Asylum migration—forced, irregular or both?

In the contexts of forced and irregular migration, an important distinction is made in the academic literature (as well as in policy and law) in relation to asylum migration. The right to seek asylum is expressed in Article 14 of the Universal Declaration of Human Rights: “Every person has the right to seek and enjoy in other countries asylum from persecution.” The term ‘asylum seeker’ is derived from the Declaration and implied in the 1951 Convention and 1967 Protocol in that a refugee must be outside of her or his country, and so have moved across State borders.10 An asylum seeker requests international protection outside her or his own country, and the status of an asylum seeker relates to the period between the lodgement of a claim for asylum with authorities and the final determination of that claim. UNHCR has described an asylum seeker as “someone who says he or she is a refugee, but whose claim has not yet been definitively evaluated” (UNHCR 2015). Wood describes asylum seekers as existing in a status pending category (Wood 1989). UNHCR also notes that mass movements stemming from “conflict or generalised violence as opposed to individual persecution” involve prima facie determinations rather than individual assessments, meaning that some refugees in effect bypass the asylum seeker stage (UNHCR 2015). Outside of mass movements (such as people escaping civil conflict in Syria), asylum seekers have their claims assessed individually by the UNHCR or the authorities of the country in which they sought asylum. Asylum migration, therefore, can be a sub-set of both forced migration and irregular migration, but not always. For example, a substantial proportion of asylum applications

are made by people who are already in a country on a valid visa (e.g. tourists, students, business visitors) (Crisp 1999, 4), some of whom may lodge asylum applications years after their initial arrival (McAuliffe & Koser 2017). These asylum seekers would not easily be captured by the concept of ‘forced migrants’ as examined earlier, and they would be considered regular migrants given their immigration status at the time of lodging an asylum claim. Examination of final grant rates of asylum seekers who undertake this approach also show that they have much lower finally determined grant rates than other groups from significant refugee-producing countries (see, for example, DIBP 2013). In some situations, and in particular where large delays between arrival and lodgement of claims for protection (such as some students who lodge an asylum application up to 1,000 days after arrival), motivations appear to be “somewhat divergent” from those of irregular asylum seekers (McAuliffe & Koser 2017).

There are also people who would more readily be considered ‘forced migrants’ and who may be found to be refugees (or in need of complementary or subsidiary protection) following refugee status determination processes but who enter a transit and/or destination country without permission of the authorities, and so engage in irregular migration. This applies also to what has been described as irregular secondary movements of asylum seekers and refugees, who having applied for asylum or afforded refugee status in one country, migrate to another (Koser 2005; Koser 2010; UNHCR 2003)—a scenario dramatically demonstrated in 2015 by the movement of many thousands of Syrian refugees from Turkey to Greece.11

Yet, there are other people who may be considered irregular migrants in one or more transit or host countries—including because of the particular policies of that country— and who may sit uncomfortably in the ‘forced migrant’ category, having passed through one or more safe countries in order to arrive in a destination country. And, in the end, these irregular asylum seekers may or may not go on to become refugees (or found to be in need of complementary or subsidiary protection). Indeed, there may be irregular migrants who resort to the asylum channel despite not needing international protection in order to gain a migration outcome.

It is useful, therefore, to separate refugee status determination outcomes and migration patterns and processes—which may variously involve irregularity, irregular secondary movements and/or regular migration. In other words, a person’s ‘refugee-ness’ is not related to the migration processes they undertook in order to reach a country and claim

asylum. This has important implications, of course, for refugee status determination processing but also for how we think about and talk about asylum seekers. As Koser argues, care needs to be taken with the convergences between asylum and irregularity given the potential for blurring of the lines in public discourse (Koser 2010). Language, therefore, is particularly important. Asylum seekers may in some cases arrive via irregular migration but framing them as irregular migrants may have the effect of masking their particular needs and rights as well as vulnerabilities. Conversely, some researchers have found that the framing of asylum seekers in destination countries can act to mask their abilities to exercise agency. In Vecchio’s ethnographic research on asylum seekers living in Hong Kong he found that (2014, 10):

…while limited by negative representations of their motivation for seeking asylum, their needs homogenised, asylum seekers are exposed to practices, networks and risks that increase their vulnerability, however, not every asylum seeker ends up living in poverty…people whose lives might as well be said to be wasted (Bauman 2004) are not only able to secure a livelihood, but also strive ambitiously to take advantage of the structural conditions said to oppress them.

In the Australian context, the use of language is highlighted by a simple example. For many years successive governments referred to people who entered Australian territorial waters in an unauthorised manner to claim asylum as ‘irregular maritime arrivals’ (IMAs).12 _{In its report to the Australian Government of August 2012, an expert panel}

appointed by the then Government chose to use different language to describe the same group of people referring to them as ‘asylum seekers’ first and foremost—hence the Report of the Expert Panel on Asylum Seekers—while also adopting both the terms ‘asylum seekers’ and ‘IMAs’ throughout its report. As to be expected, there has been considerable research on and analysis of the language used to variously describe this group of people in Australian public and political discourses (Clyne 2005; Every & Augoustinos 2007; Pickering 2001). How language and concepts are manifested and reinforced specifically in relation to statistical data collection and reporting on both irregular migrants and asylum seekers is discussed in Chapter 4.

2.4 A closer look at force and choice: The different dimensions of agency