Julia M. Eckert (ed.) The Bureaucratic Production of Difference

**Culture and Social Practice**

**Julia M. Eckert**, professor of political anthropology at the University of Bern, explores the relation between moral norms and legal change with a particular focus on changing institutions of responsibility, liability, and redistribution. She connects these with current contestations over democratic representation, participation, security, and citizenship.

Julia M. Eckert (ed.) **The Bureaucratic Production of Difference**

Ethos and Ethics in Migration Administrations

The publication was made possible by generous funding by the Swiss National Science Foundation

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#### **First published in 2020 by transcript Verlag, Bielefeld © Julia M. Eckert (ed.)**

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### **The Office** Ethos and Ethics in Migration Bureaucracies1

*1Julia Eckert*

#### **What do they think they're doing?**

All the contributions to this book engage with this particular question. Following the intricate analyses of what bureaucrats do,2 we now wish to consider what they *think* they're doing. While their answers might be inter-

1 The research underlying this article was made possible by a generous fellowship at the Kulturwissenschaf tliche Kolleg Konstanz. I would like to thank all those participating in the discussions of the bureaucracy group at the KuKo for the insights and inspiration I gained from our conversations, namely Arthur Benz, Pascale Cancik, Mirko Göpfert, Thomas Groß, Hans Christian Röhl, Christian Rosser and Marcus Twellmann. I would also like to thank Werner Schif fauer for many inspiring discussions about states and their knowledge practices. I am grateful to Olaf Zenker, David Loher, Simon Af folter, Simone Marti, Laura Af folter and Raphael Rey for our productive discussions on bureaucratic practice. Last but not least, I would like to express my gratitude to the participants in the workshop "Ethos and Ethics in Migration Bureaucracies" that took place in September 2015 (just as Angela Merkel opened Germany's borders to refugees) for inspiring our conversation on that occasion, particularly those whose insightful contributions are not part of this publication, namely Heath Cabot, Fiorenza Picozza and Anna Tuckett.

2 Rather than "bureaucracy", it might be better to speak of "administration", as the term bureaucracy is of ten used in the context of criticism. (I am grateful to Pascale Cancik for alerting me to this with her wonderful historical research on the subject. See Cancik 2004.) As we noted, people never call themselves bureaucrats. Instead, they employ terms such as civil servant, state servant, state of ficial and social worker. The use of bureaucracy as a term of criticism alerts us to deliberations of the value of dif ferent types of skills and knowledge, the aloofness attributed to law and knowledge of procedures, contrasted with "knowledge of reality". At the same time, the reliance on references to "legality" or procedural correctness and consistency provide an insight into competing scales of value. This question of terminology is not merely a matter of the self-denomination of of ficials, but also the search for an appropriate analytical term that might encompass the open bound-

preted as neutralisation strategies – ex post justifications for actions that are shaped by a myriad of concerns – we hold that tracing what bureaucrats think they are doing is worthwhile for two reasons. First, we believe that what they think they *should* do shapes what they actually do as much as other constraints, whether this concerns their efforts (successful or unsuccessful) to act in what they consider an ideal manner or the formation of rationales for diverging from ideal behaviour. Second, we claim that their thinking is shaped by notions of the "office", i.e., the duties and obligations of an administration related to specific political projects. Exploring what bureaucrats *think* they do tells us about the delineation and definition of the moral community that a bureaucratic apparatus is concerned with.

To explore what *they* think they do, we employ the concept of ethics as the basis for investigating the value rationality of bureaucratic practice and its normative orientations. We see a lacuna of research on ethics in bureaucracy. Recent critiques of bureaucracy have focussed on the instrumental rationalities of bureaucratic practice, considered its orientation towards extra-bureaucratic normative demands, or posited that bureaucracies are fundamentally amoral in character (Bauman 1989; Graeber 2015; Herzfeld 1992). While some critics have attended to the wider ideological frames within which "anethical" bureaucracies are embedded, and, as in the case of Michael Herzfeld, explored the effects of an anethical role on affects (indifference or aversion), most have not examined the ways in which an ideological frame is (re-)produced in the specific narratives, categorisations and normative orientations that shape bureaucratic practice. One could say that they have fallen victim to an inf lated Weberian image of rational legal rule that considers ethics and bureaucracy to be antithetical, and restricted their critical impetus to this horizon. These critiques echo early criticisms of bureaucracy, which actually coined the term (Cancik 2004), by caricaturing bureaucrats as "automatons" that stick to the rules, the letter of the law, and are indifferent towards and ignorant of the world's true problems.

Other studies of civil servants have examined the various concerns and normative orientations that shape bureaucratic practice, be it career orien-

aries of state administrative services. Such services of ten include organisations paid for by the state, but not staf fed by civil servants employed by the state, to perform tasks that are interrelated with state administrative services. This also includes "civil society" organisations that are funded independently, but form part of the institutional assemblage around issues defined by state administrative concerns, such as "refugees".

tation; intra-administrative competition; extra-administrative obligations towards kin, neighbours or dependants; or simple economic interests. This laudable attention to the multiplicity of concerns that shape the practice of civil servants has introduced diversity to the image of the bureaucrat as a rule-following automaton and brought to the fore the multifarious normative orders that civil servants often operate within. What has disappeared from view, however, is how the practice of civil servants might be shaped by ideas of their "office", their "volitional allegiance" (Gill 2009: 215) to their entrusted tasks (see also Bierschenk 2014: 237-238). The ethics of office generates a specific notion of the commonweal, which structures the proper application of rules in bureaucratic practice. I use the term "commonweal" to signal a conf luence between a vision of community and the goods that a community shares in. It encompasses both "commonwealth" and "common good". Neglect of this dimension of normative bureaucratic orientation has been detrimental to our understanding of how particular ideological projects, inherent in specific delineations of the commonweal, are actually translated and produced in administrative practice.

Here, we propose that ethics are intrinsic to bureaucracy. This does not make bureaucracy "good", "benevolent" or "democratic", as Du Gay (2000) suggests. Our notion of ethics is empirical (see also Fassin 2012: 4), not normative. To understand how "rule following" works, we need to attend to the ethics of office, because bureaucratic ethics defines how a specific idea of the commonweal is served. It delineates moral communities composed of those abiding in the common good from others who are excluded. In order to understand how certain political projects of specific governmentalities are put in place, we must heed the ethos and ethics at play at specific historical points in the administrative apparatus.

Contributions to this volume follow what Wedel et al. (2005: 34) suggested were a necessary focus of anthropological research on policies, namely "understanding the cultures and worldviews of those policy professionals and decision makers who seek to implement and maintain their particular vision of the world through their policies and decisions". To overcome the individualist bent often implicit in analyses of bureaucratic discretion, which might be entailed in the examination of personal worldviews, we go further by linking such worldviews to notions of "the office", and focusing on relations among political projects entailed in specific notions of the commonweal, understandings of professional roles and bureaucratic practice.3 Such professional worldviews are shaped by the structural position of particular offices at specific moments, and their designated roles within a hierarchy of offices are geared towards maintaining the good of the commonwealth.

Our aim is thus twofold. First, we introduce the notion of ethics in order to argue against the stereotype of the bureaucratic automaton, which does not account for the way normative frameworks impact on administrative conduct. Second, we address bureaucratic ethics as a means of overcoming the individualistic bent in examinations of bureaucratic discretion, and relocating the duty or obligation of the "officium" in particular relations of domination in particular historical situations.

Our analyses centre on migration bureaucracies. Here, the production and management of categories of difference, which delineate the right to partake in the commonweal, are particularly visible. All bureaucratic agencies engage in differentiating and delineating the eligibility of access to goods and services and participation in decision-making. Migration bureaucracies are not specific in this regard, but in the contemporary world of nation states where the "right to have rights" (Arendt 1968: 177) is dependent on citizenship status, they distinguish most clearly between who can partake in the commonweal and who cannot. "In contrast to other bureaucracies, (return) migration bureaucracies govern utopian social orders not through the governance of a common good, but through the shaping of the community itself," as David Loher writes in this volume. More than a territorial line separating two polities, borders differentiate access to the rights and goods within a polity. They define the moral community with which a bureaucratic ethic is concerned. Inasmuch as borders differentiate access, migration bureaucracies comprise all state agencies involved in such an endeavour. We hold that, through their work, migration bureaucracies actually produce these borders (see also De Genova 2016). A vast array of different agencies engage in delineating differential access to the specific services they administer among citizens, various categories of legal migrants and the equally numerous categories of illegalised migrants. It is not as though the assemblage of administrative actors managing differential access to rights

3 Heyman has earlier engaged with what he calls the "thought-work" of bureaucrats and held that "observations on thought […] can be used to characterize the society, polity, and economy that have produced specific 'thinking situations'" (1995: 264).

and resources is a coherent and coordinated apparatus; instead, practices in these diverse "bureaus" are shaped by the diverse bio-political or disciplinary efforts they are tasked with. As they follow specific goals and logics, they are shaped by their specific role in serving the commonweal as it is defined at a particular place and time.

Such matters of definition and interpretation are intrinsic to bureaucratic work, as they establish how a specific bureaucratic agency can best serve the commonweal. We are concerned here with more than merely an extra-bureaucratic, ethical definition of the commonweal, as has often been proposed. Rather, narration, interpretation, contestation and affirmation define and interpret the commonweal in relation to the specific tasks an agency performs, and also determine who legitimately shares in the common good. Thus, close attention to ethos and ethics in the orientation of civil servants can elucidate changing understandings of the commonweal, and articulate shifting delineations between legitimate members and those defined as illegitimate.

#### **Bringing ethics back in (to the study of the state)**

Ethos and ethics: Both terms go back to Weber. For bureaucracy, only the bureaucratic ethos seems to have survived in our academic memory. But Weber distinguished between the two terms. Ethos denotes the assemblage of values that underpin procedures, such as, for example, rule orientation, consistency, efficiency, efficacy, equality before the law and depersonalisation. Today we often include transparency, and participation. Weber had a particular assemblage in mind when delineating his ideal type of rational-legal rule. We might consider this a historically specific snapshot of the values supposedly underpinning bureaucratic procedures that shaped his ideal type, albeit one that corresponds surprisingly often with bureaucrats' descriptions of what and how they want to be (Affolter 2016; Eckert 2005; Lentz 2014), and what so often they know they are not. Whatever its heuristic worth, the ideal type is frequently a standard against which civil servants measure their duties, goals and failures: it shapes expectations, claims and demands, evaluations, disappointments and resistances.

Such assemblages are specific to a time and place. The relevance of transparency today makes this clear. Entering bureaucratic ethos only in the late

20th century, transparency is not relevant everywhere to the same degree, not in each bureaucratic sector (where, e.g. street-level bureaucracies vs. pure desk jobs, or output-oriented bureaucracies vs. accounting, etc. might differ), nor in each institutional system. At least formally at specific times and places, different agencies probably share some of the values of their procedures, i.e. elements of their ethos (but see Olivier de Sardan (2009) on the role of practical norms).

Ethics, on the other hand, concerns orientation towards "the good". In the case of bureaucratic ethics, values and norms associated with the substantive goals of a bureaucratic apparatus are geared towards ideas of a good society, a good life, welfare or justice.4 State bureaucracies, as one specific type of bureaucratic assemblage, do not merely execute bureaucratic procedures. Rather, they embrace a purpose, a *raison d'etre*, whether we actually observe a common conception of this purpose, or see several conf licting ones.  Goals and projects attributed to "the state" at a historical moment by bureaucrats, citizens and subjects alike relate to the notion of a public, a commonweal. "Their legitimacy rests on claims made manifest in a constitutional agreement and they exist for the public good," as Laura Bear and Nayanika Mathur claim (2015: 18).5 State standards and norms are pragmatic conventions that also express notions of justice. They articulate theories of a just social order: what categories of people are eligible to benefit from what service, how much is allotted to whom, what is subsidised, what is taxed, and what can be bequeathed, etc. all relate to specific notions of justice. Bureaucratic ethics concerns each and every administrative act that declares a specific vision of social order to be "just" or "proper". In fact, the bureaucratic term for justice might be adequacy: proper, justifiable, appropriate. If conditions are appropriate to standardised needs, average situations, the proper relations of a commonweal are established.

