2 Statehood, street-level bureaucracies and the welfare–migration nexus

Drawing from the seminal works of Weber (Reference Weber1921/1995) and Lipsky (1980/2010), social sciences scholars have been investigating street-level bureaucrats’ daily practices in various contexts. Some were interested in policy implementation and outcomes (Spire, Reference Spire2008; Dubois, Reference Dubois2010; Holm Vohnsen, Reference Holm2017), others in understanding governance and state-making ‘from below’ (Blundo and Olivier de Sardan, Reference Blundo and de Sardan JP2007; Bierschenk and Olivier de Sardan, Reference Bierschenk and de Sardan JP2014). Across these different contexts, authors insist on the discretion of street-level bureaucrats, the multilayered norms underlying public service provision and various forms of loyalties at stake (Miaz and Achermann, Reference Miaz and Achermann2021). This paper aims to further those debates by illuminating how civil servants can sometimes act against their own administration while still performing a public service, thereby unpacking their political subjectivities.

Mainly focused on policy outcomes, migration scholars recently argued that migrants’ restricted access to state services was partly due to the street-level practices of welfare bureaucrats (Infantino and Rea, Reference Infantino and Rea2012; Brodkin and Majmundar, Reference Brodkin and Majmundar2010; Eule et al., Reference Eule, Loher and Wyss2018; Reference Eule2019). In his study of the French immigration desks, Spire (Reference Spire2008) shows how frontline civil servants – those in direct contact with the users, commonly the first points of contact – often informally filter applications based on credibility, having internalised the idea that the French nation state should be protected against undeserving migrants. While still understudied, the bureaucratic handling of migrant applications seems to abide by similar logics. Gabarro (Reference Gabarro2012; Reference Gabarro2017) shows how civil servants assessing irregularised migrants’ requests for public health care are bound by instructions from above, compelling them to scrutinise requests and prioritise administrative aspects over relational ones. Ratzmann (Reference Ratzmann2021) argues that within the local job centres in Germany, those identified as foreigners are often seen as less deserving of welfare than German-born claimants. These studies, however, mainly focus on civil servants’ (discretionary) practices and interactions with users but rarely reflect on their relationship and engagement with the state – or what public service means to them. Rather than unpacking the effects of civil servants’ practices and discretion, this paper focuses instead on the intricate strategies that they use to reconcile conflicting norms and loyalties throughout the process of ‘making’ and assessing claims.

African studies scholars have, on the other hand, described the various logics underlying civil servants’ interactions with users to understand how they perform for the state on a daily basis (Bierschenk and Olivier de Sardan, Reference Bierschenk and de Sardan JP2014). Rather than studying the implementation of specific reforms, they focus on how street-level bureaucrats understand their role, deal with instructions from above (Verheul, Reference Verheul2013; Rubbers and Gallez, Reference Rubbers and Gallez2015), define professionalism (Andreetta and Kolloch, Reference Andreetta and Kolloch2018; Budniok, Reference Budniok, Berti, Good and Tarabout2015) and reflect on their (affective) relationship with the state (Lentz, Reference Lentz, Bierschenk and de Sardan JP2014; Laszckzkowski and Reeves, Reference Laszckzkowski and Reeves2018). They also show how despite the lack of equipment, personnel and sufficient salaries, civil servants are still committed to upholding a semblance of service as well as finding a series of practical and often informal arrangements to that end (Bierschenk, Reference Bierschenk, Bierschenk and de Sardan JP2014; Oumarou, Reference Oumarou, Bierschenk and de Sardan JP2014). The case of migrants’ social assistance claims, however, shows that practical arrangements to provide a service ‘nevertheless’ are not always extended to the margins of the state or outside of the official norms: in Belgium, welfare bureaucrats sometimes help to build migrants’ cases ‘against the state’, albeit from within the framework of official rules and procedures. Therefore, such arrangements are not only about helping users; they are also about engaging in a debate with the state, or more accurately, with the government and its most recent policies.

