project’s international partner institutions, as part of her PhD program.

Research Reflections

The project’s two PhD students, Marry-Anne Karlsen and Andrea Sussman, are now in the middle of their PhD period. They provide us with some reflections that are important in their work: 

On the everyday ethical dilemmas of fieldwork

At one stage during fieldwork I was following one of my informants to a meeting with a lawyer she hoped would help her get legal residence. Afterwards we were going to see a NGO that hopefully could help her get medical treatment. For me this represented a great “research opportunity”. Not only was I given an opportunity to be a participant observer to her strategies to gain access to health care, my research topic, I would also be able to observe how these intermingled with her attempts to get regularized. Her gratefulness and fear that she was imposing too much on my time asking me to accompany her to both meetings, was therefore quite ironic. I met her at the bus station half an hour before the appointment and we walked together to the lawyer’s office, talking about her hopes and fears. She was clearly excited, but also very nervous. Walking along she suddenly turns to me, asking: “Are you coming with me as a friend or as a researcher today?”
 
Ethnographic fieldwork is often described as “deep-hanging out”, and more than in other disciplines intimacy and deep-interaction is a trademark for anthropological research. As ethnographic research depends upon human relationship, engagement, and attachment, getting as close as possible to your informant to learn their “hidden secrets”, is still a core disciplinary ideal. My informant’s question thus strikes right at one fundamental dilemma of ethnographic fieldwork; how and where do you draw the lines between a friendship and a research relationship? How do you balance intimacy and distance? What kind of power dynamics are involved?
 
There is no easy answer to these questions. As Malkki (2007) notes[1], ethics in the field is not a code, but a process. Good social research demands a ceaseless, daily engagement with ethics. For instance, you cannot completely eliminate the asymmetric character of the relationship between researcher and researched, but you can be aware of, understand and respond to it in a critically reflexive manner. It was thus important for me to have an open and continuous dialog with my informants about my role as a researcher. Also, being part of a larger umbrella project working on this issue is a great advantage as it provides me with an environment for continuous reflections around the quotidian ethical dilemmas that arise.
 

Marry-Anne Karlsen


 

[1] Malkki, Liisa H. 2007. Tradition an Improvisation in Ethnographic Field Research, in Improvising Theory: Process and Temporality in Ethnographic Fieldwork. Chicago: University of Chicago Press


Mirror mirror on the wall: The potential value of the right of equality and non-discrimination

Only very few human rights are considered absolute or unlimited – the vast majority of human rights, including the right to health and the right to social security,[1] are

 conceived to have relative validity in that they may be subject to limitations. This means that a state may interfere with, i.e. restrict access to, socio-economic human rights without causing a violation of such rights, provided that the interference can be legally justified under the relevant treaty. Amongst the various means to which states can legally restrict human rights to non-nationals (or any other human being), the right to equality and non-discrimination under international human rights law may, as suggested by Hathaway,[2] have the potential to be of

 greatest value. This is because, albeit limitations are ‘necessary and normal elements of the [entire] human rights treaty system’[3] reflecting the search for a fair

 balance between the ‘demands of the general interest of the community and the requirements of the protection of the individuals fundamental rights’,[4] the flexibility or discretion States

 enjoy in their implementation of human rights is not without normative limits. In this perspective limitation clauses may operate as protection against arbitrary and invidious interferences in that they prescribe the conditions on which restrictive measures can be applied. When such measures are imposed on persons belonging to a distinct group, such as non-nationals, or States differentiate between different groups in the implementation of a human right, the prohibition of discrimination may function as a further limitation on States’ discretionary powers. This is because, while the obscure language in which socio-economic human rights are embodied and the progressive nature of state obligations under such rights may bestow States with significant leeway in the implementation thereof, the prohibition of discrimination is a crosscutting duty of immediate effect. What is more, although the right of equality and non-discrimination can only be applied in conjunction with one of the substantive rights protected by the covenant in which the discrimination clause is situated,[5] its

 application may not be dependent on the finding of a violation of any of the substantive rights: it is seemingly sufficient that the alleged discriminatory treatment falls within the ambit of one of the substantive rights in the relevant covenant. At the outset, this suggest that the prohibition of discrimination may bestow irregular migrants protection under international human rights law beyond the limited (and uncertain) scope of the ‘minimum essential core’ of rights as advanced by the UN supervisory organs. Hence, in order for States to legally interfere with the human rights of irregular migrants, they must inter alia do so in a non-discriminatory manner.Evidently, the way in which the authorization of States to interfere with human rights is framed by means of limitation clauses and the prohibition of discrimination, is intrinsically linked to the question of the precise scope of States obligations[6] and thus,

whether or to what extent immigration policy objectives may legally justify interferences with the prima facie human rights of everyone. The value of the potential protection of the prohibition of discrimination is therefore, of course, a question of how this duty is framed.
 