The extent of the commonweal with which a particular bureaucratic apparatus is concerned depends on the jurisdiction of the agency in question and its degree of integration into the larger bureaucratic structure. Precisely

4 This distinction between ethos and ethics corresponds to Weber's definition of both; see Swedberg 2005.

5 Bear and Mathur use the term the "public good". I prefer to use the term "commonweal" to distinguish it clearly from a much narrower notion of "public goods",.

because bureaucracies are bound to their jurisdiction, inclusion and exclusion are intrinsic to any bureaucratic work (see also Handelman 1981). Jurisdiction introduces the "nationalistic logic" that Michael Herzfeld pointed to, which serves to "distinguish between those included and excluded from the national order and to represent these distinctions as given by nature – rather than cultural or historical contingencies" (Herzfeld 1992: 174). The reformulation of jurisdiction as a *moral community* is what matters here. This reformulation, i.e. the moralization of jurisdiction, is currently prevalent in national notions of commonweal and arises from the intrinsically ethical character of any conception of a "good order". Whether someone or something deserves moral regard is shaped by norms implicit in the notion of a "good order" that a specific vision of commonweal asserts. The substantive content of visions of good order, of "the common good", introduces hierarchisation that differentiates those needing protection and support from those considered detrimental or even dangerous to maintaining the commonweal. Common good (*Gemeinwohl*) is not identical to commonwealth (*Gemeinwesen*).

How the public good is imagined, how the commonweal is conceptualised, and how those defined as outside the commonweal's moral community are treated is a matter for enquiry. The general purpose of serving the common good is made manifest in the practices, expectations, claims and disappointments related to such service. Bureaucratic ethics – like any other ethics – concerns questions of how to act in the service of these values. Thus, ethics is intrinsic to bureaucratic institutional assemblages, not merely external to them.

Often, the ethics of bureaucratic practice have been perceived to arise from extra-bureaucratic social realms, and conf lict with the bureaucratic ethos as caused precisely by an incompatibility between the ethical and social realm and the rational and legal realm of bureaucracy. In particular, anthropology has long interpreted conf licts between "formal rules" and informal practices as arising from the demands of conf licting normative orders. Such normative orientations have been considered to arise "outside" the office, emanating from social relations in which office holders are embedded. Obligations to acknowledge these relations give rise to deviations from official procedure. Inevitably, this leads to analyses that establish a dichotomy between society and the state, or between an intra-bureaucratic ethos of indifference and an extra-bureaucratic realm of moral normativity.

At the same time, much critique of bureaucracy has focused precisely on assumptions of its anethical nature. Many analyses encounter "Frankensteins: the rules guiding them can overwhelm the goals they are supposed to serve and the missions 'creep' continually outward. Bureaucrats […] are at once inanimate – lazy automatons, blindly serving larger powers – and animate – nefarious, self-interested obstructionists" (Hoag 2011: 82). In his book on the Indian welfare bureaucracy (2012), Akhil Gupta, while acknowledging the ethical orientation of governmental programmes and individual civil servants, has advanced the thesis that the failures of the Indian state are found not in the divergence of state bureaucratic practices from proposed formal procedures, but within formal procedures that engender indifference towards the arbitrary outcomes they produce.6 This echoes other critiques that consider bureaucratic practice to produce indifference (Herzfeld 1992), or point to the violence inherent in bureaucratic classification (Graeber 2015) or to the loss of moral responsibility (Bauman 1989). These analyses locate bureaucratic violence in excessive orientation towards bureaucratic procedures (rather than in the corruption of those procedures) and consider bureaucratic state apparatus a form of domination that rules according to instrumental-rational criteria dissociated from moral evaluation. For Bauman, the absence of moral evaluation in bureaucracies results from functional divisions of labour and the substitution of technical for moral responsibility. Functional division of tasks within and between bureaucratic authorities undermines the assumption of moral responsibility for the outcome of a collective activity, a phenomenon that Matthew Hull superbly demonstrated by tracing the erasure of individual authorship on administrative decisions (Hull 2003).7 A system of fragmented responsibility allows the construction of holocaustic apparatus (Bauman 1989: 98), making possible the banalisation of evil.

6 Unlike others who point to the anethical nature of the administrative apparatus, Gupta claims that indif ference to the arbitrariness of outcomes prevails despite the existence of ethical concerns on the part of individual civil servants and the overall goals of the administration.

7 Hull's examination is based on material from Pakistan's civil service. The erasure observed here, and the dissolution of attributable responsibility, has particular contextual reasons, as erasures of authorship are deeply entangled with civil servants' fear for their professional careers, a fear largely shaped by the politics of transfer in South Asia. This might take entirely dif ferent forms in other contexts, or be less pronounced in other administrations.

Could and should one read Hannah Arendt's thesis of the banality of evil as the possibility of a murderous ethic's normalisation and routinisation, rather than the anethical nature of bureaucracy? This reading might not accord with Arendt's notion of morality, since her normative concept of morals stressed the residual freedom of choice against obedience to the law. If, however, we ask whether the banality of evil did not necessitate first a *banalization* of evil,8 we come to an empirical notion of ethics. Using an empirical notion of ethics enables us to differentiate between various co-existing ethics; it does not negate the possibility of moral resistance to public ethics, since public or bureaucratic ethics do not determine value orientations by obliterating all other moral or ethical norms. Rather, the ethics inherent in the substantive goals and purposes an "office" is tasked with impact the practices of office holders by shaping their "ideologically affected desires" (Gill 2009: 215).

Our approach to the ethics of office is akin to that of Didier Fassin in his recent discussion of "the heart of the state". He holds, and we agree, that state agents "work in reference to a certain professional ethos, to a training they have received, to an idea they have of their actions, and to a routine they develop. The principles of justice or of order, the values of the common good and public service, the attention to social or psychological realities […] all products of their professional habitus, inf luence the way they will respond to state injunctions and behave towards their publics," (Fassin 2015b: 6-7). Fassin complicates analyses of the bureaucrat as "automaton" (Herzfeld 1992: 1) that often prevails in critiques of bureaucracies. Whereas he stresses the interrelation of professional ethics and affects (Fassin 2015a; Fassin 2015b: 10), we concentrate on the interrelation of the ethics of office and bureaucratic practice.

Employing this focus on the ethics of office also avoids the individualist bent implicit in many analyses of bureaucratic discretion. Anthropologies of bureaucrats often produce implicit assumptions about discretionary "freedom" simply by *not* focussing on precisely how discretion is *practised,* or rather, how it is shaped and structured in itself. Thus, ethnographic bottom-up perspectives on administration, policy or the state suffer from a lack of attention to the impact of formal rules and public ideologies – often due to the attempt to overcome reductionist top-down analyses that do not attend

8 Roland Eckert in a conversation in October 2018.

to variation in bureaucratic practice (see also Fassin 2015b: 5). In order to understand the particular sociality of bureaucratic discretion, and to understand "interpretation", "subsumation" and "application", I suggest that discretionary practices are informed by the ethos and the ethics that pertain to a specific bureaucracy at a given time and place, and that are trained and cultivated formally and informally in bureaucratic sociabilities, as Laura Affolter shows in her contribution to this volume (also see Affolter (2016) where she develops the term "institutional habitus" for this phenomenon). The "bureaucratic ethic" guides the application and interpretation of rules. Only with such an ethical basis, as Thomas Bierschenk and Jean Pierre Olivier de Sardan have also stressed (2014: 13), can discretion be exercised. "Worldview directs thought-work such as case interpretations. Therefore, organizational worldview fosters the subtle coherence of decisions over a wide variety of cases," Heyman says (1995: 265). Individual segments of bureaucracies relate interpreting their tasks to their specific role in achieving overall goals. Tasks precisely shape how rules are interpreted and implemented to serve these ends. They suggest which division of labour best aligns with an overall goal. They outline what responsibilities follow from ascribed competences, and which attribution of responsibility is "rational", questions that arise in relation to such quotidian matters as budget allocation, agency competition or assigning "cases" to specific bureaucratic agencies or "desks". What it is to do a job well, to be rule oriented (i.e. to interpret the rule), to be consistent, effective or efficient, these ambitions can only be achieved in the light of the broader ethical goals. Such matters of definition and interpretation are intrinsic to bureaucratic work; they establish how the commonweal is best served by a specific bureaucratic agency.

I want to hold on to the distinction described above that Weber made between ethos and ethics rather than merging the two terms, as might be possible through the notion of moral economy as used by Didier Fassin (2009). I find it useful to retain distinct notions of ethos and ethics as possible aspects of a moral economy of state bureaucracies at a specific time in a specific place, because they are not the same and they can be in tension with each other. Images of the state, as Klaus Schlichte and Joel Migdal noted (2005: 14), encompass both the substantive promise inherent in the purpose attributed to that state, which I call "bureaucratic ethics", and the procedures deemed "state-like" and proper that the state bureaucracy can use to fulfil that promise, which I call "bureaucratic ethos". Both are situated in the

same historical moment and hold for the same social realm. They are inextricably linked, but can conf lict, as I will explain below.

#### **The moral community**

Visions of what public goods the state is responsible for, and what procedures are appropriate for it to use to accomplish them, are subject to change. A state may be defined by goals of autonomy, modernization, equality or equity, competitive military or economic power or welfare; and its bureaucratic procedures judged by their efficacy, transparency, participatory nature or cost efficiency. Fundamentally, changes in ethos and ethics are expressed in how the moral community a bureaucracy is concerned with is differentiated and delineated, and how its relations to, and differential obligations towards its members and non-members are defined.

Contemporary visions of the commonweal of European nation states are entangled in contradictory imperatives. Deep tensions exist among the prerogative of the nation state to distinguish between insiders and outsiders, humanitarian appeals to broaden definitions of the greater good, and the global interdependencies that are a requisite for any common good. These simultaneous imperatives produce institutional contradictions, the resolution of which demands differential prioritisation.

In his contribution to this volume, David Loher shows how, in Swiss asylum procedures, the notion of voluntariness serves to align the imperative of the exclusionary nation state with humanitarian delegitimisation of state violence: the best and most ethical (but also the cheapest) way to exclude is when the excluded leave voluntarily. This ethical stance impacts the way officials who organise voluntary return migration understand their task, and how they go about achieving it. The notion of "voluntariness" discussed by Loher is central to current conceptualisations not only of human agency, but also of fairness, efficiency and efficacy.

Contradictions between imperatives of the nation state, the national economy and humanitarian ideals often come to the fore in competitions between bureaucratic agencies, particularly between those charged with bio-political duties and those with disciplinary and security tasks (see also Schiffauer in this volume; Fassin 2015b: 6).

Simon Affolter's chapter describes a smooth negotiation between the contradictory imperatives of upholding immigration law and labour law standards, on the one hand, and ensuring the ongoing provision of cheap migrant labour on which the Swiss commonweal depends, on the other. Cheaper labour is less regulated labour, particularly in an agricultural sector that has symbolic significance for Swiss national identity. Institutional inconsistencies arising between these principles are functional, Affolter shows us, in relation to the prioritisation of efficiency in Swiss agriculture, and as a means to preserve a symbol of national autarky. Enforcement of both labour law and immigration law is subordinate to the economic viability of Swiss agriculture (see Heyman 1995 for a discussion of the US situation). Thus, labour law and its enforcement has little relevance for serving the national conceptualisation of the commonweal. Individual officials situationally enact this hierarchisation of laws (and of administrative bureaus) by relying on the overall goal of serving a specific delineation of the Swiss common good.

