Jonathan Josefsson
Department of Thematic Studies – Child Studied
Linköping University
Second draft accepted for publication in Childhood sept 2016
“We beg you, let them stay!”: right claims of asylum-seeking
children as a socio-political practice
Abstract:
Children’s rights to asylum has emerged as an urgent political challenge. This article uses a
number of cases discussed in Sweden’s largest morning paper to analyse claims of asylumseeking children and how these claims challenge the normative limits of contemporary
asylum, concerning what and who ought to be recognized by law. Even though the
universality of the child constitutes a running theme, the arguments and the conception of
children underpinning the claims are diverse. The article suggests that the claiming of rights
as a socio-political practice could be a vital analytical approach to studying children’s rights,
and offers a much needed alternative to the dominant mainstreaming paradigm.
Key words: children’s rights, asylum, right claims, deportation, socio-political practice
Introduction
Anti-deportation campaigns, petitions and political mobilization against the rejection of
asylum-seeking children have become international phenomena.1 Sweden has long identified
itself as a state of humanitarianism and solidarity in matters of foreign affairs and migration
politics (Stern 2014); nevertheless, authority decisions to reject asylum-seeking children have
drawn considerable criticism in the public debate over the years (Ascher and Eastmond 2011).
The Swedish media have served as one important site where claims of children’s rights to
residence permit have been asserted as contestations of the current Asylum Law. In the
reporting, the judgments of courts and migration authorities have been condemned as
unreasonable and inhumane by children themselves and other surrounding actors. This is
exemplified in a published letter to the editor of Dagens Nyheter, the largest Swedish morning
paper, regarding the deportation of a five-year-old girl with a severe eye disease:
“The board seems to consist of people lacking any compassion and empathy in young
children’s needs, and also to have a total lack of reading skills. Members indeed tend not to
read the Convention on the Rights of the Child verbatim, not least Paragraph 3.1 (Best
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Interests of the Child principle, my note)…all specialists agree that it is better for her to stay in
Sweden. Despite this, the board found that there are insufficient humanitarian reasons for her
to stay…you should be ashamed!” (Dagens Nyheter 2002-06-12)
The author’s indignation is an immediate reaction against the board’s decision for lacking any
compassion or empathy in an individual case, but indicates a much broader political and
moral issue. The steady flow of media reporting on asylum-seeking children at risk of
deportation can be seen in light of an increasing number of deportations and enforcement of
immigration control by liberal democratic states (Andersson, Gibney and Paoletti 2011,
Gibney M J and Hansen R 2003), and heated political and philosophical controversies
concerning immigration control, citizenship and the rights of non-citizens (Carens, 2014;
Benhabib 2004, 2011; Bosniak 2008; Wellman and Cole 2011).
In parallel, one can note a significant expansion of national and international commitments to
children’s rights. The legal provisions of the United Nations Convention on the Rights of the
Child (UNCRC) have been spreading, with increased focus on “standard setting,
implementation and monitoring” (Reynaert 2012; Quennerstedt 2013; Hanson 2014,
Vandenhole 2015) in line with a general trend of a “mainstreaming” of human rights
(Koskeniemmi 2009; UN 2014). The child-specific provisions from the UNCRC have been
used to highlight states’ failures to fulfil their international commitment to the universal
interests of the child and in unity with international law, a criticism primarily grounded in
examining the legality and correct application of international law. But despite what appears
to be a global recognition of the special rights of children in accordance with the UNCRC, the
debate on deportations demonstrates the difficulty involved in enforcing universal rights for
non-citizen children in the context of immigration (Bhabha 2009, 2014). The puzzling
tensions between universal rights for children and enforced immigration control have been
recognized by scholars before (Watters 2008; Vitus and Lidén 2010; Bhabha 2009), and thus
far, the normative questions have largely been addressed in traditional legal positivistic terms
(Bhabha 2014; Giner 2007; Sandberg 2014; Smyth 2014; Lundberg 2011; Stern 2015) aiming
for more standard-setting, implementation and monitoring of the UNCRC within what I
suggest could be called a mainstreaming paradigm of children’s rights. Within this tradition,
as Quennerstedt points out, the convention is frequently used as the ultimate definition of
children’s rights, constitutes the frame of reference, motivates the research questions, and is
the tool used to analyse the data and form the structure against which the results of a study are
mirrored (Quennerstedt 2013).
