Public defense: Hanna Buer Haddeland

Drawing on in-depth interviews with 29 rejected asylum seekers, court observation, and analysis of administrative health decisions and legal sources, this dissertation examines how rejected asylum seekers experience and behave in relation to their legal status and related legal rules, the extent of their access to the right to health care, and whether they mobilize for greater recognition. The sociolegal design of this thesis is novel in the study of irregular migration in Norway and is suitable for studying the relationship between the law and social conditions, including access to rights and potential gaps between rights, needs, and access to health care. The thesis examines access to rights in light of the threat of punishment and coercive mechanisms. It uses the theoretical concept of legal consciousness to analyze rejected asylum seekers’ understanding and experience of the law and the extent of their access to rights.

Theoretically, this thesis is situated at the intersection of various scholarly debates and research domains. The findings on irregular migrants’ access to health services in Norway contribute to the field of social policy. The lack of a right to treatment of serious mental health issues, the lack of rehabilitation rights after a medical emergency, and the narrow interpretation in theory and practice of the term “absolutely necessary” health care could potentially raise issues under the European Convention on Human Rights, Articles 2 and 3, and the International Covenant on Social, Economic and Cultural Rights, Article 12 (Paper I). The findings show that unclear regulations—primarily related to payment for health care and the term “absolutely necessary” health care—result in different practices among health institutions so that some receive less and others receive more health care than the law dictates. Procedures related to payment for health care vary from no invoicing to invoicing that corresponds to the rates paid by members of the National Insurance Scheme to invoicing for the total price of the treatment received. Economic access to health care must be understood in light of the lack of a right to work and to social benefits. Actual access to rights is also affected by language skills and whether one is de facto deportable (Paper IV). While fear of deportation may cause reluctance to seek public services, language skills can increase people’s awareness of their rights and empower them to confront erroneous rejection, which may result from unclear regulations (Papers I and IV).

This thesis contributes theoretically to the concept of legal consciousness by demonstrating that social structures—social relations and available networks; awareness of civil rights; culture; and language skills—affected whether the study participants were engaged in collective forms of resistance and mobilization (Paper III). Axel Honneth’s theory of recognition is used to extend the dimension of “dissenting collectivism”—developed within the scholarship on legal consciousness—to capture the collective resistance of the marginalized. The thesis also makes a theoretical contribution to the scholarship on “crimmigration.” Like recent studies on the transformation of bordering processes from below by migrants and their allies, this thesis provides insights into the intricate dynamics between the power of the law, resistance, and the potential for social change (Papers II and III). It challenges the perception of criminalization as a seamless process and examines how actors can mobilize against increased “crimmigration” and challenge its legitimacy by uncovering discrepancies between penal power and core values such as human dignity and compassion (Paper II).

The thesis demonstrates that although rejected asylum seekers are in many ways legally excluded, they strive for recognition. All participants had availed of legal assistance after the Immigration Appeals Board had rejected their applications, and most had paid for it. Their fear and reluctance to return to their countries of origin outweighed the threat of punishment for illegal residence. The seldom enforcement of penalties related to illegal stay was reflected in how the participants perceived their illegal stay, namely primarily as a result of injustice rather than a crime (Paper III). The threat of penalties related to working, and the lack of access to the informal labor market, contributed to most people not working. Unlike studies portraying these migrants as fearful of any involvement with the authorities, the thesis demonstrates that violated expectations of recognition can lead to resistance and collective mobilization. While rejected asylum seekers are not entirely deprived of legal protection and rights, they are—primarily because they are not granted the right to work—dependent on others. Their dependence on the “goodwill” of others places them in a vulnerable position and can lead to friends, including partners, being held criminally liable.