Essential to the idea of non-discrimination is the Aristotelian maxim of equality – likes should be treated alike and unlike on account of their differences. Differential treatment that breaches the principle of equality is invidious and arbitrary, hence discriminatory.  Inevitably, what follows is a process of comparison: it is not possible to determine whether a human rights’ interference is discriminatory without comparing the treatment of the complainant with that of the relevant other. And herein lies the crux: Who is comparable? What is it that qualifies for equal treatment, or conversely – submitting a concept of substantive equality – differential treatment in order to obtain equality of result, opportunity or dignity? What is it that is to be compared? Framing the subject of the comparison and finding a relevant comparator is crucial not only in determining whether there has been differential treatment: It is essential also to assess whether a distinction can be legally justified, viz. whether it pursues a legitimate aim, is sufficiently necessary and proportionate. This is because the questions of comparability are not merely posed on the level of applicability of the right to non-discrimination (viz. whether distinctions are made). It is above all placed at the level were the real value assessments governing equality analysis take place, hence the level on which the justification for an alleged discriminatory measure is to be judged.[7] This inextricable link between the criteria or

principles governing the verification and validation of the justification offered and the process of comparison means that framing the relevant comparable persons or situational elements may have far-reaching consequences for – or limitations on – possible discrimination claims, in particular those of irregular migrants. On the one hand, limitation clauses and the prohibition of discrimination may frame and construe the discretion or margin of appreciation states enjoy in the implementation of human rights, including in the determination of to what extent and with what means to restrict them. On the other hand, such provisions inevitably provide for a framework for limiting human rights prima facie bestowed to everyone on the sole condition of being human, and thus contrast the universal plight of ‘equal and inalienable rights of all members of the human family’.[8] Therefore, addressing the process of comparison that

inheres in the prohibition of discrimination under international human rights law is imperative to unfold the potential value of this duty for the protection of human rights of irregular migrants.
 
 


[1] As enshrined in inter alia Article 12 and Article 9, respectively, of the International Covenant on Economic, Social and Cultural Rights.
[2] James C. Hathaway, The Rights of Refugees under International Law, Cambridge University Press 2005, p. 123.
[3] Amrei Müller (Müller 2009), Limitations to and Derogations from Economic, Social and Cultural Rights, in Human Rights Law Review 9:4 (2009), pp. 557-601, p. 564.
[4] The European Court of Human Rights, A 161 (1989); 11 EHRR 439 at para 89.
[5] With the exception of Article 26 of the International Covenant on Civil and Political Rights, whose application is not confined to rights protected by the CP Covenant.
[6] Müller 2009 p. 558.
[7] Cf. Oddný Mjöll Arnardóttir, Non-discrimination Under Article 14 ECHR: the Burden of Proof, in Scandinavian Studies  In Law 1999-2012 pp. 14-39, p. 32.
[8] Preamble to the Universal Declaration on Human Rights

 

Andrea Sussman
 

[1] As enshrined in inter alia Articles 12 and 9, respectively, of the International Covenant on Economic, Social and Cultural Rights.
[2] J Hathaway, James C. 2005. The Rights of Refugees under International Law, Cambridge University Press, p. 123.
[3] Müller, Amrei 2009. Limitations to and Derogations from Economic, Social and Cultural Rights, in Human Rights Law Review, 9:4, pp. 557-601, p. 564.
[4] The European Court of Human Rights,  A 161 (1989); 11 EHRR 439 at para. 89.
[5] With the exception of Article 26 of the International Covenant on Civil and Political Rights, whose application is not confined to rights protected by the CP Covenant.
[6] Müller 2009, p. 558.
[7] Cf. Oddný Mjöll Arnardóttir, Non-discrimination Under Article 14 ECHR: the Burden of Proof, in Scandinavian Studies, in Law 1999-2012, pp. 14-39, p. 32.
[8] Preamble to the Universal Declaration on Human Rights.

About the project: Provision of Welfare to Irregular Migrants (PROVIR) is a four-year research project 2011-2014 based at IMER Bergen/Uni Rokkansenter and carried out in collaboration with Faculty of Law at the University of Bergen. PROVIR is funded by the Research Council of Norway’s VAM programme. The project consists of two separate, yet interwoven parts: 1) A legal study of national and international rules applying to welfare provisions to irregular migrants; 2) A social scientific study of institutional practices and attitudes towards this population and irregular migrant’s access to, use and trust of social welfare, in particular regarding health and education. 
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