Mediations between the diverse priorities of different state agencies are contingent upon many factors. The dominance of one discourse or one agency, which directs how best to secure the commonweal, might give way to other strategies and other agencies once economic or political expediencies change. Yet, prioritisations among contradictory imperatives of the commonweal remain embedded in historical legacies and inf luence contemporary functions.9 The memory of "Weimar" as a frail state legitimises contemporary ethics of defensive democracy ("*wehrhaf te Demokratie*"); this forms the horizon and legitimatory repertoire for many a bureaucratic norm in Germany, as Werner Schiffauer shows in his analysis of the symmetri-

9 Ethos and ethics change in shorter intervals in relation to mediatized events – but relations between media representations and public ethics appear to be somewhat dialogical, as media representations not only respond to but also shape public ethics. In what was called the "refugee crisis" we could observe daily shif ts between a humanitarian perspective on the refugees from Syria struggling at eastern European borders, and a security perspective, ever dif ferentiating the criteria for legitimate mobility, targeting both Syrian and less of ficially legitimate refugees (see also De Genova 2016). With such short term shif ts, it is not always possible to tell whether a shif t is relevant to ethical values, or whether it af fects what, or how something can be legitimately addressed, i.e. a shif t in rhetoric. Yet, shif ts in rhetoric, taken "at their word", can trigger shif ts in practice. Rhetoric sets standards and defines the norm or the normal, the way to view an issue.

cal construction of different "extremisms" in German security agencies. Chowra Makaremi employs the notion of memory to show how political considerations connected to both post-colonial memory and contemporary power relations shape the French asylum system. She highlights the colonially informed political stakes that underpin the selection of those who possess rights to national protection and others, as well as the ramifications of diplomatic affinities and tensions in the arena of asylum (e.g. France's position of withdrawal from regional issues in West Africa). Makaremi shows how the national host community is redefined, first literally through a process of filtering and excluding those who do not belong to it, and then figuratively, through affirmation of common rationalities and moral values, such as democratic assistance or protecting the welfare state against abuses and false refugees.

#### **Knowing like a state**

In many ways, ethos and ethics are intrinsic to administrative categorisation procedures. Bureaucracies process cases according to given (legal) categories of difference, so that differential access to rights defines multifaceted cases for singular purposes, and boundaries are set within the gradual, continuous character of difference (see Handelman 2004: 23). More importantly, bureaucracies create categorical differences according to their specific tasks and the perceived needs of the commonweal.

Thus, administrative categories are deeply ingrained in the way the state knows. Classificatory practices are based on knowledge, and at the same time shape what can be known. Knowledge is purposeful. Its selection is shaped by the problems that an agency is supposed to address. In his contribution, Werner Schiffauer examines the creation of task-specific categories and the kinds of functional blindness they produce. Schiffauer points out how a degree of "decisionism" inheres in the creation of any category.10 At

10 Decisionism is the term employed by Carl Schmitt, who proposes that norms gain validity only through decisions (by the proper authority). These decisions are, at their core, unjustifiable as they can never be entirely explained by logical or ethical criteria (Schmitt 1922). For Schmitt, the validity of law was not inherent in its principles but made fact by the proper authority. Max Weber used the term slightly dif ferently to seek a solution to the problems of rational legal rule. To him, legality alone could not set goals or make value

some point on the boundary between one category and the next, the differences between two cases in the same category might be greater than between two cases f lanking both sides of the arbitrary divide. This ultimate arbitrariness defines administrative exercises in classification precisely because the boundary of a category cannot be logically or ethically explained in its entirety, but arbitrarily delimits gradual difference at a specific point. This decisionism is complemented by the "discretion" exercised in the application of categories of difference (see, e.g. Lipsky 1983), as to subsume a specific "case" under a categorical rubric necessitates interpretation by those who perform this application to such situations.

It might appear contradictory to claim that the categorical differentiations of (migration) bureaucracies are decisionist in nature, and hence not justifiable by logical or ethical norms, and yet that this decisionism is shaped by a bureaucratic ethic. In fact, this is precisely the point. Bureaucratic ethics "rationalise" the decisionism of bureaucratic categories because arbitrariness is anathema to rational legal rule. This is evident in Schiffauer's analysis of the categories of danger developed and continually differentiated by the German Office for the Protection of the Constitution as it struggles to keep up with the intellectual dynamics of Islamic communities. What is also evident is the futility of these efforts. Bureaucrats are usually aware of the poor fit of these categories with actual "cases" they work on. In response to tensions between category and case phenomena, new categories are created with even finer differentiations. But they remain anachronistic snapshots of an intrinsically dynamic field. Nonetheless, even failed categories are often highly productive of social order. As Schiffauer shows, they gain a truthvalue beyond their specific purposes.

#### **Everyday states of exception, or: Does it really matter what they think they do?**

While the norms of ethos and ethics are both intrinsic aspects of bureaucratic practice, ethos and ethics are not the same. They can conf lict, especially when shifts in fashion affect proper procedure (such as the introduc-

decisions; only a leader's decision(-ism) could save modern society from the iron cage of rationalisation (Weber 1919).

tion of public management techniques; see Bear and Mathur 2015) or when changes occur in public ethics.

This tension comes to the fore in the reasoning of the return migration bureaucrats to whom David Loher spoke. Their defence of rule-orientation rests on the principle of equal treatment, without implying approval of the substantive ethics behind the rules they enforce. They prioritise "rule-following – and therefore procedural or formal justice – over substantive justice" Loher continues: "Identification of the principle of rule-orientation with fairness indicates that there is more at stake than concern about pure procedure" (Loher, this volume). He holds that, in this case, ethos is ethics.

However, when the norms of ethos are perceived as hindering service to the commonweal, ethics sometimes trumps ethos. Just as substantive goals and values can be overridden by procedural concerns – as in "automaton" accounts of bureaucracy – so can procedural ethoses be overridden by adherence to substantive ethics. As Fassin also observes: "whether through over zealousness or conviction the agents often extend the realm of policies well beyond what is requested" (2015b: 5). Bureaucrats might believe in their office. They might believe in ethos and ethics alike, or they might prioritise ethics, i.e. specific orientations towards the commonweal, over procedural concerns. Bureaucratic ethics import the Dirty Harry problem (Klockars 1980) into governmental apparatus.11 To put it another way, ethics in tension with ethos calls forth a myriad of situational states of exception.

Everyday states of exception, when law is suspended in order to safeguard the legal order (Schmitt 1922) are particularly evident in Nicholas De

11 It is important to point out the possibility of prioritisation to complement the image of "the automaton", and bring to light bureaucrats' commitment to their of fices, the "volitional allegiance" that Gill spoke about (2009: 215). Furthermore, dedication in pursuit of the larger goals an of fice is tasked with to the detriment of procedural rules can be no less problematic than mere rule orientation. This is why Du Gay (2000) praises the democratic potentials of bureaucratic rule orientation. Detecting everyday states of exception in the Dirty Harries of bureaucratic practice, tension between ethos and ethics in bureaucracies might come down to an image of the heroic civil servant acting solely in an attempt to serve the goals he or she is tasked with. This critical point was made by Klaus Schlichte in discussion of a draf t version of this article. I consider ethical orientations towards an of fice to be far more quotidian than any notion of heroism would imply. Such an ethical orientation is not "exceptional", but rather, a matter of work ethics, and of labour explored as practice, which encompasses habits, routines, skills, value orientations, decision making, etc.

Genova's examination of "detainability". De Genova shows how "the lowest level enforcers of the law must constantly exercise their own discretion and routinely decide on a case-by-case basis on the 'state of exception' between the abstraction of the law and the fact of violence that enforces it, in the putative interest of 'order' or 'security'" (this volume). Everyday states of exception are equally present in Affolter's Swiss agricultural sector, where labour officers establish a situational hierarchy of legal norms (only some of which are enforced) related to their orientation towards serving the commonweal of Switzerland. The systematic and systemically related violation of labour and immigration law is a functional prerequisite of serving the commonweal as currently defined.

Evident in both examples is how everyday states of exception are governed by many rules. This echoes what Nasser Hussain has called "hyper-legality" (2007). Hussain responded to the easy Agambian assumption of "law-less" or extra-legal spaces of exception, and showed how the rule of law actually made possible and regulated such exceptions. This insight is important for us insofar as it demands a process-based approach to the exploration of ethos and ethics, one that can bring to light how, in the continuously alternating prioritisation of one over the other, institutional change is produced. In quotidian states of exception, such as the cases discussed above, changes in the image of the state, in its ethics and its proper procedures, also encompass a complicated relation between legality and legitimacy. Changes in legitimacy occur at different rhythms than changes in legality. More importantly, legal procedures considered inappropriate for reaching certain state goals can lose legitimacy, whereas illegal procedures and practices can become legitimate when perceived as effective in fulfilling state promises. Small discrepancies might lead to incremental shifts in the interpretation of legal rules by state officers; stark discrepancies might lead to an open departure from legal rule and legitimate practice (as perceived by office holders).

Prioritisation of substantive goals over procedural norms is often followed by procedural adjustments. Legal reform realigns the legality and legitimacy of administrative practice. The discretionary margin is widened and executive powers are enhanced (see e.g. Eckert 2012). Central to realignments of legitimacy and legality are notions of threat and crisis (see also Fassin 2015b: 2) that justify drawing lines between those considered to belong, and enjoy specific protections, and those outside the moral community that a bureaucratic ethic is concerned with. This is why paying attention to the

dynamic tension between bureaucratic ethos and ethics is important, and why acknowledging their distinction has heuristic value.

#### **Conclusion**

While acknowledging the myriad constraints, diverse goals and contradictory logics bureaucrats are entangled in, as well as the possible inf luence of personal and public morals (Fassin 2015), the point here is to refocus attention on the ethics of office. Dynamics born of relations between ethos and ethics, and their impact on bureaucratic practice, have not been adequately addressed in recent literature on the anthropology of bureaucracy or policy. Too focussed on either rule-orientation or discretionary freedom, many approaches have overlooked the way interpretations of the commonweal shape bureaucratic practice. We stress that such interpretations cannot be considered extra-bureaucratic ethical concerns, but are intrinsic to the profession (see also Bierschenk and Olivier de Sardan 2014: 12-13; Lentz 2014). Certainly, situations exist where orientation towards the public good is not of great importance in the conduct of public servants; in such situations many factors possibly contribute to a minimal identification with the job (see, e.g. Bierschenk 2014: 222). In many other situations, however, viewing oneself as a public servant who serves a public good is fundamental to the way people conduct their work. This holds true, I would claim, in such diverse situations as in the Indian police service (Eckert 2005), among Ghanaian public servants (Lentz 2015) or in the situations explored in the contributions to this volume. However, where such orientations hold sway and how they develop or diminish is an empirical question. Differences might arise not only in accord with the states in question and the historical moments of analysis, but also in different areas of state administration. Ethos and ethics are highly contextual, and so is their relevance for bureaucratic practice.

At the same time, attention to the ethos and ethics of office is as essential to understanding bureaucratic practice as attention to extra-bureaucratic expediencies. The notion of the office, of professionalism in civil service, even of ubiquitous laments about failure, corruption or inadequacy confirm the relevance of the ethics of office to understanding the work of bureaucracies. They define the ways a commonweal is best served and delineate its moral community. Furthermore, differentiating between the ethos and

ethics of bureaucracies and investigating the dynamics that arise from their relations can provide insights into institutional and legal change. Bureaucrats' quotidian struggles to align ethos and ethics, or to justify their divergence, bring about incremental changes that sometimes need normative acknowledgement to effect legal reform.

#### **Bibliography**

### **Keeping Numbers Low in the Name of Fairness** Ethos and Ethics in a Swiss Asylum Administration

*Laura Affolter*

### **Introduction**

"I am interested in foreigners, other cultures. The basic idea is to help these people, even if we do – of course – reject many of them", Gabriel, a caseworker in the Swiss Secretariat for Migration (SEM), once said to me (Gabriel, caseworker, interview transcript).1 The SEM is where first-instance asylum decisions are made in Switzerland. Officials working there – officials like Gabriel – make decisions about whether asylum seekers fulfil the requirements for refugee status, and whether they believe the applicants' statements are credible.2 Applicants must fulfil both preconditions before receiving asylum. Although Gabriel works in the SEM "to help people", for him it is okay that most applicants get rejected. This has to do with his understanding of *fairness*, a core issue in professional decision-making. Thus, later in the conversation quoted above, he went on to say that it was the decision-makers' duty to meticulously examine the credibility of each case, because otherwise "everybody could just receive asylum and that would be unfair to those who

1 All the names in this chapter are pseudonyms.

2 I use the terms "asylum seekers", "applicants" and "claimants" because they are the emic terms SEM of ficials employ and it is their perspectives that I critically engage with in this paper. However, I am aware that labels carry meanings and, by using them, there is the danger of reproducing them. Labels do not "exist in a vacuum" but are "the tangible representation of policies and programs", Zetter argues (2007: 180). Hence, only through entering the asylum system do "people on the move" become "asylum seekers" (ibid.: 175). In fact, the term "asylum seeker" fits with the shif t that Fassin (2016) describes from asylum as a right to asylum as a favour (see also Jubany 2011: 85).

really deserve asylum, who really need protection" (ibid.).3 Gabriel's statement exemplifies a common view within the SEM that, in order for decision-making to be fair, granting asylum and temporary protection must be reserved exclusively for those "truly deserving of it". Fairness is, therefore, based on exclusion.