Still underexplored, how immigration – or immigration-adjacent – bureaucrats balance professional ethos and ethical commitments with instructions from above has been gaining scholarly attention (Borrelli and Lindberg, Reference Borrelli and Lindberg2018; Perna, Reference Perna2018; Reference Perna2019). Dealing with such contradictory injunctions often requires serious emotional and political work: civil servants work for and represent the state, yet they remain critical of its policies and often try to find ‘ways of coping’ (Borrelli and Lindberg, Reference Borrelli and Lindberg2018) that do not dehumanise applicants. In most European countries, welfare reforms – and the bureaucrats tasked with implementing them (Pfirter, Reference Pfirter2019; Borrelli et al., Reference Borrelli2021) – are increasingly aligned with the policies espousing migration control: civil servants are, therefore, confronted with the conflicting logics of both policy fields. In such a context, scholars point to social workers’ lack of ‘resistance’ (Humphries, Reference Humphries2004; Pfirter, Reference Pfirter2019), particularly when working for and within state institutions.

Against this backdrop, this paper unpacks how welfare bureaucrats try to find ways to help migrants despite or against recent administrative policies, guidelines and instructions. Analysing both their discourses and the practical daily work of assessing social assistance requests allows insights into their self-perceptions, definitions of professionalism and understandings of law and public services. Welfare workers’ strategies of resistance and subversion ‘from within’ illustrate the fragmented nature of the state (Bierschenk, Reference Bierschenk, Bierschenk and de Sardan JP2014) and the various, sometimes conflicting layers of norms that civil servants must navigate every day. In their dissent, they refer to welfare laws and international human rights guidelines, welfare institutions’ official missions and a shared ethics of care, which they assert stand in stark contrast to the administrative or policy guidelines and injunctions from above.

3 Governing social assistance: human dignity as a yardstick

The Belgian Constitution states that ‘everyone is entitled to live in conditions that conform to the standards of human dignity’ (Art. 23), which social assistance is supposed to help guarantee. It is delivered by two kinds of institutions: PSACs are the most important providers of social assistance – and disburse non-contributory benefits – to Belgian residents, while the Federal Agency for the Reception of Asylum Seekers mainly provides material assistance to asylum seekers. This section describes the legal and policy changes since the creation of public assistance at the beginning of the twentieth century in order to demonstrate how social protection for those with a precarious immigration status has become increasingly restricted, conditional and embedded into a complex institutional dynamic.

Initially called Commissions for Public Assistance (CPAs), local welfare administrations were created in 1925 to organise help for ‘the poor’ at the local level (Martens, Reference Martens, Bedoret and Gilson2019). Together with the creation of these commissions, the Belgian parliament passed the law on emergency medical assistance (EMA), the precise modalities of which were later defined in a royal decree (1965). From 1976 onwards, CPAs became PSACs and were tasked with providing both social assistance – that guarantees that people live in dignified conditions – and implementing a minimum income scheme accessible to Belgian citizens. Social assistance could take many shapes and forms: PSACs could, and still can, help people pay for health care and give away furniture or household appliances, milk or nappies for newborns. They could also provide financial assistance for non-Belgian nationals. The 1976 law on Public Social Assistance initially did not include specific provisions regarding those without regular immigration status. Thus, although they did not qualify for the minimum income scheme, they could receive social assistance in any shape or form, including but not limited to medical assistance. The 57th article of the law was modified for the first time in 1984 and aimed to limit social assistance for irregularised migrants to the bare survival minimum; however, it still allowed administrations to grant them the same benefits as Belgian citizens. In 1993, the same article was modified to limit social (financial) assistance for ‘illegal’ migrants to the necessary minimum to allow them to leave the country. In 1996, however, irregularised migrants’ right to social assistance was further limited to just emergency medical assistance (Andreetta, Reference Andreetta2019).