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It appears, however, that such approaches are only helpful to a limited extent in analysing the
moral and political claims of asylum-seeking children found in the public sphere in
contestation of the legal norms. One problem is that such an analysis is limited to children’s
rights as codified in international and national law, which that naturally represent the lowest
common denominator of agreement. It will therefore entail difficulties empirically and
theoretically grasping the diversity of moral and political claims formulated in the public
discourse as criticism of the current legal order itself. Moreover, the mainstreaming of
children’s rights risks reducing complex moral and political issues to a matter of
technicalities, management and compliance, and thus leaves underlying tensions and conflicts
unexplained (Reynaert 2012).
This article advances a different approach, departing from the claiming of rights in a sociopolitical practice of citizenship (Moosa-Mitha 2005, Lindahl 2013; Lister 2007, Fraser 1990).
As noted by Lister (2007), contemporary citizenship theory constructs rights and citizenship
not only in terms of legal status, but also as a socio-political practice whereby individuals and
groups are engaged in claiming and expanding rights (p. 695). Instead of studying children’s
rights with a point of departure in international agreements and domestic law with a focus on
legal discourse, this study focuses on claims as conveyed through the media reporting by
children themselves and other actors, as contestations of the law. The interest paid to claimmaking in the public discourse is further motivated by a key idea within liberal and
democratic theory; namely, that for a legal and political order to be legitimate, it should be
publically justifiable (Beckman 2008, Benhabib 2013, Rawls 1997) and based on a principle
of reciprocity (Benhabib 2013, Lindahl 2013, Rawls 1997, Young 1997). 2 Thus, even if the
legal order is found to be justified internally to itself, there is good reason to also investigate
claims in the public sphere to discuss the moral and political legitimacy of the same order.3
Approaching the claims of asylum-seeking children as a socio-political practice of rights and
citizenship appears to be particularly fruitful, since their status is somewhat ambiguous
(Josefsson 2014, 2016a); as non-citizens, aliens, making claims from the margins of or
outside the political community (Benhabib 2004, Bosniak 2008), and as children,
conventionally regarded as “citizens in the making” (Marshall 1950) or “apolitical” (Kallio
and Mäkli 2011, Nakata 2015), with limited political and legal rights (Lister 2007, Wall
2012).
The aim of this article is to empirically analyse right claims of asylum-seeking children
risking deportation, as they appear in Dagens Nyheter and how these claims challenge the law
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regarding what (materially) and who (subjectively) ought to be recognized by law. The overall
question is: how are claims of asylum seeking children’s rights to residence permits
formulated in the public sphere as a reaction against state authority’s decisions to deny
residence permit? The purpose is moreover to discuss some general implications that the
study could have on how scholars of childhood studies and children’s rights approach the
normative aspects of children’s rights as an alternative to the mainstreaming of these rights.
Right claims of asylum-seeking children: the Swedish case
Historically, Sweden has enjoyed a self-image and reputation whereby human rights and
solidarity with refugees have formed a key tenet of the country’s migration policies and
foreign affairs (Stern 2014). Compared to other European countries, Sweden has granted
residence to a considerable number of asylum-seekers per capita, of whom children have
constituted approximately 30% and unaccompanied minors – mainly boys from Afghanistan,
Eritrea, Somalia and lately also Syria – have constituted a substantial group in the last decade
(Swedish Migration Agency 2015). Still, the anti-deportation campaigns and criticism of
authority decisions denying asylum-seeking children residence have constituted a recurrent
theme in the Swedish media for decades. This reporting goes back to at least the mid-1990s,
when a growing number of children reacted with extreme distress due to living under the risk
of being deported (Ascher and Eastmond 2011). At the beginning of the 2000s, asylumseeking children with withdrawal syndrome became the topic of a heated political controversy
and put the government under pressure to change what was perceived as an overly restrictive
immigration policy (Ibid, Tamas 2003). Since then, asylum-seeking children in a poor state of
health and at risk of deportation have continued to be a recurrent theme in the media.