The exclusionary workings (in particular, the outcomes) of asylum decision-making have been widely criticised (see, for instance, Harvey 1997; Jubany 2017; Marf leet 2006; Scheffer 2001; Souter 2011; Zimmermann 2011). By tracing historical changes in asylum and refugee policy, several studies have shown how asylum policies and asylum law started to become more restrictive in the early 1980s as applicants increasingly fell outside the East/ West, communist/non-communist divide, and after the 1970s recession increased unemployment, which led to restrictions on labour immigration (see, for instance, Däpp 1984; Fassin 2013: 8ff; Fassin & Kobelinsky 2012: 448ff; Piguet 2006). Furthermore, they describe how, in the 1980s, a discourse about "false" or "bogus" refugees trying to abuse the system emerged as the number of asylum applications increased (Däpp 1984: 216ff; see also Fassin 2007). In Switzerland, this "fight against abuse" has been the driving force behind and the means of legitimating many of the restrictions made in Swiss asylum law in the past thirty-seven years (see Miaz 2017: 83ff). However, these historical accounts do not tell us much about how such policies or policy changes are translated into practice and shaped and mediated in this process (see, for instance, Lipsky 2010; Shore and Wright 1997, 2011; Wedel et al. 2005). Furthermore, while they show how the eligibility criteria for refugee status or for receiving temporary protection have gradually become more restrictive, they offer little explanation as to why most asylum applications are rejected on the basis of so-called "non-credibility".4

3 I use the term "decision-makers" for the SEM of ficials who conduct asylum interviews and write decisions. Final decisions bear their signatures and also that of their direct superiors. As I will show in this contribution, decision-makers' decisions can by changed by their superiors. Hence, the superiors also become decision-makers in a way. For a critical reflection on the term "decision-maker", see Lavanchy and Garros (forthcoming). Here, I use the terms "decision-maker", "caseworker" and "(SEM) of ficial" synonymously, separating them from the heads of the asylum units, whom I call "superiors".

4 Unfortunately, negative asylum decisions are registered with the same code regardless of whether they are made on the basis of "non-credibility" (article 7 of the Swiss Asylum Act, AsylA), of non-eligibility for refugee status (article 3 AsylA) or a combination of both. It is

Kelly, who in *Sympathy and Suspicion: Torture, Asylum, and Humanity* "explore[s] the epistemological conditions under which it is possible to doubt or deny the claim of others" (2012: 755), offers one explanation. He argues that "the very process of imagined identification found in compassion can lie behind suspicion" (ibid.: 753). Several other authors have argued that elements of "non-credibility" – and through them "lies" and individuals labelled as "liars" – are actively created by means of decision-making processes, particularly through the questioning techniques used in asylum interviews (see Crawley 1999: 52ff; Sbriccoli and Jacoviello 2011: 184ff; Scheffer 2001, 2003; Trueman 2009: 296ff). This argument challenges the common explanation put forward by asylum administrations, politicians and much of the mainstream media that the majority of claims are rejected because the majority of asylum seekers lie. Building on both these approaches, I examine what makes it *normal* and *desirable* for "otherwise compassionate and rational people" (Kelly 2012: 755) to doubt and deny the claims of others. In other words, how does it become routine for decision-makers to adopt questioning strategies that actively generate indicators of "non-credibility"?

I approach this question by empirically exploring what SEM decision-makers think they should be doing. Following Eckert's argument in the introduction of this volume, I claim that what "bureaucrats" do is shaped by what they think they should do.5 What they think they should do, in turn, is shaped by both the ethics and ethos of the office. Eckert (this volume) defines bureaucratic ethics as the "values and norms associated with the substantive goals of a bureaucratic apparatus geared towards ideas of a good society,

5 The terms "bureaucracy" and "bureaucrats" carry negative connotations. They are of ten associated with "red tape" and "of ficialism" and used as criticism (Eckert, this volume; Poertner 2017: 12). Here, I mostly use the terms "administration" and "of fice". However, when referring to literature that uses the terms "bureaucracy" and "bureaucrats", I employ the same terminology.

therefore not possible to quantitatively analyse what reasons were cited for negative decisions. However, the SEM online manual on asylum and return (*Asyl und Rückkehr*) states that the majority of rejections are attributable to the lack of credibility of asylum seekers' claims (https://www.sem.admin.ch/dam/data/sem/asyl/verfahren/hb/c/hb-c5-d.pdf [accessed 19 September 2018]. In addition, all of my interaction partners (both SEM decision-makers and legal advisors) were of the impression that most negative decisions are based on non-credibility. In Af folter (2018) I discuss dif ferent reasons why it is an institutional preference to argue negative decisions on the basis of "non-credibility", rather than on "non-eligibility for refugee status".

good life, welfare, or justice". Thus, the term "bureaucratic ethics" stands for the specific purposes of a bureaucracy; the goals its employees are tasked with, both explicitly and implicitly. Bureaucratic ethos, on the other hand, describes the assemblage of procedural behaviours deemed proper for fulfilling these purposes (ibid.). Taking up Eckert's argument that bureaucracies are not anethical, as Bauman (2000), Graeber (2015) and Herzfeld (1992) have claimed, but rather that ethics are "intrinsic to bureaucratic work", I show how the ethics of office shape its procedural values: the ethos of the office. That is, decision-makers' understanding of *what* their role is shapes their understanding of *how* to carry it out professionally. Since what "bureaucrats" think they should do informs their everyday practices, and their everyday practices shape and mediate the policies and laws they are charged with implementing (see, for instance, Silbey 2005: 324; Wedel et al. 2005: 34), we need to explore the ethics and ethos of the office in order to understand how asylum law and policies work. Furthermore, as Fassin (2015:4) has stated, paying attention to state officials – their "actions, routines, values and feelings" – is crucial to understanding how the state works.

This chapter consists of four main parts. Part one describes a field episode in which two SEM officials – a superior and his employee – discuss the rightfulness of a decision. From that point of departure I extract, in part two, what the officials as decision-makers consider their duties to be. Their conceptualisations form the basis for deriving the ethics of the office. In part three I discuss a variety of norms associated with the notion of being professional in the SEM. Particularly through the norm of fairness, we see how procedural ethos is shaped by bureaucratic ethics. Part four shows how the ethics and ethos of the office make one particular decision-making practice, which I call "digging deep", the normal and desirable thing for decision-makers to do. "Digging deep", in turn, leads to reaffirmation of the office's norms and values.

This paper is based on ethnographic material from fieldwork for my PhD, which was conducted in the SEM during various stays between 2014 and 2015. I shadowed decision-makers from various organisational units in their work, observing them as they wrote decisions, prepared and conducted asylum interviews, chatted to colleagues in hallways and during coffee breaks, helped each other with difficult "cases", performed administrative tasks and

participated in team meetings.6 Furthermore, I took part in a three-week training session for new employees, conducted semi-structured interviews with decision-makers and superiors from nine different units in the SEM and analysed case files.

#### **Negotiating "the right" decision: a field anecdote**

A decision-maker, Rebecca, and her superior, Alfredo, are discussing a decision she has made. As Rebecca's superior, it is Alfredo's duty to check and countersign her decisions before they are sent to the applicants. In this case, he does not agree with Rebecca's decision to grant temporary protection to a family from Iraq. I quote this excerpt from my field notes in detail because it brings to light several aspects of what Alberto and Rebecca believe professional decision-making involves.

I am sitting in Alberto's office, watching him go through his employees' decisions and case files. The documents he appraises, decisions that need his signature before they can go out, were left by his employees on a table outside his office. The first decision he picks up is a negative one for a family from Iraq. Yet, the decision-maker, Rebecca, has granted the family temporary protection. For my benefit, Alberto comments on the decision as he reads through it. I learn that the family came to Switzerland a couple of years ago because the husband started work with a human rights organisation. When the husband's contract ended, the family stayed on and filed for asylum.

Alberto tells me that he agrees with the negative decision. He says the family's problems do not qualify them as refugees. Then, looking at the internal application for temporary protection Rebecca has submitted, he says: "Ok, the kids are still quite young and they've been here for quite a while, so they haven't lived in their country of origin for a long time. But someone else might still have decided differently". He feels that it is a very "generous" decision. "I mean", he goes on, "they're an upper-class family. It wouldn't be a problem for them to be socially reintegrated. […] They're a family, they're together, they can travel. They could go anywhere they want". Alberto is not quite sure what to do about the case, but he feels he cannot just let it pass

6 "Cases" is an emic term. Of course, what SEM decision-makers really deal with are not cases but people whose lives are greatly af fected by their practices and decisions.

like that. In the end, he decides to put it aside for two hours and then return to it. Quickly, he goes through the other decisions from the pile on his desk, reading through them, f licking through the case files and then countersigning them. Once he has finished with the other decisions, he turns back to the case of the Iraqi family even though the two hours have not yet passed.

Seemingly out of the blue, and slightly defensively, he says to me: "The question of nation states and whether one thinks nation states are good or not, has nothing to do with what we do here. It cannot be solved by what we do. I'm all for granting protection", he continues, "but we don't have to hand it to them on a plate" (*aber man muss es den Leuten nicht nachschiessen*). He explains to me that seeing so many cases over the past several years has made him stricter and less naïve. What is important to him is that whatever leaves his desk is fair. This, he explains, also means protecting the asylum system from abuse. Saying that, he grabs the Iraqi family's case file and tells me he will take the decision back to the caseworker, Rebecca, to discuss it with her. He says that she will either have to add more reasons for granting the family temporary protection or reconsider her decision. Alberto asks if I would like to join him. Slightly hesitant, but also curious, I follow him to Rebecca's office.

Alberto explains to Rebecca that he thinks this is a very opportunistic, upper class family that does not need temporary protection. Rebecca says that she can see his point, but she worries that because the children are still quite young, their decision denying the family temporary protection might be quashed if case is taken on appeal to the Federal Administrative Court (FAC). "Also", she argues, "the wife has health problems". But Alberto does not think her problems are severe enough. He also does not think that the young children's not having lived in their country of origin would pose a problem in the event of an appeal, and he feels that the risk is worth taking. Together they discuss other possible "obstacles to removal", but Rebecca had already ruled them all out after consulting the *Federführung*. 7

7 *Federführungen* are SEM of ficials who hold lead positions for particular "countr[ies] of origin". They are responsible for (co-)determining and monitoring the institution's decision-making practices in dealing with cases from these countries.

The discussion ends with the following dialogue:

Alberto: "I think the decision is too generous". Rebecca: "That's my problem. I'm too nice." Alberto: "I'm also nice." Rebecca: "Yes, of course".

Alberto and Rebecca agree that she will work on the case again and rethink her original decision. Before leaving to go back to his office Alberto asks Rebecca whether she "can live with" this new decision. Rebecca assures Alberto that she can, and that she will still be able to sleep at night. She promises that it will not take her long to change the decision.

As Alberto and I set off towards his office again, Rebecca holds me back, causing Alberto to come back too. She explains to me that this is just a normal part of the job. Sometimes, though not often, decisions are given back and one has to work on them again. She says that in this case she was probably inf luenced by the fact that she had interviewed the family herself and that they had come across as being very pleasant. Alberto says that he finds this understandable and that this is something that has really changed for him since he was put in charge of the subdivision and stopped doing asylum interviews himself. "I have become stricter, because I see so many cases", he explains, "but I can also see things more clearly now, from a certain distance, more objectively".

This ethnographic vignette could be analytically explored in several different directions. Here, I limit myself to mapping out both Alberto's and Rebecca's understandings of professional decision-making. Professional norms that directly contribute to the exclusionary understanding of fairness posited at the beginning of this paper will be analysed in more detail later.

