Inside the Deportation Gap: Social Membership for Non-Removed Migrants

Liberal democracies often issue deportation orders but ultimately refrain from executing them. This deportation gap raises social and legal questions about the situation of a large number of persons who have not been deported but remain in the territory. From a political perspective, the presence of non-removed migrants is unintended and largely unwanted, yet it allows access to some basic rights and services on the grounds of human rights obligations and universal personhood. As a result, a relationship between formal non-members - the non-removed individuals - and the state emerges which we theorize as social membership. Starting from this understanding of membership, the central aim of the proposed project is to describe, analyse and provide an adequate and deep understanding of social membership of non-removed individuals. Empirically, the project examines the social policy domains social assistance, emergency healthcare, basic education and housing in four states: Austria, France, the Netherlands and the United Kingdom. Analytically, the project puts a focus on the differentiation between law- based, discretion-based and non-compliant elements of social membership, drawing on public policy research. The legal framework for dealing with non-removed persons will be examined by analysing legislative material and ministerial decrees. Discretionary aspects will be examined through expert interviews with representatives from public administrations to understand which eligibility criteria are left to be defined by street-level bureaucrats. These data constitute the basis for a survey of street-level bureaucrats holding a gatekeeper function in the mentioned areas of social services to question the scope of discretionary power in the access to social services. Via focus groups with non-removed migrants, non- compliance is explored. Finally, the project will develop a typology that identifies and contrasts outcomes of social membership of non-removed migrants. This typology will allow considering and discussing variance in types of membership in different policy fields and across countries and lay a solid ground for future work in the field. The main objectives of the project are: generating knowledge on the making and outcome of social membership; explaining differences in legal and policy responses to temporarily non- removed migrants across nation states and policy fields; providing social scientists with adequate data on the group of non-removed persons and reflecting theoretically on the concept of membership in the realm of precarious and fragmented social rights of non- removed persons. Furthermore, in the course of the project a network of national and international scholars working on the topic of non-removal will be established, resulting in joint analyses. Through its empirical focus on the making of social membership and theoretical reflection on its varying types, the proposed project contributes to answering key questions in the fields of membership studies, comparative migration politics, public policy making and the liberal democratic paradox.

Summary for public relations work In the wake of rising asylum applications, the return policies gain importance in many European states. Nevertheless, there are reasons for the non-deportability of migrants who are denied the right to stay. According to official estimates for 2018, more than one million non-removed rejected asylum seekers reside in the EU. What access to social rights are migrants entitled to who fall into the category of pending deportation? Which legal and political factors have an impact on the social situation of this group? In short, in most of the EU Member States, non-removable individuals have no residence permit status and therefore only very fragmented and precarious social rights. The findings of the "Inside-the-Deportation-Gap-Project" are derived from three in-depth case studies - the regulation and practice of access to social rights of non-deported persons in Austria, Sweden, and The Netherlands. They reveal the decisive support from international frameworks and European Directives for the handling of access to social rights. However, it is evident that national politics is less interested in the provision of social rights for the officially declared "unwanted" group of migrants than local or city levels. It is the local/city level that is working towards basic provisions for non-deported people in order to ensure public order. The case studies show considerable differences in the regulations and practices for dealing with non-removed persons. These differences relate to policy areas such as health care, housing, basic education and social allowances. International obligations only regulate access to emergency medical care and schooling for children. Regulations on accommodation, medical services beyond emergency care and other social benefits vary widely because access to social rights depends on the welfare system in general and the migration regime. At the same time, we find similarities in the interests of the local and city levels. Since local or regional governments are more directly confronted with the social consequences of marginalization, such as impoverishment, homelessness or crime, they argue in favour of providing services. In contrast, national governments tend to focus on migration control aspects. Differences in the implementation of national regulations also stem from the way street-level bureaucrats use their discretionary power to decide, not least, along ideas of deservingness. In politics, the preferred way of dealing with the presence of rejected asylum seekers is focusing on the effectiveness of the return procedures. However, the political instrument of deportation is obstructed by a de-facto non-deportability. Against this real world fact, regularization of residence status is recommended in order to end the limbo situation which overshadows both the host society and the non-deported people.