Material and method
The following analysis of claims for children’s right to asylum is based on news reporting, indepth documentary reportages, opinion pieces, editorials, brief notes, and letters to the editor
concerning children at risk of deportation, published in Sweden’s largest morning paper,
Dagens Nyheter (DN), during the period 2000-2013. A theoretical and methodological
starting point is that the media reporting on children at risk of deportation can be used as a
way to analyse social interaction or socio-political practice in the public sphere that
challenges contemporary law and state authority regarding what and who is to be recognized
by law (Lindahl 2013, Lister 2007, Fraser 1990). I refer here to the public sphere in a
Habermasian tradition, designating an arena in modern societies where citizens enact political
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participation and deliberate about their common affairs and that is conceptually distinct from,
and in principle can be critical of the state (Fraser 1990 p. 67). In this context, DN provides a
site in the public sphere where different actors deliberate and make claims against the state
about asylum-seeking children and their right to residence permit. The choice of DN as the
primary source for investigating children’s claims to asylum benefits from its being at the
centre of the national political debate. At the same time, the fact that it is an independent
liberal, well established newspaper limits the possibility to seize narratives, arguments and
actors from sub-debates, counterpublics and more radical political positions (Fraser 1990).4
In a first step, a search was conducted in the “Mediearkivet” database using the key words
“child”, “deport”, and “deportation”. The search rendered a total of 723 articles, among which
337 concerned other non-relevant topics (e.g. sport), 200 the general debate on immigration,
97 the general debate on children and immigration, and 89 specific cases (n=49) of children at
risk of deportation (see table). The 89 articles/49 cases concerning specific children at risk of
deportation were selected for closer analysis. The cases were relatively evenly distributed
over the years, with an average of three to four cases yearly, with peaks of six to seven cases
in 2005, 2009 and 2010. Among the 49 cases, 37 concerned children in families and 12
concerned unaccompanied children. In the reporting there was a slight predominance of girls
over boys, followed by a group of children referred to as siblings and thus of unknown
gender. The most frequently occurring countries of origin for the children involved in the
cases were Afghanistan (5) and Azerbaijan (4), followed by Kosovo (3), Serbia (3), and
Turkey/Kurdistan (3). As far as was possible to trace, at least 26 of the 49 cases (53%) were
granted residence after the reporting and appeal.5
An argument analysis was conducted according to the following steps. First, all 49 cases were
analysed with special attention to the arguments supporting the children’s claim to asylum.
Basically, the following question was posed: What are the reasons supporting the claim that
this particular child ought to get a residence permit? During the analysis three lines of claims
gradually emerged, and were identified as: claims of health, claims of well-being, and claims
of community. The poor state of health of asylum-seeking children and the formulation of
claims in medical terms stood out at an early stage as a salient pattern. However, some claims
referred to children in special need of protection from a risky, threatening and uncertain
future, but made no reference to any particular poor state of health of the child and instead to
the child’s fundamental well-being or ability to live a decent life. The claims of community, in
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turn, did not primarily refer to a poor state of health or the fundamental well-being of the
child but instead to the fact that the child had adapted to the community to the extent that
he/she had become a member of it, which built a claim for the child not being deported.
The different lines of claims are to some extent overlapping and interdependent within and
between cases, but are of distinctive character and are backed by their proper arguments. In
consequence, in some instances the different lines of claims exist in parallel within a single
case. Of the 49 cases, claims of health were identified in 18, claims of well-being in 25, and
claims of community in nine. In the following presentation, these three lines of claims will
form the structure of the analysis. A number of cases have been selected to illustrate and
exemplify broader patterns of claim-making. This means that a majority of the cases from the
news reporting will not be quoted or highlighted in the analysis. Instead, the selected cases
contain important characteristics that are representative of the claims found in the other cases.
The selection of fewer cases enables a more focused analysis while at the same time, it is
important to note, it represents broader patterns of children’s claim to asylum.