Rebecca and Alberto mention several different aspects of what they believe professional decision-making involves. From Alberto we learn that professional decision-making is fair, objective and apolitical. The latter characteristic he expresses by saying that one's personal opinion of nation states (and of the restrictions on freedom of movement and residence associated with them) has nothing to do with their job. He also has clear ideas of what constitutes fair and objective decision-making. For Alberto, fair decision-making relates to strictly following the law, and objective decision-making to making decisions "from a distance" and not becoming too

personally involved in the case. From Rebecca, we learn that being a good and professional decision-maker means working fast, not becoming too personally involved in one's cases, and making decisions that one can personally endorse. We further infer from this anecdote that being naïve, "too generous" and "too nice" are considered to be features of unprofessional decision-making. Protection should be granted, but not too easily. In Alberto's words: "It shouldn't be handed to asylum seekers on a plate."

In order to understand why all of this has come to define professionalism for Rebecca and Alberto, I turn to the ethics of the office to demonstrate how it can be derived from what caseworkers understand their duties as decision-makers and state officials to be.

#### **Ethics of the office: decision-makers as protectors of the system**

In this field anecdote, Rebecca seems to be primarily occupied with what the FAC might think about her decision in case it is appealed. She worries that if she does not grant the family temporary protection, her decision might get quashed by the court for two reasons: first, because the children have never lived in what is referred to as their "country of origin" and it could be seen as unreasonable (or illegitimate) to send them "back", and second, because the mother has health problems.8 Hence, Rebecca regards one of her main duties to be the making of "correct decisions", i.e., decisions that will not be quashed by the FAC.9

Generally, this is also considered important by her superiors. However, in this particular case, Alberto finds issuing a removal order for the family a risk worth taking because he deems two other duties to be of greater importance than trying to avoid a quashed decision. These duties are, on the one hand, to make sure that only those "really deserving of protection" receive

8 Rebecca fears that by issuing a removal order she might be defying article 3 of the UN Convention on the Rights of the Child.

9 Not having one's decisions quashed is important for two reasons. First, SEM units "keep records of how many of their employees' decisions are quashed" (Af folter et al. 2019: 270). Too many quashings is regarded as bad decision-making. Second, quashings stand in the way of fast and ef ficient decision-making (another important professional norm), since decision-makers of ten have to work on those cases again.

protection and, on the other hand, to protect the system from being abused by "undeserving" applicants. For Alberto, the Iraqi family does not deserve protection because, as an "upper class family", they are not sufficiently vulnerable. They do not fit the image of victims in need of help.10 "They could go anywhere they want", he claims. This dual duty of protecting people – but only deserving people – and filtering out the undeserving in order to protect "the system" becomes apparent in the wording the SEM uses to describe the "[b]asic principles of asylum legislation" on its website:

It is the duty of asylum proceedings to identify those asylum seekers among the new arrivals who are entitled to protection under the terms [of the Geneva Convention]. Many asylum seekers cannot be classified as refugees or persons displaced by war. On the basis of their situation, they clearly belong to the group of migrants. They are in search of a better place to live in Switzerland. Knowing that they would hardly obtain an entry or work permit, they cross the border illegally. Many of them invent a dramatic story of persecution for the hearing by the authorities. With such tactics they hope to be granted refugee status. From the viewpoint of the person concerned, this behaviour is understandable, from the perspective of asylum legislation it constitutes abuse of asylum proceedings. The authorities must reject such applications without delay and execute removal systematically, making asylum proceedings unattractive for foreigners seeking employment.11

The quote illustrates a common assumption within the SEM that many (or even most) asylum seekers will lie. While deemed understandable ("anyone in that situation would do it", I was often told), it is, nevertheless, the decision-makers' duty to separate the "real" from the "false" refugees, the ones "telling the truth" from the ones "who are lying" (see also Fassin & Kobelinsky 2012: 446; Kobelinsky 2015: 67). This is regarded as important because the asylum system is only seen to work if those "not deserving of protection"

10 Several authors have shown that asylum (and immigration) politics, law and decision-making produce a very particular "'figure' (Fassin 2007: 512) of the deserving aid recipient, framing him or her as a victim in need of protection" (Cabot 2013: 453; see, for instance, Ticktin 2006; Zetter 2007).

11 https://perma.cc/ZG4B-NN6U [accessed 22 August 2019].

are denied asylum. This quote from Miaz's fieldwork shows this distinction nicely:

I think that saying "no" to someone who's not a refugee in the sense of the UNHCR and of the Refugee Convention contributes to the protection of the asylum institution. One has to say "no" to those who are not refugees in order to be able to say "yes" to those who are (Af folter et al. 2019: 273).

Similarly, Fassin and Kobelinsky have argued that "[t]he less frequently [asylum] is granted, the more precious refugee status becomes" (2012: 464). Thus, in order to maintain the value of asylum, many applications need to be rejected (ibid.: 465). Furthermore, the quote from the SEM website states that it is decision-makers' duty to make "asylum proceedings unattractive for foreigners seeking employment". I would argue that it is as much about making applying for asylum in Switzerland generally unattractive, or, at least not "as attractive" in comparison with other European countries. On the first day of training, new decision makers are told: "You are going to hear this often from now on: We are always afraid of the 'pull-effect'" (field notes). The assumption is that if Switzerland is "too generous in the granting of asylum (and humanitarian protection) compared to other countries", many more people will come (Poertner 2017: 17). Hence, although not officially stated, it follows that the office aims to keep both the number of new applications, and the number of successful applications low. That keeping numbers low is a decision-maker's duty was a message repeatedly conveyed in induction training. It may not have been explicitly taught, but it was consistently implied, as the following examples show.

In one of the training courses I attended, the instructor presented us with a graph comparing the number of new asylum applications in Europe and in Switzerland between 1998 and 2014. The graph showed that, in 2014, the percentage of asylum applicants in Switzerland was at its lowest point since 1998, dropping from 8.2% in 2012 to 3.8% in 2014. Drawing attention to this, the instructor commented: "Switzerland must have done something right, since the percentage of applications has gone down like this" (field notes). The message was quite clear. If "Switzerland" – partially through its frontline decision-makers – did its job well, this reduced the number of applications (especially in comparison with other European countries).

The second example comes from a course on how to deal with applications for family reunification. The instructor told the new decision-makers that the institutional practice for dealing with Eritrean applications was to request DNA proof that the applicants were indeed related to the people they intended to bring to Switzerland. The instructor said: "If they do not hand in DNA proof, the case is ready to be decided, namely negatively. I have seen that people have still been granted entry in such cases. Please don't do that. That's the worst signal we could be sending out" (field notes). With this statement, the instructor urged trainees to make sure their decision-making did not send out the wrong message to avoid creating a "pull-effect". The wrong message is that Switzerland is a country where family reunification is as easy as circumventing the regulations.

The two substantial goals the office is geared towards can be deduced from the examples above. As a Federal institution, the SEM – and, therefore, its staff – are requested to represent "national interests". On the one hand, this means fulfilling Switzerland's duties under international law (particularly the Geneva Convention and the UN Convention on the Rights of the Child) and maintaining its self-ascribed image as a humanitarian country. Upholding the noble value of asylum succeeds by excluding those "undeserving" of it. The scarcer asylum protection becomes, the more precious its value. On the other hand, it also means securing Switzerland's "borders" by restricting non-citizens' access to rights and goods, and by making sure that there are not too many "foreigners" residing in Switzerland. My analysis subsumes both sets of practices within the phrase "protecting the system", which, via two ostensibly opposed logics, comes to mean keeping numbers of asylum applicants low. This is at least partly achieved by keeping acceptance rates low. Decision-makers become "guardians of a restricted good": the right to reside in Switzerland (Heyman 2009: 381; see also Lipsky 2010: 4). My point here is not to say that all decision-makers consciously strive towards keeping numbers low. Many explicitly do not. However, I argue that the ethical goals of the office shape decision-makers' understanding of what it means to do their job well.

This is illustrated by the widespread language usage I encountered amongst decision-makers in the SEM. The verb most commonly used in granting asylum is "have to", whereas for rejecting asylum claims it is "can". Decision-makers typically say things like: "In that case I will *have to* grant asylum". Or: "If I had better arguments, I *could* reject this claim, but I *can't*

like this". This language usage is not something decision-makers seem to be aware of, but it is also common amongst caseworkers prone to criticising colleagues for being "too strict" or "cynics" who want to reject as many asylum claims as possible (see Affolter et al. 2019; Miaz 2017: 371ff). This particular language usage shows how the role of protector of the system is adopted and internalised by decision-makers. It becomes part of their institutional habitus, which, building on Bourdieu, I define as the schemes of thinking, acting, feeling and desiring that arise from an official's position in the SEM (Bourdieu 1976; see Terdiman 1987: 811).12 Protecting the system becomes the self-evident priority for decision-makers, as can be seen in the following example. While discussing a text in which I had written that the (implicit) goal of decision-making practices was to protect the system, a caseworker said to me: "Ok, yes, you could put it like this, but you could also phrase it as loyalty. That would be a bit more positive" (field notes). Although intended as critique, this remark actually reinforces my analytical point. For the SEM official, loyalty refers to being loyal towards a particular actor: the state. Whereas we could picture other loyalties, towards asylum seekers, for example, it is self-evident to the official that being loyal means putting what he sees as the state's interests first. This understanding of loyalty shapes the norms and values that define what it means to be professional in the SEM.

#### **The good decision-maker: professional ethos**

This section explores the professional norms and values that lie at the heart of everyday decision-making. In the SEM, the idea of fairness builds on many other professional values: apolitical-ness, objectivity, (emotional) detachment, professional suspicion (or non-naïvety) and strict rule-following. Subsequent sections deal with individual norms in more detail, showing how they both reinforce and conf lict with each other.

12 I develop the concept of the "institutional habitus" in more detail in my thesis (see Affolter 2017a: 10f f).

#### The fair decision-maker

Alberto tells me that for him it is very important that all the asylum decisions leaving his section are fair. That is why he does not want the Iraqi family to be granted temporary protection. His view fits with that of Gabriel, quoted at the beginning of this paper. For both of them, fairness is about reserving protection for those "truly deserving" of it.

Fairness is an important value in the SEM. Hence, a widespread understanding amongst caseworkers, which came up a lot in my material, is that their decision-making should always be fair. In most cases, fairness is equated with legal equality. The principle of legal equality means treating equal things equally and unequal things unequally. Therefore, for SEM officials, making fair decisions means using "the same standards for evaluating each claim" (Nora, superior, interview transcript). Ideally, they said, it should not matter who decides a particular case, the outcome should always be the same. For them, the way to achieve this is by strictly following the rules set by institutional practice (see also Lavanchy 2013: 69). Strict rule-following or "law application" is understood in this sense: if there are legal arguments for rejecting a case, it must be rejected. One should not grant asylum or temporary protection in such cases ("just") because making a positive decision might be quicker than meticulously arguing a negative decision, because one has become emotionally attached to the applicant, or because of personal political opinions, for example. At the same time, if there are clearly no justifications for rejecting a claim, reasons should not be made up out of thin air. That too is considered unfair. Connected to this norm of strict rule following is caseworkers' understanding that good decision-makers who properly fulfil their duties "dig deep" into every case to make sure that there are "truly no reasons" for rejection.

Consequently, decision-makers who take justice into their own hands by trying to help someone who is "undeserving" are portrayed as behaving in an unfair and unprofessional manner. Often such behaviour is equated with being "political". One caseworker, Lucy, once explained to me that trying to help an "undeserving" applicant – even someone who had suffered great injustice, for example, by being "so poor he could not feed his five kids" – would be unfair to others because:

This can rapidly lead to one marching to a dif ferent drummer. And in my opinion, then you are not being *fair* anymore, even though you want to be. Because your decisions don't conform with our asylum practice, you're not maintaining a *unité de doctrine*. […] It is not up to us to decide what is *just* or not. […]. Really, it's the politician who should ask himself that question" (Lucy, caseworker, interview transcript).

