A risk approach to government perceptions of irregular migrants and asylum seekers in the legal and policy frameworks of Australia and the United Kingdom

People with an irregular migration status and asylum seekers have become issues of substantial public policy concern for the governments of Australia and the United Kingdom. This research seeks to understand how this concern has been expressed by these governments through the concept of “risk”. It explores the multiple ways risk is constructed and is used by government to frame irregular migration and asylum seeking and influence applicable legal and policy frameworks. The current public and political debates about irregular migration and asylum seeking is within this research, recast as debate about risk and risk acceptability within Australian and British societies. Crucially, it has been the influence and effect of the outcomes from these risk debates that has significantly altered the applicable frameworks and rights position of irregular migrants and asylum seekers.

This thesis presents new observations about these consequences and the reorientation of applicable frameworks in the wake of these risk debates. In some instances, the frameworks have been altered to transfer risk from the state to the individual resident or irregular migrant and asylum seeker to negotiate and manage. In other cases, governments have transferred risk responsibility for managing or resolving irregular migration and asylum seeking to outside their jurisdiction. In either circumstance such practices have created new levels of irresponsibility regarding irregular migration and asylum seeking where risks are deflected to other times and places. Perhaps the most concerning consequence found here, has been the transformation of government from risk manager to harmful risk producer. For irregular migrants and asylum seekers particularly, subjected to measures purported to manage the risk they are perceived to manifest, in-fact legitimise the production of physical and legal harms for them.

Using Australia and the United Kingdom as its case study jurisdictions, this thesis explores how their governments have served as central actors in this predicament. The central question of the thesis asks:

How do government risk perceptions of irregular migration, asylum seeking and people with an irregular migration status and asylum seekers affect relevant legal and policy frameworks in Australia and the United Kingdom?

The examination of the relevant laws and policies implemented from 2001 to 2022 by these governments is conducted through a new theoretical framework that is drawn from approaches to risk developed by Ulrich Beck and Mary Douglas. Using risk theoryin the examination of government perceptions of irregular migrants and asylum seekers makes a new contribution to existing literature by critically engaging with how these risk perceptions influence applicable law and policies and the consequential physical and legal outcomes for society and irregular migrants and asylum seeker alike.

The analysis is given deeper insight through a series of elite interviews conducted with civil servants that have developed and implemented these laws and policies. Lawyers from both jurisdictions that have advocated for people with an irregular migration or asylum status as they navigated their way through the migration frameworks were also interviewed.

The thesis is structured around three thematic perceived risks that have become prevalent concerns for government when addressing irregular migration and asylum seeking: security risk, economic risk, and social risk. They are followed by a chapter that examines the consequences of the steps taken to mitigate these three risk types that irregular migrants or asylum seekers are said to pose to Australia and the United Kingdom. Publicly, governments had hoped reassert control while allowing and promoting desired cross-border movements. It is argued in the thesis that because of these steps to mitigate risk, security, economic, and social controls have turned applicable frameworks into risk filtering regimes designed to separate the “risky” from “non-risky”. Meanwhile, the very attempt to control the “risky” migrant or asylum seeker has created a new set of problems reinforcing perceptions that migration and asylum is out-of-control and challenges the previous purported claims of governmental adherence to human rights and liberal standards.