Claims of health
The case of Sudan (aged 15 years) and her three siblings (aged 17-22) from Kurdistan (DN
2003-09-29) clearly illustrates a number of cases in which public claims to asylum are made
on the grounds of poor health (N=18 ), here referred to as a claims of health. In 2003 the
siblings had been seeking asylum for about ten years, first in Germany and then in Sweden,
but repeatedly had their applications denied (2003-09-26). At the time of reporting, their
applications had been denied in Sweden with reference to the Dublin Regulation (Regulation
No. 604/2013) and stating that Sweden did not have the responsibility to try their asylum
application but that this instead fell to Germany, as the first country of application within the
EU. The case received public attention: in a full-page article the reporter portrays the situation
of Sudan and her siblings, from persecution in Kurdistan and years of hiding and uncertainty,
to the notification of deportation from Sweden and Sudan’s following depression and
withdrawal:
According to the woman who voluntarily opened her home to the three sisters last summer,
Sudan withdrew more and more. She sat alone, apathetic and without joy. She cried often, did
not want to eat, and could not sleep without strong sleeping pills. Like her sister, Nesrin, she
had nightmares every night. In late July, she was admitted to a psychiatric clinic. After a week,
she checked out again. Three days later, in her loneliness she swallowed 20 pills. She was
found by her sister, and was taken to hospital where her stomach was pumped. She was then
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admitted to the psychiatric clinic again...According to the chief physician at the clinic Sudan is
severely depressed, and suffers from a serious mental disorder. She hears voices and requires
continued hospitalization. In his declaration, he writes: “If Sudan had to leave Sweden, not
only would her psychosocial development be threatened; it would also entail a significant risk
of suicide.” (DN 2003-09-26, Figure 1)
The headline of the article, “Demir siblings have been fleeing for eleven years”, introduces
the reader to the story of the siblings as refugees and of surrounding actors having felt obliged
to intervene in a precarious situation. The reporting on Sudan and other similar cases is
characterized by the witnessing and judgment of professionals or other actors around the child
that his/her poor state of health (referring to symptoms, diagnosis or testimonials) is deemed
so serious that, if deported, this would seriously jeopardize his/her present and future health
situation, which in turn is regarded to serve as reason to grant the child residence.
More specifically, Sudan’s case represents a number of cases in which claims are made on
grounds of poor mental health (N=13), with references to diagnoses by medical doctors such
as depression, a serious mental disorder, or post-traumatic stress (DN 2003-09-29, 2009-0423, 2012-11-12), but also to observations of mental ill health by other actors around the child
such as their hearing voices, screaming, being admitted to psychiatric hospitals, attempting
suicide, or demonstrating mental breakdown or apathy (DN 2000-10-26, 2009-05-23, 201001-28). Another type of health-related claims is based on poor permanent physical health
(N=5) and diseases such as blindness (DN 2002-01-31), heart disease (DN 2002-09-10),
serious brain damage (DN 2013-02-03), cerebral palsy (DN 2008-07-15), or familial
Mediterranean fever (DN 2010-08-08). In these cases, the need for care is established through
rather concrete needs for specialist help involving training, medicine or technical devices –
help that, according to the Swedish authorities, can and should be provided by the home
country (DN 2003-09-26, 2010-08-08 and MCA 2007:5, 2013:6), but that according to the
children’s representatives is impossible to receive in practice, which would therefore
jeopardize the children’s health and development.
The reporting on Sudan can be seen against a background of the legal norm of granting
residence on the grounds of health. In the Swedish Asylum Law, “health”, “adaptation”, and
“situation in country of origin” serve as factors for legally determining a person’s right to
residence on the grounds of humanitarian reasons, in the law referred to as “exceptionally
distressing circumstances” (Aliens Act 5:6). The Act states that, for children, “circumstances
that come to light do not have the same seriousness and weight that is required for a permit to
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be granted to adults”. Precedents from the MCA demonstrate how the recognition of health as
humanitarian grounds for children has in practice been limited to a small number of cases in
which diagnoses of PTSD and life-threatening leukaemia have been issued by the professional
group of physicians and supported by medical certificates under specific standards from the
national social board (Josefsson 2016 b, MCA: 2009:9, 2013:6). In contrast, other poor states
of health such as depression, constant stress and fear, or other psychological problems –
supported by certificates from professionals such as teachers, school counsellors, psychiatrists
and psychologists – have not been regarded as sufficient evidence for recognition and the
granting of residence on grounds of exceptionally distressing circumstances (Josefsson 2016b
MCA: 2007:43, 2010:6).
