I Introduction
The digitalization of asylum procedures in Europe is nothing new. Digital technologies are, however, assigned an increasingly important role in mediating communication as well as producing and assessing the evidence for asylum claims – two foundational aspects of refugee status determination. These technologies include automation in case management systems, biometric identification, speech recognition, mobile forensics and so forth (see Ozkul 2023). Meanwhile, the EU’s asylum policies and laws have undergone significant changes under the New Pact on Migration and Asylum and have attracted criticism for their ‘half-hearted commitment’ to human rights (Thym 2023). Further use of technology is legitimized through the pact, as technology represents an important means for furthering the political interests of efficiency and security.
This begs the question of how digital technology impacts European asylum law. In my doctoral dissertation, Techno-legal modalities in asylum law: a study on epistemic vulnerabilities (available open access), I examine this matter. More specifically I investigate how digital technologies produce epistemic vulnerabilities in EU asylum law and its procedures. In this blog post, I summarize the main findings of my doctoral research.
II Streamlining and its consequences
Instead of focusing on specific technologies or technological features, the dissertation aims to capture the broader landscape of digital technologies in asylum law and practices. The three articles that comprise the dissertation explore different intersections of technology and asylum law: the EU’s Screening Regulation, sociotechnical practices in the Finnish asylum procedure, and augmented asylum decision-making.
I argue that the relationship between asylum law and technology is complex, as it is dynamically dependent on material, situational, individual and organizational elements and practices. However, by seeking commonalities between the different intersections of asylum law (EU migration law, sociotechnical practices and augmented asylum decision-making), I identify streamlining as an overarching techno-legal modality in contemporary EU asylum law. Streamlining as a modality stems from procedural socio-technical choices and techno-legal frameworks. That is, by streamlining, I refer not only to the streamlining of data but also to the way the procedure unfolds both technologically, socially and legally.
Streamlining creates boundaries to the interaction that occurs between different actors and to the legal, organizational, and technological systems; hence it affects sense-making. As I argue in my dissertation, technological developments in asylum law impact the substantial assessment of asylum claims. Technology does not exist solely to perform ‘simple’ procedural tasks. As such, the techno-legal modality of streamlining demonstrates that technology must be accounted for as an important element of knowledge production. I argue that the techno-legal modality of streamlining produces epistemic vulnerabilities. Put simply, EU asylum law and sociotechnical practices in asylum procedures risk decreasing the quality of asylum decision-making.
While I have used vulnerability as a heuristic lens to examine the interplay between law and technology in the context of asylum law, I also take a critical look at how vulnerability as a concept is used in asylum law and technology regulation and sociotechnical practices. What I find interesting is that technology regulation, particularly the EU’s AI Act, and sociotechnical practices in Finnish asylum procedure, reflect a group-based understanding of vulnerability, i.e. the separation of ‘vulnerable’ and ‘non-vulnerable’ asylum seekers. This categorization then leads to different procedural paths for different applicants. With the Screening Regulation in force, this categorization carries increasing weight for the rest of the procedure, as it occurs at the very early stages of an asylum seeker’s application for international protection. Even though one can notice an acknowledgement of structural and situational vulnerabilities in contemporary EU procedural asylum law, the Screening Regulation does not account for a nuanced understanding of vulnerability. On the contrary, it introduces new types of procedural vulnerabilities to asylum law. These developments are a continuation of the ambivalence of European asylum policy. More specifically, as Moreno-Lax and Vavoula (2024) point out, migration law both produces vulnerabilities and offers protection against vulnerable circumstances.
Lastly, in the dissertation, I argue that the nature of EU asylum law as we have traditionally known it is changing. An important characteristic of European asylum law – individual assessment – is being undermined due to techno-legal streamlining.
III Discussion & Conclusion
While previous research on European asylum law and technology has largely focused on data practices and specific technological systems or features (see, for example, Molnar 2019, Vavoula 2021, Stewart 2024), my dissertation contributes to research on the more structural implications of digital technologies at large. In times when many law and technology studies concentrate on AI systems and certain technologies, the dissertation indeed calls for an increasing focus on the structural implications of technology in administrative procedures. In terms of research on technologies and vulnerability production in particular, scholars of law and technology, I believe, must extend their gaze beyond that of the vulnerabilities related to certain data subjects or users of technologies or the use of specific technologies. This is especially important in the context of digital administration, where the power asymmetry between the state and the ‘citizen’ is stark, and often much is at stake. The dissertation, particularly the article on Finnish asylum procedure, points to the importance of investigating how sociotechnical practices produce vulnerability when public administration is increasingly digitalized. Further, examining the structural implications of technology helps us consider the multitude of technologies – both those technologies which we consider mundane and advanced – and how they are used by people.
Finally, the dissertation, I believe, shows rather well how by examining technology we can learn about law itself – be that its underlying conceptualizations or law’s implications in practice. Hopefully, the new Digital Corner of the REALaw blog will not only enlighten its readers about the digital aspects of administrative law, but also provide insights into the fundamental tenets of law and administration.
Post by: Frida Alizadeh Westerling, LL.D, is a post-doctoral researcher at the University of Helsinki. She is a member of the research projects DARE (Digital administration redesigned for everyone) & Trust-M (Creating trustworthy and inclusive digital public services for migrants), and affiliated with the Legal Tech Lab at University of Helsinki.