As we see, Lucy fears that by "over-generously" helping one person she might end up being "unfair" towards other (more "deserving") asylum seekers. While for her (like most of my other interaction partners) good and professional decision-making is very much linked with fairness, it has little or nothing to do with justice. The world is an unjust place, several of them offered in explanation, but it was not up to them to change that. Justice, they felt, was the responsibility of politics and politicians.13

Yet this does not mean that decision-makers never deviate from "strict rule-following". Even where there are reasons for rejection, decisions to grant asylum or temporary protection are sometimes still made. In "exceptional cases", I was told by several interaction partners, it was sometimes okay to turn a blind eye. The expression "to turn a blind eye", used in this context, once again highlights that good decision-making filters out the "undeserving" by finding legal reasons and arguments to exclude them from protection. Only in "exceptional cases" are these reasons deliberately overlooked. As the following quote shows, whether or not decision-makers turn a blind eye and become more lenient may also depend on the ethics of the office:

You know, if you have a single man without family and you think what he is telling you could possibly be predominantly credible, then you can more easily turn a blind eye. But with someone with a big family back home, you really have to see the *bigger picture* (Julie, caseworker, interview transcript).

Julie and many of her colleagues may therefore turn a blind eye if doing so does not deviate (too much) from their duty to protect the system. She says in the quote that, for a single man, she might stop "digging" for reasons to

13 This fits with what Das argues when she writes that "detachment is done by an explicit distancing from the political process, taking it as a given for the particular outcomes to be produced" (2015: 104).

reject the case sooner than for a big family who would all be allowed to stay. That is what she refers to as the "bigger picture". In the latter case, she has to be more careful to reserve the right to stay for those "truly deserving".

#### The objective and (emotionally) detached decision-maker

Since he has seen so many cases as a superior, he is now able to "see things more clearly, from a certain distance, more objectively", Alberto explains to Rebecca and me. For him distance and objectivity are what it takes to be professional and reach good decisions. He considers Rebecca's decision to be a bad one because it is "too generous". Rebecca thinks that the fact that she was "too nice" and made "too generous" a decision might have been inf luenced by the family's pleasant appearance when she interviewed them. In other words, she thinks she had liked them too much. In the SEM, emotional attachment and personal involvement are seen as the antithesis of objective decision-making. For a decision to be objective, it should be based solely on the "facts" of the case: on applicants' recorded statements and all the written documents applicants have supplied or decision-makers have acquired. "Distance" is considered crucial for achieving this. In the following, I examine what SEM officials understand by distance, and what measures are undertaken to create distance in order to enable objective decision-making.

SEM officials are not allowed to interview asylum seekers they know personally. If they are assigned the case of an applicant they know, they are obliged to give it back or pass it on to a co-worker. Moreover, in a training module dealing with the role of decision-makers in the interviews, trainees were told to maintain appropriate distance – not just towards asylum seekers, but also towards other professionals who participate in asylum interviews. They were informed that, whereas it was not forbidden to befriend these professionals outside work, the interview was not a place for informal or personal conversation.14

14 In practice, this is somewhat dif ferent. Several decision-makers maintain friendly ties with minute-takers and interpreters and this was evident during interviews when they initiated personal conversations or took breaks together. However, caseworkers are always careful to maintain a certain distance between themselves and the asylum seekers. Thus, conversations between decision-makers and asylum seekers are usually limited to the interview itself and, at times, to some formal small talk on the way to and from the of fice and the waiting room.

Separate waiting rooms ref lect the distance created between different types of actors. At the headquarters, one waiting room is for asylum seekers, and a separate room is shared by interpreters, social aid representatives and other visitors such as myself. At the reception and processing centres where I conducted my fieldwork, these auxiliary personnel sit in the same common room as the decision-makers themselves, while asylum seekers wait elsewhere. This separation ensures that all personal encounters and interactions between officials and asylum seekers are confined to interviews, where they are entirely "professional".

Another feature that promotes professional distance is the seating arrangement during the interviews, which usually take place in an official's personal office. The offices are equipped in a standard manner. The stenographer takes minutes at a desk with a computer. Other participants are placed around a larger rectangular table. These small rooms become very cramped during an interview with five participants (plus me) sitting in them. This forces people to sit close together. Although seating arrangements are generally not conscious decisions, but merely copied from other officials, most decision-makers sit at opposite ends of the table from the asylum seekers, and they therefore sit the farthest apart. When I asked an official why they always sat like that he replied: "Well, for me it's important that I can look the applicant in the eye, that I can look at him during our conversation, that I'm opposite him and sometimes I am also grateful for the distance" (Gabriel, caseworker, interview transcript).

Gabriel's quote points not only to the importance of distance, it also illustrates the value decision-makers ascribe to the "proximity" of face-to-face encounters. Face-to-face encounters are valued for a number of reasons. First, they are seen as an important source of professional-practical knowledge, a term, building on Reckwitz (2003: 289ff), that I use for the institutionalised intuitive knowledge or "gut feeling" that plays an important role in decision-making (see, for instance, Jubany 2011: 86ff; Lavanchy 2014: 92; Macklin 1998).15 Furthermore, decision-makers believe that by seeing the applicant they can do better justice to the individual case, because they get

15 I develop this concept of "professional-practical knowledge" in more detail elsewhere (see Af folter 2017a: 67f f, 2017b: 156f f). It describes what has also been called "tacit knowledge" or *Erfahrungswissen* (experience-based knowledge) by other authors that is acquired *on the job* (see Polanyi 1966; Sofsky & Paris 1995: 54).

a better feeling of what is really at stake. Moreover, many decision-makers told me that it was easier to stand by their decisions if they had personally interviewed the asylum seeker. They usually felt more confident that they were making "the right" decision when this was the case. Finally, one decision-maker told me that she found doing asylum interviews important, because "you sit opposite these people time and again and you realise that it is not just a number [you are dealing with], but a human being with all his hopes and dreams" (Lucy, caseworker, interview transcript). Yet, while close encounters in the interviews are acknowledged as important for the aforementioned reasons, decision-makers also see a danger that, like Rebecca, they will become emotionally attached. All my interaction partners told me that, for this reason, they usually put the case file aside for a couple of days after the interview, to (re-)gain some distance, so that their decision will not be inf luenced by sentiments the interview triggered. In this way, they become objective again.

As shown above, Lucy felt that it is important not to reduce people to numbers. I frequently encountered this norm in the SEM. Reducing people to numbers, not recognising them as persons (but instead as "piece[s] of paper") is regarded as doing one's job badly. Thus, a common outside critique (of reducing people to numbers, cases or files) is mirrored in this internal value (see, for instance, Eule 2014: 109; Fuglerud 2004: 36; Scheffer 2001).16 Good decision-makers are supposed to care for the people they deal with (see also Watkins-Hayes 2009: 70).

#### The sufficiently but not overly suspicious decision-maker

Alberto tells me that over the years he has become "stricter" and "less naïve". Both attributes he (implicitly) connects to fair decision-making: They allow him to be fair. As shown above, the common assumption in the SEM is that most asylum seekers are "bogus". They belong to the group considered "economic migrants" and are trying to manipulate the system in order to stay (see also Kelly 2012: 755; Souter 2011: 48). It is therefore the decision-makers' duty to combat "fraud", uncover the "underserving" and reject their claims

16 However, "distancing", as Eule (2014: 109) calls it, also occurs in the SEM in ways that are not recognised and reflected on by caseworkers, for instance, in terms of language usage.

as quickly as possible.17 This understanding of asylum decision-making leads to "a shift from trying to find the truth to searching for untruth, from a concern with proof to a concern with lies" (Kelly 2012: 765).

On the whole, the role decision-makers have in the interview and in decision-making processes is that of a "sceptic", as some have called it themselves. They see it as their duty to ask as many questions as necessary until they are convinced that the asylum seeker's story is true, or to produce sufficient arguments for writing a negative decision. Similar to what Alpes and Spire (2014: 269) describe for French consulates and Scheffer (2003:456) cites with regard to German asylum administrations, in the SEM "to be suspicious is a sign of professionalism" (Alpes and Spire 2014: 269). Conversely, to believe asylum seekers' statements without testing their credibility is a sign of naïvety. Decision-makers often worry when statements "seem credible" that the asylum seekers memorised them beforehand, or have knowledge about certain things for reasons other than personal persecution. For instance, once, after an asylum interview in which the applicant had talked for quite a long time about being in prison, the decision-maker said to me: "This is maybe a bit 'obsessive' (*zwanghaf t*), but the applicant could also have been a prison guard and that's why he's so familiar with the conditions in prison" (field notes).

While being sceptical is a sign of professionalism, being overly suspicious is regarded as a vice. As Das argues, (emotional) detachment does not equal cold disinterest (2015: 103ff; see also Candea et al. 2015: 24). In the SEM, disinterested or indifferent decision-makers are called "cynics". They are criticised – mostly behind their backs, as far as I observed – for doing their job badly.18 Cynics are said to enter asylum interviews with closed minds,

17 The same has been observed in the case of registry of fices in Switzerland and welfare of fices in the US (Lavanchy 2014: 99; Watkins-Hayes 2009: 50f).

18 An observation I made in the SEM is that decision-makers of ten denounce their colleagues – particularly those working in other units of the of fice – for bad decision-making (see Af folter et al. 2019). The most common emic distinction made is between "hardliners" and "sof ties" (see Miaz 2017: 372). While the former are criticised for being too rigid in their decision-making, the latter are accused of being too lenient. During my fieldwork, I only observed such criticism being made behind other people's backs. However, I was privy to a rumour which leads me to believe that the dif ferent "attitudes" may actually be used in apportioning cases. I was told that superiors tend to direct the applications they think will most likely be rejected to those caseworkers who take negative decisions more frequently than others whereas the cases more likely to be judged favourably are

always already knowing that everything will be a lie. This opposes the norm of open-mindedness. During my research, I was frequently told what is also taught in the training modules, that decision-makers must be open-minded in order to do their job well. They should go into every interview with a *tabula rasa* even if, at the same time, they should already have an idea of what the decision might be in order to conduct the interview efficiently.

While becoming a cynic is perceived as a greater risk for older employees who have already "seen too much", being naïve (and not sceptical enough) is regarded as an attribute that new employees have to grow out of. Connected to these perceptions is a crucial difference in critique. Whereas naïve decision-making is regularly equated with being *unprofessional*, I have never come across that criticism of cynical decision-making.19 New decision-makers who "naïvely believe everything the claimants tell them" appear to lack sufficient understanding of what it means to properly fulfil their duty, and experienced decision-makers who naïvely believe an applicant are often criticised as being lazy – too lazy, one could interpret, to properly fulfil their duties. On the other hand, the term often used to describe an overly suspicious and cynical attitude is *déformation professionelle*, or occupational hazard. Used by SEM officials to describe how the views of decision-makers may become distorted by long service on the job, this term is applied when veracity is disparaged too much.20 Thus, critiques of cynical decision-making do not criticise officials for being unprofessional or not protecting the system, but for taking protection too far, and losing sight of those who are "deserving".

#### The apolitical decision-maker

When Alberto, slightly defensively, brought up "the question of nation states" in a conversation introduced earlier in the chapter, and "whether one thinks nation states are good or not," he was referring to a particular political ide-

given to those decision-makers with a reputation for granting asylum more readily (see also Fassin and Kobelinsky 2012: 462).

19 And neither have Jonathan Miaz and Ephraim Poertner who also conducted research in the SEM (see Af folter et al. 2019: 281).

20 In academia, the term *déformation professionelle* can be traced back to the sociologist Daniel Warnotte, who used it to describe how "bureaucrats" become "intellectually and emotionally damaged by their roles" (Maccoby 2007: 62).

ology that questions the fundamental idea of nation states. Even if he was sympathetic towards this idea – Alberto did not really state his opinion and left this possibility open – the message he conveyed is clear: On the job, there is no place for personal political opinions. But not only that. By saying that these problems "cannot be solved by what we do", he insinuated that decision-making is also apolitical. Both of these statements ref lect perspectives that are common in the SEM.

The "apolitical" norm fits with the impersonal spirit Weber depicts as an important feature of the bureaucratic ethos. He writes:

"*Sine ira et studio*," without hatred or passion, and hence without af fection or enthusiasm. The dominant norms are concepts of straightforward duty without regard to personal considerations. […] This is the spirit in which the ideal of ficial conducts his of fice (2013: 225).