The authority decision to deport Sudan and her siblings is based on their health claims not
being sufficient for legal recognition. The claims find little or no support in the current
Asylum Law, and are legally unenforceable. Consequently, by law Sudan is regarded as a
non-citizen and an alien with limited rights vis-à-vis the Swedish state. In contrast, the claims
to asylum supported by testimonies by the volunteering women, doctors and the reporter find
their normative sources in the arguments and political action of actors surrounding the
children outside the legal institutions. Sudan is regarded to have a valid claim to a universal
right to development and protection here in Sweden as a vulnerable child in a particularly
precarious situation based on humanitarianism, or with an appeal to people’s reason and
moral compass. The claims of health are intimately related to a conception of the child as
passive, vulnerable, in humanitarian need, and with little agency left to claim his/her own
rights, and consequently are primarily carried out by other actors surrounding the child such
as families, friends, volunteers, professionals, or local politicians. The public contestations of
the law demonstrate the conflict between two normative orders, the legal and state-sanctioned
order on the one hand and a moral and political order on the other, represented in the media
concerning the validity of the material (the status of health) and the subjective (the status of
the person) claims of asylum-seeking children.
Claims of well-being
Another line of claims can be referred to as claims of well-being. A case that received
considerable media attention concerned Lollo, aged 17 years (DN 2009-01-10). Lollo was
born in Lund and had lived most of her life in Sweden, as undocumented or under the asylum
process, but did not have Swedish citizenship. This case is one among several reported
between 2009 and 2013 in which children under the asylum process were taken into custody
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by the state to protect them from their parents, according to the Care of Young People Act
(1990:52), but when the parents’ asylum application was rejected the children were expelled
together with them and thus no longer had the right to protection by the Swedish state, as the
Aliens Act overrules the Care of Young People Act. In the first of several articles, the reporter
outlines Lollo’s story:
Lollo has been living in sheltered accommodation at a secret address for the last two years
since her father abused her. Now she will be deported to Croatia, where her father has
threatened to find her and kill her (…) Just over two years ago, the school realized that Lollo
and her sister were being beaten. The school made a police report, and their father was
sentenced to one month in jail for assault. ‘The girls’ situation was so severe that we decided
to take custody of them according to LVU, the Care of Young People Act, and place them in
shelters’, says Gun Hedlund, liberal, chairman of the Karlshamn social welfare board (…)
When Lollo’s case was being heard in Migration Court, she was so afraid of her father that she
did not dare go there but instead testified by telephone. ‘To expel a girl with as much need of
protection as Lollo has is completely unbelievable’, says Gun Hedlund. (DN 2009-01-10,
Figure 2)
During the weeks that followed, the debate escalated. Regarding the Migration Court of
Appeal’s refusal to hear the case, its Director General defends the decision, stating that “the
fact that Lollo would have a better life in Sweden than in Croatia is no reason for a residence
permit” (DN 2009-01-23). To the reporter’s remark, “but Lollo’s lived most of her 17 years in
Sweden”, the Director responds “that’s still not sufficient for her to be allowed to stay
according to the most relevant ruling in the case, which deals with exceptionally distressing
circumstances”. The necessary care and protection should instead be provided by the Croatian
state (Ibid). In the days that followed, the newspaper headlines reveal a tense political debate:
“Shame on you for not helping Lollo!” (DN 2009-01-28), states a reader in a letter to the
editor; “Minister required to reply regarding Lollo’s expulsion” (DN 2009-01-29); and
“Politicians want to change the new Aliens Act” (DN 2009-02-14).
The claims concerning Lollo represent a number of cases asserting claims of well-being
(N=25). Along this line of claims, the rejection of a child is regarded as seriously threatening
his/her fundamental well-being and the conditions required for him/her to live a decent life.