In practice, citizens and migrants who wish to benefit from social assistance – medical or otherwise – have to submit their request at the PSAC overseeing their municipality. Based on a social assessment conducted by a case-worker, the administration will then determine whether the applicant meets the legal criteria. Migrants will qualify for emergency medical assistance under certain conditions: if their stay on Belgian territory is considered ‘illegal’, they reside in the municipality that comes under the purview of the PSAC where they submitted their application and can demonstrate their inability to bear the costs of the medical intervention, the necessity of which must be attested by a medical certificate. Financial assistance, however, as laid out in the administrative guidelines, can only be granted to those legally staying in the country. Welfare offices rely on state funding for most of the benefits grants, and such funding is only allocated if their decisions are made in compliance with the administrative guidelines. As a consequence, welfare offices almost never diverge from them. On decisions that do not conform to the guidelines, the offices would have to fund the assistance grants independently – an eventuality most cannot afford. Based on the case-worker's report, which includes a summary of the applicants’ situation and a discussion of potential solutions depending on legal and administrative guidelines, a decision is made by the PSAC's council and notified by mail (Andreetta, Reference Andreetta2019). Since 2007, asylum seekers’ requests for assistance have been rejected – and asylum seekers are directed to contact the Federal Agency for the Reception of Asylum Seekers.Footnote ³

Following the adoption of a common European framework for asylum reception and determination, FEDASIL centres were created to provide material assistance – health care, food and accommodation – to those who submitted a request for international protection in Belgium. The 2007 ‘reception law’ (loi accueil), which was intended to integrate the European reception directive into the Belgian legal order, envisaged social assistance provision for asylum seekers in public centres, instead of the financial allowances previously distributed by welfare administrations. While all asylum seekers could be hosted within these centres initially, in 2009, the law was modified to allow the Agency to limit material assistance towards health care, social and legal support, thus excluding food and shelter for those filing their third or subsequent asylum request. In line with European directives on reception standards for applicants for international protection (2003, 2013), Member States were allowed to limit their assistance to avoid multiple asylum claims that had the sole purpose of benefiting from public assistance. Decisions to limit material assistance were supposed to be tailored to individual circumstances and potential vulnerabilities. If their application for international protection qualified for consideration – the first step in examining the evidence – the General Commissariat for Refugees and Stateless Persons – responsible for deciding on international protection requests – could welcome the applicants back into the state's reception network. In 2012, material assistance was further limited to first international protection requests, except for vulnerable migrants, whose specific situation had to be considered (Reception Directive 2013/33/EU; Reception Law, 12/01/2007).

In practice, after having introduced their application for asylum at the Aliens Office, migrants moved to the Agency's section of the building. They entered the first waiting room. Sitting behind a glass window, civil servants were calling out their names. They asked whether they needed a place to stay, whether they had relatives in the country and the age of their children, if they had any. This preliminary check was meant to help determine whether they would be granted public housing. If it was not their first asylum request, but only an ‘exception’ made solely for those identified as vulnerable, they could grant them access to a centre: ‘The rule is that we don't make any exceptions,’ Nadine explained to me as we took a break from summoning people to the window, ‘the network is full, we hardly have any space left, so they are extremely limited, and only our superior can make them [exceptions]’ (Fieldnotes, 2020). As neither national nor international guidelines provide a precise definition of ‘vulnerability’ in the context of asylum reception, FEDASIL workers rely on informal ‘operational norms’ transmitted during internal meetings with their superiors. During this research, exceptions were made for families with children aged under three months and pregnant women in their third trimester, among others. After the preliminary screening, applicants met with the medical staff for a health assessment and received the necessary vaccines before moving to the last part of the building, where they waited for the Agency's decision on their reception request. In many cases, FEDASIL employees had to hand out a limitation of material assistance decision: only those asking for asylum for the first time could be granted full material assistance, while others were only granted access to medical care. Asylum seekers usually spend most of the day inside as the last decisions of the day are usually handed out in the late afternoon, around 4.30 or 5 p.m.

Administrative decisions, issued by FEDASIL or the PSACs, can be challenged in welfare courts, where the initial decision can either be confirmed or modified: welfare administrations are therefore regularly required to provide social assistance, in the form of either accommodation, medical care or financial benefits (Andreetta, Reference Andreetta2019).

In a context and climate of increased suspicion against migrants, the legal and policy changes mentioned above illustrate that human rights safeguards are ‘soft’ and can easily be levelled down to minimum standards: for irregularised individuals and asylum seekers filing ulterior requests, the (social) right to ‘human dignity’ has gone from financial support to (conditional) access to public health care.

