The multiscalar variance of asylum at the border: the ‘manifestly unfounded’ filter in Europe as a centrifugal and interactional implementation story, 1985-2005

This paper addresses the recent history of border asylum procedures in Europe and the sociolegal issues surrounding the implementation of norms in that context and their variation across time and space. Building on the author’s experience as both a French asylum judge (2010-2014) and a migration historian, it engages with a particular legal standard that gained traction as a filtering tool in the late 1980s: the “manifestly unfounded” character of asylum claims. This notion and its equivalents, like the “credible fear” test in US law, are pivotal to the restrictive turn taken by the Global North in refugee status determination, and must be understood within more general efforts to both fast-track and toughen screening procedures (Kerwin, 2015; Thielemann and Hobolth, 2016; FitzGerald, 2019). Examining how it has been translated into operable mechanisms across Europe reveals a constant tension between normative convergences on the one hand, and implementation divergences on the other, in both time and space. This paper argues that those discrepancies are due as much to institutional conditions as to the agency of the border asylum’s stakeholders, including would-be refugees themselves. As it offers a preliminary genealogical account of this evolution based on archival work and critical analysis, this paper not only contends that the observation of socio-legal practices calls for re-assessing the boundaries of migrant citizenship beneath and beyond the nation-state. It also claims that such ‘phylogenetic’ analysis of refugee legal realities at various scales can help norm producers better protect rights in the first place.