The claims are dependent on the determination of the situation here in Sweden and the
calculation of a future risk in their home country, or a third country, if the child is deported. A
claim of a poor state of health, as examined in Sudan’s case, could arguably also be regarded
as a threat to the child’s fundamental well-being and, in this sense, the categories overlap; but
9
the reference to well-being is not dependent upon the establishment of symptoms, diagnoses
or witnesses of a poor state of health. The threat to the child’s well-being refers instead to
other aspects, such as a general need for protection here in Sweden (DN 2006-03-29, 200901-10, 2013-02-03), the uncertain future of the child (DN 2005-12-10, 2009-08-16, 2012-1112), the risk of inhumane treatment in another country (DN 2000-04-20, 2010-06-24), the
right to a decent life (DN 2003-10-09, 2005-10-23, 2009-03-02), or the assertion that a
deportation would imply a separation from the child’s parents (DN 2000-01-20, 2004-04-20,
2011-05-05).
In Lollo’s case, like in many others, children’s uncertain futures form a narrative to support an
argument for asylum – in some cases with reference to what is regarded as being in conflict
with the UNCRC (2009-01-10, 2010-06-24, 2011-09-28). The arguments appeal to various
threats to the child, found mainly in other countries, with Sweden in contrast becoming the
“safe place”. In some cases, the specific threats consist of threats of death or abuse as a
consequence of being with family members (DN 2005-05-25, 2009-01-10, 2009-03-02), while
in other cases the uncertain future rather involves being without parents, lacking family
support, or risks connected to being placed in institutionalized care in the country of origin
(DN 2000-01-20, 2004-04-20, 2011-05-05). The uncertain future is also framed in more
general descriptions of the foreign state’s inability to protect the child and the uncertain future
that awaits him/her. While the children are not in a distressingly poor state of health, as in
claims of health, expelling them would put them in an unsafe and risky environment and pose
a threat to their fundamental well-being and living conditions, which in turn is deemed
unreasonable. Lollo’s case, along with a line of other cases, demonstrates rather clearly how
the claims of well-being addressed in the public – that a child would have a better, or at least
decent, life in Sweden than in the country of origin, also taking into consideration the best
interests of the child – have no place within the existing legal framework, as the Director of
the Migration Board states.
Claims of community
The case of the two brothers Hakop, 13, and Hasmik, 14, represents a number of cases in
which membership in the local community plays an essential role in claiming the right to stay
– referred to here as claims of community (N= 9). In 2007, when they had lived in Sweden for
five years, the brothers’ applications for residence were rejected and they were to be expelled
to Armenia, when their schoolmates, teachers and the local community started a petition
demanding that they be allowed to stay. In the article, a photograph shows their friends and
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classmates standing outside the Migration Board’s office, protesting with a sign saying, “We
beg you, let them stay!” Some of the protesters are quoted:
‘Completely sick, they’re Swedes now’, says Kevin McVey, one of many of Hakop’s
classmates who demonstrated outside the Migration Board in Stockholm on Wednesday. From
the boots of cars, students from Rösjö School and Johansson’s School in Sollentuna removed
placard after placard. ‘Let them stay!’, ‘Give us a reason, why?’, echoed the messages directed
at the Swedish Migration Board. ‘We don’t get it. Hakop and Hasmik are the nicest, kindest
and best friends you can have’, said Robin Tekes, one of the most deeply committed young
protesters ... ‘For us, it’s naturally quite incomprehensible. Here we have a family that’s lived
in Sweden for five years, the children speak fluent Swedish and are fully integrated into
Swedish society. All the family they have left in life live here in Sweden - in Armenia they
have nothing’, said sister Louisine Grigorian. (DN 2007-03-08, Figure 3)
The brothers’ schoolmates assert a claim based on the premise that they are to be regarded as
one of them: “they’re Swedes now”. They speak fluent Swedish, are the nicest and kindest
friends, have lived their lives here for five years, and are fully integrated into Swedish society.