In contrast, the "politician's element" is "*ira et studium*" (Weber 1991: 95). Thus, according to Weber, politicians must have passion and fight, whereas bureaucrats should do neither. A similar opinion is widespread in the SEM: there "all" an official should do is to follow rules and "neutrally apply the law". This is illustrated in the following quote:

I have a problem with "missionaries". And there are some here in the SEM. We don't have a mission here.  We don't have to protect Switzerland from foreigners. That is not our role. But some people here feel this way. They think that there are too many asylum seekers here. But that is not my problem. I am paid to take decisions, so I take decisions. On the other hand, there are some who proselytise on behalf of the asylum seekers. They think that everybody should be able to stay here. But that is not the case. We have the law. […] And then there are the others who say: "If you give a temporary permit to this guy, who is only 20, and then he stays for 30 years, that will cost Switzerland 10 million francs." Again, that is not my problem. If he fulfils the eligibility criteria he can stay. If you're not happy with it, you have to change the law. But then you have to go into politics, you shouldn't be working here. (Barbara, caseworker, interview transcript)

I find Barbara's quote particularly telling in three regards. First, she depicts "doing the job one is paid to do" and "sticking to the rules" as apolitical work.

However, from an analytical perspective, I would not claim that SEM decision-makers are apolitical actors, but rather that they make policies (and politics) while "translating and implementing [them] into action" (Wedel et al. 2005: 34). Barbara's statement illustrates how "the political" is masked "under the cloak of neutrality" (Shore and Wright 1997: 8).

Second, Barbara uses the word "missionaries" to describe a role decision-makers should not take on. Missionaries pursue clear goals with their decision-making: they either want to enable everybody to stay, or to make sure that as few people as possible are allowed to remain in Switzerland. In contrast, Barbara claims that a professional decision-maker's only aim should be to "correctly" and "neutrally" apply the law. For her, professional decision-making has no room for ideologies and pursuit of goals other than following the law. At first sight this could be perceived to contradict what I have described as being the ethics of the office. But I argue that this is not so for the following reason. Although my interaction partners rarely presented what I have described as the ethics of the office as explicit norms, they are, nevertheless, prevalent in my material as ideologies underlying the explicitly stated norms and values. Because they lie at the heart of professionalism in the SEM, these ideologies (unlike the ones Barbara describes) are not perceived by decision-makers as being outside the law, but they implicitly inform what "correct" and "neutral" rule-following means.

Third, Barbara's quote tellingly advocates for "political neutrality" – which is widely recognised as an important norm within the SEM. However, what this means exactly may vary for individual decision-makers. At several points during our conversations, Barbara clearly identified herself as "anti-SVP" (the right-wing Swiss People's Party). Hence, she was most critical of what she sometimes called "SVP-decision-making". On the other hand, several other interaction partners criticised "left-wing decision-making". For example, one superior claimed that some of her "left-wing" colleagues, who were too lenient in their decision-making because they "want[ed] to save the world", were egoistic. By calling her "left-wing" colleagues' decision-making egoistic, she is criticising them for doing what feels good and looking out for themselves, instead of strictly following the rules. In her view, they should have fulfilled their duties as decision-makers by attending to the broader aims of the office: protecting the system and reserving government protection for the "truly deserving".

#### The necessity of "digging deep"

This section addresses a widespread decision-making practice regarded as a "correct" and "neutral" rule application: "digging deep". My example shows how the ethics of the office shapes decision-makers' discretionary practices, making it normal and desirable for them to act in specific ways. I understand discretionary practices to be processes of interpreting the law when fitting it to specific cases or situations. Therefore, discretion necessarily forms part of the law, since (written) law is "by its very nature unspecific" and "always needs to be applied to a specific situation, and therefore interpreted" (Eckert 2015: 1). "Digging deep" is a discretionary practice used to "apply" Article 7 of the Swiss Asylum Act, which regulates "proof of refugee status".21 The example of "digging deep" that follows allows me to show how this everyday practice is shaped by the norms discussed above, and also how it reaffirms these same norms and values, upon which it is based.

Fair decision-making requires strict rule-following. As discussed above, if legal arguments support rejecting a case, it must be rejected. Many scholars have observed that asylum proceedings function as quests to find reasons to doubt applicants and deny their claims (see, for instance, Scheffer 2001: 194, 2003: 455). This can be seen in asylum interviews, where questioning is oriented towards "discovering" mistakes and "uncovering untruths". While decision-makers simply call this practice "testing credibility", I call it "digging deep". When "digging deep", decision-makers ask "tricky" questions in asylum interviews and/or undertake extra investigations until they have enough arguments to reject a claim, or are convinced that the applicant's story is true "after all".22

As the above-mentioned norms and values suggest, "digging deep" is the epitome of good and professional decision-making in the SEM. The practice

21 Article 7 AsylA reads as follows: "1Any person who applies for asylum must prove or at least credibly demonstrate their refugee status. 2Refugee status is credibly demonstrated if the authority regards it as proven on the balance of probabilities. 3Cases are not credible in particular if they are unfounded in essential points or are inherently contradictory, do not correspond to the facts or are substantially based on forged or falsified evidence" (https://www.admin.ch/opc/en/classified-compilation/19995092/index.html [accessed 20 September 2018].

22 An exception is when decision-makers know "from the beginning" that a story is "simply true" due to their professional-practical knowledge (see footnote 15).

is framed as "necessary", allowing decision-makers to make positive asylum decisions with a "clear conscience":

Sometimes you do an additional interview when technically everything indicates that a story could be true but there are two, three contradictions in it. In such cases it just *feels strange* to grant asylum when there are still some uncertainties, some open questions. So, then you do [an additional interview] so that if you then get an answer that really satisfies you, you can write a positive decision *with a clear conscience*. (Denise, caseworker, interview transcript)

Here Denise is talking about the need to carry out additional asylum interviews if, after the first "in-depth" interview, too many uncertainties remain. She refers to cases in which something "feels off", but there are not enough discrepancies to reject the claim. In those cases, Denise declares, she has to "dig deep" in order to see whether there are arguments against asylum. If arguments exist, the claim "can" be rejected. If not, a positive decision can be made with a "clear conscience".

In order to "dig deep", decision-makers use a particular questioning technique taught to all caseworkers during their initial training.23 It is common for decision-makers to begin their questioning by asking about applicants' reasons for leaving their country and applying for asylum. Interviews open with a question such as: "Why did you leave country and apply for asylum in Switzerland?" After that, decision-makers follow-up with specific "whquestions" and some yes or no questions. At the end of the interview, the asylum seekers are usually confronted with contradictions found in their story.

The open question at the beginning is intended to give asylum seekers the opportunity to tell their stories. One purpose of the follow-up questions (the wh- questions in particular) then is to enable the decision-makers to collect all the necessary information for taking their decisions (e.g. who exactly the persecutors were and what might have been motives for persecution). Another purpose of these questions is to see whether asylum seeker can talk in detail about certain events they are asked about (e.g. "please tell me in detail about the daily routine in prison") or to generate answers the decision-makers can then compare with "facts" they can look up (e.g. "what was

23 For a closer discussion of this technique in reference to a specific empirical example, see Af folter (2017a: 71f f).

the name of your church that was bombed?"). Both these things – depending on whether asylum seekers manage to answer them adequately or not – serve as indicators of credibility or non-credibility. Finally, these questions allow for comparisons. Hence, in order to "be able to" reason non-credibility decisions on the basis of contradictions, decision-makers need on-file facts that they can compare with each other.

My interaction partners used two distinct metaphors to describe this three-step questioning technique: "It is like a funnel (*Trichter*)", one of them said. Another one compared it to the "tightening of a noose (*Zuziehen einer Schlinge*)". The first metaphor seems to indicate that one gets closer and closer to the heart of the matter through this kind of questioning, "the truth" (or "non-truth") of what happened. The second metaphor seems to assume that asylum seekers often lie, and sees the procedure as a means of exposing the liars. Several decision-makers stated that starting with an open question was useful because asylum seekers' "free narrative" (*freien Erzählung*) tended to get tangled up in contradictions "if the story was not true".

As Scheffer (2001: 184) and Trueman (2009: 296) have argued, such questioning techniques, rather than passively "discovering" mistakes and "untruths", actively generate them. They therefore contribute to creating the figure of the "false refugee". Once asylum seekers have been classified as "false refugees" and assigned to the legal category of "non-refugee" (with or without temporary admission), their very existence reinforces the perception that there "are" indeed many false refugees. This perception, in turn, strengthens endeavours to identify and deny them asylum (see also Zimmermann 2011: 337). Thus, the practice of "digging deep" reaffirms decision-makers' duty to protect the system, and confirms ideas of how professionals should act in service of this duty (see Eckert, this volume).

#### **Concluding remarks**

In this chapter, I have shown how the ethics of protecting the system make "digging deep" the routine thing for decision-makers to do. "Digging deep", in turn, reinforces the professional norms that lie at its heart, and reaffirms decision-makers' role as protectors of the system. By exploring the professional norm of fairness in detail, I have portrayed how the procedural values that make up the bureaucratic ethos are shaped by the ethics of the

office. The bureaucratic ethics not only seem to yield professionally necessary behaviours – things decision-makers *have to* do – certain professional behaviours, such as "digging deep", also become *morally right* or, we could also say, *ethical* ways for decision-makers to act.

It has frequently been argued that "bureaucracies" and "bureaucrats" are indifferent (see Arendt 2013; Bauman 2000; Gill 2016; Herzfeld 1992). Gill thus writes that "bureaucrats" cease to care about the people they deal with because their concern and compassion for them is overridden by other concerns: most notably instrumental-rational rule-following (2016: 136). However, I have shown on the basis of the procedural norm of fairness not how concern for people is overridden by other concerns but rather how it is brought into accordance with the exclusionary ethics of the office.

For this purpose, many authors have argued that in order to understand how bureaucrats bring in line law and policy work, we need to pay attention to "bureaucrats'" actions, routines and habits (Fassin 2015: 4; Silbey 2005: 324; Wedel et al. 2005: 34). Here, rather than "simply" looking at what "bureaucrats" do, I have dealt with one important aspect of *what makes them do what they do*; namely, what they think they should do (see Eckert, this volume).

Institutional norms shape the "practices of the state" (Migdal and Schlichte 2005: 15; see also Bierschenk & Olivier de Sardan 2014: 5ff; Eckert et al. 2012: 15). Such norms, images of what the public good constitutes and the understanding of how the public good might best be served change over time (Eckert, this volume). Taking what bureaucrats think they should be doing seriously at different times and places, i.e. within their specific historical situations, we are able to show how bureaucratic ethics and ethos are transformed. This allows us to better understand "states at work" (Bierschenk and Olivier de Sardan 2014) in and across different (historical) settings. My analysis offers an explanation for the exclusionary workings of the Swiss state, asylum law and policies. In particular, it contributes to understanding why the majority of asylum claims end up being rejected on the basis of "non-credibility".

#### **Bibliography**

Lipsky, Michael. 2010. *Street-Level Bureaucracy, 30*th *anniversary Edition: Dilemmas of the Individual in Public Service.* New York: Russel Sage Foundation.

Marf leet, Philip. 2006. *Refugees in a Global Era.* Basingstoke: Palgrave.

*Migration steuern und verwalten: Deutschland vom späten 19. Jahrhundert bis zur Gegenwart*. Göttingen: Vandenhoeck & Ruprecht: 423–458.

## **The Asylum Procedure in Border Detention** The Technicalities and Morals of Truth Determination in France

*Chowra Makaremi*

#### **Introduction**

France has established a border control system at airports that organizes deportations in real time. These deportation practices are nonetheless restricted by international laws concerning asylum, which the French state undertook to respect as a signatory to the 1951 Geneva Convention on the Protection of Refugees. Two principles apply in particular: an asylum seeker is exempt from presenting documents to cross the border of a country where he or she seeks asylum, and he or she cannot be deported until his or her application has been heard and examined.1 At Roissy-CdG Airport in Paris, for example, asylum seekers must be detained until their applications can be examined and adjudicated before they are allowed to enter France. Thus, the legalities of refugee protection necessitate their detention. This places asylum administration at the origins of border detention (Crépeau 1995).