4 Working for the state: the (im)possibility to help

Welfare workers generally either study social work or apply for a job in welfare because they want to help others. Yet they often find the experience of ‘working for the state’ disappointing. This section delves into the constant tension between welfare bureaucrats’ professional ethos and the practical constraints of their daily work. They often find themselves in a double-bind situation (Bierschenk, Reference Bierschenk, Bierschenk and de Sardan JP2014). Their professional values and the official missions of the employing institution are at odds with the administrative constraints and instructions from above.

When asked about their job, most welfare bureaucrats immediately mention their poor working conditions, as Paul explains about his work at FEDASIL:

They complain about the lack of proper infrastructure and manpower, about their high workload and the increasing number of administrative tasks – like in many other public bureaucracies in this issue – which eventually prevent them from ‘doing any actual social work’.

In most urban PSACs, where social workers are responsible for over 100 cases each, they complain about being understaffed compared with the offices in smaller cities, where social workers have anywhere between thirty and fifty cases each. Forced to operate in a high workload environment, they often feel like they can barely listen to or help their ‘clients’, as illustrated by this vignette. In addition, supervisors complain about the difficulties they experience in providing even basic office equipment to their staff: ‘It took me 4 months to get a desk and a phone for Vanessa, our newest recruit,’ Mireille, a fifty-seven-year-old local office supervisor tells me as she walks me through the premises. Social workers confirm having to work in worn-out buildings, using outdated computers. But most of all, they feel like their job has mostly been reduced to paperwork and ensuring that the said paperwork meets the formal legal requirements. As Francine, a fifty-year-old social worker, explains: ‘We are not asked to do social work anymore. We ask people to tie up a case, administratively speaking, so that we do not loose in court’ (Interview, 2019).

Retired agents highlight that working for the welfare administration in big cities has always meant dealing with a lot of cases; however, experienced workers also notice that the number of administrative tasks has drastically increased over the last few years. ‘Unfortunately, we have to be focused on a huge amount of work, behind a desk, while we could do a lot more on the field,’ explains Anya (Interview, 2019), who has been working in welfare for ten years. Over the same time period, the number of welfare recipients has indeed drastically increased: 147,676 received the minimum income scheme in 2011; in 2019, the number of beneficiaries reached 208,058.Footnote ⁴

Tensions within FEDASIL also revolve around the lack of resources, although in a slightly different manner: rather than the lack of time and the number of administrative tasks, workers complain about the lack of space to accommodate asylum seekers, forcing them to limit the number of applicants, as Nadine explains, illustrating the tensions at the core of her daily work at the Agency:

Frontline bureaucrats (Evans, Reference Evans2010) therefore do their best to navigate the tensions between operational norms and material constraints on the one hand and fundamental rights and values on the other. Many workers I met insisted on their commitment not only to enforce the rules ‘as humanely as possible’Footnote ⁵ but also to welcoming asylum seekers into the country. They saw that as the core of the Agency's official mission – even if that sometimes meant they had to bend or circumvent instructions from above. Frontline workers insist on their commitment to interact and explain matters with kindness, even when giving out disappointing news, informing asylum seekers of the possibility of challenging the Agency's decision in court or trying to convince their supervisor that an exception is necessary and forms a part of that scheme. However, when Lisette and Nadine started working for the Agency, no one was excluded from reception centres. Both, therefore, perceive their job as having gone from welcoming asylum seekers to ‘throwing them out’, as the following quote illustrates: ‘Social work used to be about helping people, whereas now, it is mainly about enforcing political decisions. It has become harder and harder to do social work, and throwing people out … I can't anymore’ (Lisette, June 2019).

Lisette's disappointment illustrates the welfare workers’ difficulties in interpreting the implications of and enforcing political shifts (see also Saglam, in this issue). That is particularly striking in the case of frontline bureaucrats such as those working for the Agency. Because requests are processed through a computer-based system in which ‘exceptions’, necessitating human interventions, are rare, discretion is limited. Their role mainly consists of delivering template decisions, allowing the institution to process over 100 requests per day. However, social workers within the PSAC conduct enquiries, write social reports and formulate recommendations for cases for which they are individually responsible.