By denying a child residence, the state threatens him/her as a member of that community and
his/her existence and ties of belonging, and as such the community itself. A rejection is not
wrong primarily because of a threat to the health or general well-being of the child, but based
on reasons of membership and ties of belonging to the community. In the reported cases,
children’s membership is established in different ways. It is accompanied by references to
having spent a de facto considerable amount of time (DN 2007-03-08, 2010-12-03, 2013-0123), a considerable part of their conscious life, or even their entire life, in Sweden (DN 200901-10, 2010-09-18, 2013-02-19); having a strong level of adaptation in general (DN 2006-0329, 2009-05-23, 2009-08-16); having become fully integrated or “being Swedish now” (DN
2007-03-08, 2009-01-10); having learnt the language well (DN 2000-10-26, 2010-12-03,
2013-11-15); or by virtue of good character (DN 2005-12-10, 2009-05-23, 2013-02-19). One
can note that membership is discussed in terms of not only time but also being of good
character and being a well-integrated citizen.
When a strong tie of belonging has been created between the child and the community, to
break this tie by deportation would – from the perspective of the asylum-seeker and the public
reactions – seem unreasonable, intuitively offensive to a sense of justice, or simply
incomprehensible. If they are going to be deported, “give us a reason why”, the friends
proclaimed in front of the Migration Board’s building. In the eyes of the community, Hakop
and Hasmik belong to “us”, and as such are to be regarded as members, citizens on equal
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terms. In contrast to the Swedish Asylum Law, which places the burden of proof on Hakop
and Hasmik as aliens to prove their right to be included in the nation-state of Sweden, the
schoolmates require the authorities to defend their decision with a reasonable justification; the
burden of justification is, in contrast, placed on the state.
In the Swedish Migration Court of Appeal, adaptation as a claim to residence has been
reasoned about in several precedents in relation to exceptionally distressing circumstances
(Josefsson 2016 b, MCA 2009:8, 2009:31, 2010:6). Although the court has discussed
indicators of integration into Swedish society such as school, work, friends, social network,
and language skills as a form of adaptation, these factors have not served as conclusive
arguments for granting a residence permit. Instead, time has become a salient factor. A norm
of two to three years’ time of legal residency in Sweden has not been regarded as “a
considerable amount of time” or a “relatively short time”, and is therefore not sufficient for a
residence permit (MIG 2010:6). A common point of confusion and controversy in the public
debate appears to be that the law does not count residency during the illegally spent time in
the country when determining the child’s adaptation, while the claims in the reporting do not
distinguish between legal and illegal time. According to the public and their respective
communities, Lollo’s 15 years of residency, or five years for brothers Hakob and Hasmik, is a
considerable amount of time and makes them members of the community, regardless of
whether it is a matter of legal or illegal time. Another point of dispute appears to be that in
several of the claims the relative time in Sweden, with reference to the child’s age or the fact
that he/she has been here a significant part of his/her life, serves as the basis for argument. For
example, if a child has resided in the country for a year and a half out of two years of life, this
is considered a significant amount of time (DN 2012-09-22). In contrast, the Asylum Law, as
interpreted by the MCA, primarily counts de facto time, whereby two to three years is not
regarded as a significant amount of time, regardless of factors of age (Josefsson 2016b).
If the claims of health are based on a conception of the child as primarily passive and
vulnerable with little agency, whereby his/her rights are primarily enforced by other actors,
the claims of community instead point to a political agency of the asylum-seeking child to
claim his/her own rights and to actively mobilize surrounding actors. These are right claims
whereby children play an active political role as citizens in formulating and enforcing their
rights in a struggle for recognition. Different kinds of political repertoires are used, such as
protests, petitions, hunger strikes, statements in the media, and so forth. One can also note
more subtle methods of enforcing political actions towards authorities and a wider public, by
12
indirect mobilization through parents and teachers. Schools are recurrently important sites of
political action taken by children, but other public spaces are as well, such as outside Swedish
Parliament, the office of the Swedish Migration Board, on city squares, and outside town
halls. These political actions do not fit into the traditional spheres of political representation
through voting or parliamentary debate, but are rather expressions of extra-parliamentary and
extra-legal actions to make claims against the state – political action and activity normally
associated with active citizenship – but conventionally not with children and childhood.