State power holds sway over asylum applicants in an exceptional legal and administrative space determined by specific identification and classification processes. An applicant's personal account, given to a refugee protection agent at his or her hearing, is the foundation of asylum procedure. The conditions of migration are negotiated in a space where the national host community is redefined literally by filtering and excluding those who do not belong to it, and figuratively by affirming common rationalities and

1 "Non-refoulement" (defined in article 33 of the 1951 Convention Relating to the Status of Refugees) has become a principle of *customary* international law, as it applies even to states that are not parties to this Convention or its 1967 Protocol.

moral values, such as democratic assistance or protection of the welfare state against abuses and false refugees (Noiriel 1992, Crépeau 1995, Lavenex 1999, Schuster 2005). Several studies have pointed out that asylum management in Western countries is based on truth determination practices (Herlihy, Gleeson and Turner 2010, Fassin 2013, Kobelinsky 2015, Kynsileto and Puumala 2015, Maskens 2015). These practices are articulated from imperatives of control that aim to restrict the immigration of asylum seekers from unwanted populations (Marrus 1985, Belorgey 2003 and 2007, Rousseau and Foxen 2006, Valluy 2009). These studies remind us that rules established (or crafted *in situ*) for truth determination are inseparable from issues of speech, power and population management. Starting with my fieldwork narratives, this chapter explores how asylum procedures at the border, built on ways of determining truth and falsehood, are exercised under the mutual suspicion of both the applicants and the administration.

For someone experiencing detention at the border, control and resistance are tied to the process of "narrating oneself" (Butler 2005), of putting memory into words. But this personal narrative is conditioned by the applicant's precarious situation and by administrative scepticism. Narrative structure and form are anchored in the narrator's psychic, cultural and social condition, including his or her experience of border detention. Both sides have a stake in how the narrative is articulated.

For applicants, coherence and veracity determine the likelihood of sincerity and whether their cases fit under an increasingly restrictive reading of the Geneva Convention. Narratives must also confront, def lect or decode collective representations in the host country that "produce indifference" towards asylum seekers (Herzfeld 199) in the administrative world of border control. For the administration, standards of judgement perform the double work of narrative transcription and evaluation, constructing a "regime of verification" (Foucault 2004b) to determine the fate of refuges. This chapter will investigate processes of identification and administrative categorization, the interactions and narratives that together build asylum procedure as a space where "truth" is investigated by asking: What epistemology is at work here? What meanings and definitions of "truth" apply? How are national rationalities and moral order delineated at the border, where individual decisions control who can enter and who cannot?

This chapter explores these questions through an ethnography of border detention based on my fieldwork at Roissy-CDG Airport in Paris, where

I volunteered as a legal assistant with the NGO Anafé (*Assistance nationales aux frontières pour les étrangers*) between 2004 and 2008. I assisted undocumented migrants and asylum seekers with their paperwork and helped them navigate their administrative journey through border detention. This "observatory participation" (Makaremi 2008) not only gave me access to the detention centre, it helped me understand the procedure, its temporality, its actors, its spoken and unspoken rules and how it functions in general. This kind of engaged ethnography presented specific methodological and ethical challenges. But it also offered new paths for knowledge production that combine the traditional demands of objectivity with an openness to the heuristics of emotions, experience and empathy.2 The analysis I offer here builds on field notes, observations of individual trajectories, a critical review of forty-eight asylum decisions and interviews with both refugee protection officers and former detainees who had been admitted to France. Many years have passed since I collected this empirical data. Almost a dozen laws and regulations have modified border detention and asylum procedure in France. However, these legislative changes did not address real needs for procedural readjustment but rather directly ref lect the role of immigration in global political power struggles. A new modality of ill-treatment and exclusion through administrative complexity has instilled institutional violence in the rule of law. Nevertheless, here I focus on the underlying logics and administrative episteme, setting aside recent border detention and asylum controversies, which have rearranged but not substantially affected the form of government at play.3

#### **The bureaucracy of border asylum**

According to figures from the French Ministry of the Interior, 33 percent of those kept in airport waiting zones in 2015 were asylum seekers (Anafé 2016). The special procedure for examining asylum applications in such areas has evolved over the past three decades, but its guiding principle is as follows: applications are examined at the border by officials of the Asylum Division, who draw up "opinions" for the Ministry of the Interior, which decides

2 I discuss these issues in Makaremi 2008.

3 For a discussion of recent developments of asylum laws see, for instance, Palluel 2016.

whether or not to admit the asylum seekers to France. Yet, this decision is only a first screening. Although the administrative authority is the same, asylum at the border is treated differently from asylum within in country. Several procedural differences at the border inf luence the trajectories of asylum seekers.

Firstly, application at the border is not for refugee status, but to gain admission to the country as an asylum seeker. Once an asylum seeker's application has been accepted, he or she is allowed to leave the waiting area and enter France, but must apply for asylum in the prefecture within eight days. His or her application, consisting of a written form and an oral interview, is reviewed for the purpose of granting refugee status by the French Agency for the Protection of Refugees and Stateless Persons (OFPRA).4 It is not rare for an asylum seeker admitted to the country to be subsequently rejected by OFPRA and then by the National Court of Asylum (CNDA), which examines appeals made by rejected applicants (Valluy 2009). Conversely, an asylum seeker rejected at the border, but who succeeds in entering France at the end of his or her stay in the waiting zone, can still apply for asylum and obtain refugee status.

Secondly, asylum application at the border does not involve the filling out of a form or presentation of a written personal narrative. The examination is based solely on an oral hearing lasting between ten minutes and three hours; the determination is reported within three days of the hearing on average.5 OFPRA's procedure for granting refugee status allows the asylum seeker one month to complete a written file in French, which may be followed by an oral interview. According to OFPRA's 2015 annual report, the average time it took to process an application was 100 days – reducing processing time has been an important political issue in immigration control policy (OFPRA 2015: 35). Finally, OFPRA agents at the border examine asylum applications under Geneva Convention rules only: no subsidiary protection can be granted at the border, although this can happen on French territory.6 Although offi-

4 Karen Akoka of fers a sociological history of this institution (Akoka 2019).

5 "In 2015, 72% of OFPRA's decisions were given within 48 hours of placement in the waiting zone, and 90% within 96 hours". (OFPRA 2016)

6 In France, subsidiary protection is the protection granted to claimants who are not granted of ficial refugee protection (for instance, only subsidiary protection can be granted to people coming from countries of ficially recognized as "safe countries" by OFPRA, such as Turkey).

cials assert that examination criteria are the same in the waiting area and on French soil,7 the Asylum Division at the border works according to particular rules (spoken and unspoken) linked to the specificities and technicalities of border detention. At the same time, the issues at stake and the practices of asylum treatment in a restricted space and time can be seen as a microcosm of asylum as a whole, as this chapter explores.

In 1991, the Marchand Decree established the procedure by which asylum seekers in waiting areas at the border are heard. The procedure falls within the competence of the Border Asylum Division (DAF), which was originally attached to the Foreign Ministry. In 1998, applications increased considerably, coming close to current figures.8 In addition to a permanent staff of four OFPRA protection officers, ten to fifteen contractors were recruited and trained to handle the increase in applications by the head of the Sub-Directorate of Refugees at the Ministry of Foreign Affairs. This coincided with the introduction of a more restrictive doctrine for granting asylum.9 From 1998 until 2001, the first team of agents left the DAF to form OFPRA's "Eurafrica section" (sections are organized according asylum seekers' region of origin). In 2001 and 2002 the establishment of a new management team within the DAF signalled the beginning of OFPRA's gradual strengthening of the asylum bureaucracy at the border. OFPRA was within the Interior Ministry, but the DAF was attached to the Ministry of Foreign Affairs. The DAF now began to develop its own approach to asylum based on the context and objectives of border control, as well as the personality, management methods and vision of its leadership. Restrictive interpretations of asylum led to significant pressure to reduce admission. Rates of around 40 percent in 2001 fell to just under 20 percent in 2002, and dropped dramatically to 3.8 percent in 2003. At that point even OFPRA expressed disapproval of asylum examinations at the borders.

7 Minutes of the meeting between Anafé and OFPRA on the concept of "manifestly unfounded", 23 May 2007: http://www.anafe.org/download/generalites/CR%20r%E9union%20a nnuelle-version-assoc-16-04-07.pdf [accessed on 20 October 2018].

8 In 1991, 500 asylum claims were registered at the border. This figure increased to 4,409 in 2008, but decreased again to 1,180 in 2017, according to OFPRA annual reports (https:// www.ofpra.gouv.fr/fr/l-ofpra/nos-publications/rapports-d-activite [accessed 20 October 2018].

9 Interview with M. Souza, a lawyer and member of the Anafé executive board, 18 March 2005 (all names have been anonymized).

The DAF hired fifteen new staff members in 2002 to replace the former team and respond to increased asylum requests. This new team was composed of young graduates with master's degrees hired on short term contracts. The job profile for protection officers did not call for specific legal knowledge: officers learned the ropes by observing their supervisors on the job, as one recalls:

My first chief was Mr. L.: he was from the DGSE [Directorate General of Foreign Security, Foreign Intelligence Services of France] and had been a former spy. How should I put it… he was more a man of the action than a man of reflection. For him, 98 percent of asylum seekers were liars. My training was to watch my chief do the job. The first time I had a conversation with Mr. L., I was embarrassed because I felt that the criteria for judgment were absurd. I recall how, in an interview, he asked an asylum seeker to describe his cell and tell him how many square meters it was. The asylum seeker, anxious, responded "four square meters". At the end of the interview, M. L. told me: "You see, he's telling lies. There are no prison cells of four square meters!" (Interview with Élodie Noir, protection of ficer (OP) in the Border Asylum Division, 19 May 2005)

The youth and inexperience of this second team of DAF officers, their status on short term contracts, the lack of prerequisite skills, and the on-thejob training methods combined to diminish their autonomy and room for manoeuvre in 2002. This trend strengthened the tendency of the DAF to operate autonomously of refugee protection procedures as they were applied on French territory proper. However, on 21 July 2004, a new decree placed the DAF under OFPRA's supervision, where it remains today. In 2004, the asylum admission rate was 7.7 percent. Since 2005, the DAF's management has changed, but the daily routine of asylum examinations has remained the same since airport waiting zones opened in the early 1990s:

In the morning there are envelopes with cases: we divide the interviews. At present there are only one or two [cases] per person per day, which is not much. The narratives are taken in their entirety and sent with notes to the chief, who has already received the report on the individual's situation by fax. […] The chief either accepts our opinion or does not: he intervenes only to turn an agreement into a refusal. Then he sends his opinion to the DLPAJ [police]

who transfer it to the GASAI [Interior Ministry], which gives the final decision. The of ficers who issued opinions on "manifestly unfounded" claims no longer have any influence decisions from the moment the case is reviewed by the chief. (Interview with Élodie Noir, protection of ficer (OP) in the Border Asylum Division, 19 May 2005)

All asylum applications rejected at the border are called "manifestly unfounded". This is because refusal decisions at first screening rest on a country's legal right to reject "manifestly unfounded" applications that are false or fall outside the asylum framework. Refusal decisions are issued by the Directorate of Civil Liberties and Legal Affairs (DLPAJ) of the Interior Ministry, on official forms faxed from its offices in Paris. The notice most often comes on two sheets. The first part cites the legal texts governing the right to asylum in France, the asylum seeker's identity as officially registered (e.g. "Youssef Betrik alias Ali al-Darwi, born on 27/03/1980, declaring himself a Palestinian citizen") and the application date. The second part summarizes the asylum seeker's narrative in a few lines before stating, in a second paragraph, the OFPRA's reasons for refusal. The last part presents the DLPAJ's formal decision: the application is rejected, the applicant will be deported, the border police are "responsible for the notification and enforcement of this decision".

#### **The asylum framework**

On the morning of November 5, 2007, the Roissy police arrest Ahmed Masri while checking a f light from Hanoi, Vietnam. Ahmed asks for asylum at the police station and is transferred to the detention centre. There an OFPRA officer, a man in his thirties wearing a suit and a tie, hears the case in the late afternoon. The room, unlike others in the centre, has windows that can be opened, which overlook shrubs bordering the entrance way. In Arabic, the agent asks Ahmed to sit on the other side of the desk. The agent stands behind a computer and says to Ahmed: "I'm listening." As Ahmed speaks during the 20-minute interview, the agent takes notes on his computer. When Ahmed finishes speaking, he is asked if he has anything to add. Then he is asked to name the Jewish settlements close to his home. Afterwards, the OFPRA officer thanks him and takes him to the door. Ahmed takes his police papers