Can Europe Make It?

A populist myth about immigration courts and public opinion: evidence from the US and Sweden

The concept of mass immigration is politicized. Rather than registering reality objectively, it is used to further particular interests of the state as well as powerful non-state organisations.

Admir Skodo
3 March 2018


A group of EU migrants in Malmö live in caravans and simple shelters in the winter cold at a demolition site at the Nobel Road - Industrial Street in Malmö. February, 2015. News Øresund, Malmö,

Contemporary populist movements on the right in Sweden and the US believe in a collusion between elite institutions such as courts and marginalized groups such as immigrants. The “people”, they believe, are really against immigration. Courts therefore go against the will of the people.

These populist movements claim that such a collusion poses an existential threat to their respective nations by furthering mass immigration. And they see themselves as the only ones that can save their nation.

Screen Shot 2018-03-02 at 21.11.33.png

Screenshot of Breitbart front page headline, July 9, 2017.

Some immigration scholars even argue that while popular opinion in western countries favours restrictionism, the autonomy and human rights concerns of the judiciary has ensured the permanency of mass immigration.

But the available evidence from the US and Sweden presents a different picture. Immigration courts are influenced by politics and ideology and exhibit significant variation in decision outcomes. Popular sentiment on immigration is mixed and shifting but is far from uniformly anti-immigrant.

Variation and ideology in immigration court decisions

In asylum applications that end up in immigration court, we find that the judiciary is far from uniformly trigger happy to approve cases. In the United States, major variation exists between liberal states, such as California, and conservative states, such as Georgia. Between 2012-2017 immigration judges in Atlanta, Georgia had a 79-91% denial rate, while those in San Francisco, California exhibited a much more fluctuating rate between 9-94%. But even in San Francisco, considered to be the pinnacle of the American progressive city, there were major differences between individual judges. Out of 21 judges, four had a denial rate of over 50%, while seven had a rejection rate below 20%.

Statistics aside, American immigration courts have structural features that can undermine due process. Dana Marks, a veteran immigration judge in San Francisco, described some of these features to Mother Jones magazine: “the federal rules of evidence don’t apply, the judges don’t have contempt authority over attorneys… We don’t have court reporters.”

In Sweden, an executive officer at the Swedish Migration Agency told me that less than 5% of all rejected asylum decisions are overturned in court. Two recent studies on Swedish immigration courts partly explain why this is the case. The economist Linna Martén has demonstrated that political party affiliation influences the decision-making of immigration jury members. Simply put, jury members from conservative parties tend to reject asylum seekers’ appeals more than those from leftist parties.

The legal scholar Livia Johannesson has shown that Swedish immigration courts, like American ones, do not fully measure up to the strictures of due process. Asylum seekers in court are structurally at a disadvantage in that they lack key knowledge of laws and procedures and are met with distrust by the court. In general, asylum seekers suffer from somewhat arbitrary court interpretations of what constitutes a “credible” narrative of persecution, which is the key piece of evidence in Swedish asylum cases.

Public opinion on immigration is complex and changing

With regard to the popular support of restrictionism, we find a complex and shifting picture. In a 2014 European Social Survey the majority of Swedish respondents believed that immigration should be allowed to a “great” or “pretty great” extent. However, by late 2016, following the “refugee crisis” of 2015, a majority in the polls wanted to see a reduced intake of refugees.

In 2015, a Public Religion Research Institute national survey found that nationally 55% of the American population believe that “immigrants today strengthen our country because of their hard work and talents”, while 36% believe that “immigrants today burden our country because they take our jobs, housing, and healthcare”. Unsurprisingly, there were significant variations between states.  In 34 states, including California and Texas, over 50% responded that they believe immigrants strengthen the country.

When it comes to Syrian refugees, the same research institute found in 2015 that: “Despite heightened concerns about terrorism – and political rhetoric linking Muslim refugees to the threat of terrorism – a majority (53%) of Americans support allowing Syrian refugees to come to the US provided they go through a security clearance process”.

In 2016, the same Institute found that 62% of Americans believe that “immigrants who are currently living here illegally should be allowed a way to become citizens provided they meet certain requirements”, while 15% believe that they should become permanent legal residents but not citizens. 19% believe that “illegal immigrants should be identified and deported”.

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Screenshot: Daily Mail headline, March 5, 2016.

Mass immigration is a politicized concept

According to immigration scholar Christian Joppke, the pro-immigration stance of courts explains why we continue to see mass immigration in the west even though there is a popular demand to bring it to a halt. But this far too neat explanation is not borne out by the evidence. Moreover, it takes for granted that the concept of mass immigration is an innocent empirical description, which is not the case.

To begin with, it is questionable whether “mass” is an accurate word to describe the numbers of immigrants who arrive in western countries every year. Even at its worst, the number of asylum seekers in the EU during the refugee crisis of 2015 led to increases in immigration population by at most 1.5 percentage points in countries like Sweden and Germany. In the United States, immigration between 2010 and 2016 led to an increase in the immigrant population that was less than one percentage point.

Then there is the fact that western states are far from powerless in regulating the numbers of immigrants that can enter their territory. The Swedish government’s recent introduction of border controls and tougher asylum laws effectively brought the number of new asylum seekers to desirable levels. The number of border patrol agents in the US has increased from 3,200 in 1986 to 19,437 in 2017. Deportations of immigrants have been known to exceed one million per year since the 1980s.

Clearly the concept of mass immigration in general, and mass immigration as a threat in particular, is politicized. Rather than merely registering reality objectively, it is used to further particular interests of the state as well as powerful non-state organisations, such as private corporations that profit from the detention and monitoring of immigrants.

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