Discussion
This study has demonstrated how the current Swedish Asylum Law has been challenged in
recent years by right claims of asylum-seeking children in terms of health, well-being and
community. Even though the universality of the child, the special moral value attributed to
children, constitutes a running theme throughout the cases, the arguments and the conception
of children underpinning the claims to asylum are diverse. While claims of health are closely
associated with discourses of humanitarian reasons and based on testimonies about the “sick
child” and the conception of children as particularly vulnerable, passive, and as objects of
compassion with little agency, claims of well-being are based on arguments for a need of
protection from an uncertain future but do not presuppose any conception of children as sick
or particularly passive. In another approach, claims of community are grounded in ties of
belonging through time, language and character, underpinned by conception of the child as an
active citizen with political agency.
The shifting strategies of argumentations and the multifaceted conceptions of children point to
a normative tension in the right-claiming of asylum-seeking children. The claims founded in
humanitarian reasons and the “passivation” of the asylum-seeking child appear to increase the
child’s opportunities to be recognized as the law and contemporary regimes of asylum are
shaped today, while at the same time closing down opportunities for the child’s political
agency to enforce his/her own rights and reinforcing children’s dependency on other actors.
On the other hand, a child with political agency, as an active subject of rights with more
“adult-like” abilities to drive the political enforcement of rights him/herself, risks
undermining the traditional specificity of childhood and accordingly also limits his/her
opportunities to gain legal recognition and the right to asylum. Although the tensions between
the status of right claimants as passive/active or dependent/independent and the set of rights
available to them are hardly new to either children’s rights debates or the context of asylum-
13
seeking (Bhabha 2009, Spijkerboer 2001), what this observation reminds us is that it
continues to be a puzzling issue in the public debate as well.
In this study, the claims of asylum-seeking children for residence in some cases draw their
normative force from within current law by, e.g., making appealing to the UNCRC or certain
legally recognized diagnoses, while in other cases they are grounded in public reasoning at the
margins of or outside the legal framework and as a criticism of what is actually included in
the law. For the latter type of claims, legal instruments such as the UNCRC or child-specific
provisions from domestic legislation play a marginal role as a normative source and for the
enforcement of residence permit. Instead, these claims are intimately dependent on the
political enforcement of rights by children themselves and actors around them in a struggle
for recognition.
The study of children’s claiming of rights as a socio-political practice can have wider
implications on how children’s rights and normativity are addressed more generally by
childhood and children’s rights scholars. The work in recent years towards a legal
mainstreaming and institutionalization of children’s rights can arguably be one important
approach to the analysis of the rights of children. But the endeavour to find universal
denominators within the mainstreaming paradigm of children’s rights also closes down
opportunities to analyse the diversity of claims made in contestation of the law and the
institutionalization of the UNCRC itself. To constructively grasp the political and moral
aspects of children’s rights, the scholarly community must find ways to not only focus on
children’s rights as unity, consensus and management within a mainstreaming discourse of the
UNCRC, but also as a plurality, contestation and political claiming of rights. Through such an
analytical lens, children’s rights can challenge current legal orders and potentially evoke
another realm of possibilities to draw the boundaries of the law differently.
14
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2
We find a classical formulation by John Rawls: “our exercise of political power is proper only when we
sincerely believe that the reasons we would offer for our political actions – were we to state them as government
officials – are sufficient, and we also reasonably think that other citizens might also reasonably accept these
reasons”. For slightly different formulations of this principle see, e.g., Lindahl 2013, Benhabib 2013, and Young
1997.
3
The debate within legal and political philosophy regarding the relationship between law, politics and morals is
extensive and cannot be elaborated on within the scope of this article. See,for example, Dyzenhaus and Ripstein
1996, Dworkin 2006 and Raz 1995. In this article my intention is to put focus on how the legal boundaries are
challenged and how they can potentially be drawn differently, but not to suggest how they ought to be drawn.
4
More radical positions, which Fraser would refer to as counterpublics, can be found in e.g. web communities
and blogs like www.avpixlat.info and www.flashback.org, or
www.sverigemotrasism.se/opinion/flyktingbloggen/ and http://www.folkkampanjforasylratt.se/blogg/.
5
The fact that more than half of the cases were granted a residence permit give rise to a set of interesting
questions concerning what cases that succeeded and why. I have however chosen not to go further into such
analysis since this would significantly broaden the aim and material beyond the scope of this article.
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