Analysing the street-level implementation of restrictive welfare policies in Netherlands, Van der Leun (Reference Van der Leun, Guiraudon and Lahav2006) argues that trained professionals such as doctors or teachers oppose resistance against those policies more than their non-professional counterparts. In his study of discretion in welfare in the UK, Evans (Reference Evans2011) highlights the importance of professionalism among social workers, justifying less control from their managers, at the same time, potentially allowing more resistance against certain internal guidelines or policies. The contrasted experiences of Belgian welfare workers further illustrate that trained professionals are given greater discretion to perform their tasks, but it also gives nuance to the aforementioned theories by demonstrating that all Belgian welfare workers share a professional ethos and a commitment to care, regardless of their professional background or education. Civil servants in both kinds of institutions insist on the difficult affective work and the increased professional frustrations that recent policies and instructions from above generate. Most of them went into the profession with a commitment to provide care, which is rendered almost impossible within the time and resources that the institution allows them to use. They often describe welfare administrations as their least-preferred workplace: practically every social worker I met aspired to work for civil society organisations where they felt that they would do ‘real social work’ and ‘change things’. They saw the administration as a temporary step in their career – one that many then never left because of the financial security it provided. Welfare workers’ will to help also contrasts with previous ethnographic studies of (immigration) bureaucrats (Spire, Reference Spire2008; Eule et al., Reference Eule, Loher and Wyss2018), which underline how street-level practices often restrict migrants’ access to certain services.

5 Failing to perform public services

Like many of her co-workers, Anouc applied to the Agency wanting to help and truly welcome asylum seekers into the country. She quickly became disillusioned. Anouc's example shows that street-level bureaucrats’ ways of coping with their frustrations involve small acts of resistance against the state or, more accurately, against the state secretary in charge of asylum and migration (see also Lentz, Reference Lentz, Bierschenk and de Sardan JP2014). They purposely fail to ‘perform the state’: either they refuse to wear the uniform or invest time and energy into justifying why certain services/tasks are impossible to fulfil. In so doing, street-level bureaucrats are starting a conversation, attempting to influence policies indirectly by demonstrating the unenforceability of the current ones.

Referring to the 2011 ‘asylum crisis’, Nadine explains:

At the time, the Agency ended up denying housing to hundreds of asylum seekers, which they were regularly ordered to do by labour courts: the Agency received fines for each day that asylum seekers were not hosted. ‘For some of us there is a bigger, ideological stake. Some people think we should demonstrate the absurdity of the rule,’ Isabelle explains on the exact same issue. Welfare bureaucrats, therefore, end up combining different registers in their daily tasks: they try to combine administrative, operational and financial constraints, with an ideological commitment to helping and providing a good service, but sometimes despite or against state regulations and policies.

Previous works have already highlighted the absurdity of bureaucracies, the inconsistencies in the policies they are tasked to enforce, the impractical, sometimes even counterproductive or outdated norms and procedures that street-level bureaucrats have to deal with (Holm Vohnsen, Reference Holm2017; Bierschenk, Reference Bierschenk2008; Reference Bierschenk, Bierschenk and de Sardan JP2014; Oumarou, Reference Oumarou, Bierschenk and de Sardan JP2014). These scholars analyse civil servants’ daily strategies to ‘make do’ with these norms, the lack of means and workforce. They describe how bureaucrats perform the state ‘nevertheless’, but do not specifically address how they sometimes do more than influence implementation at the street level (Holm Vohnsen, Reference Holm2017; Oumarou, Reference Oumarou, Bierschenk and de Sardan JP2014). The example of FEDASIL workers purposely failing the state shows that civil servants also try to achieve policy change from the bottom up (Vetters, Reference Vetters2019), by demonstrating the inefficiency of certain norms and forcing ‘the state’ – in this case, enacted by the government and the relevant state secretary – to change its own rules to avoid financial sanctions.

6 Writing against internal guidelines

As in many other bureaucracies (Hull, Reference Hull2012; Mathur, Reference Mathur2016), welfare workers spend a substantial part of their time writing documents – some to be read by users and others for internal use. Current scholarship analyses how migrants navigate the paperwork requirements of receiving states (Tuckett, Reference Tuckett2018; Alpes, Reference Alpes2017), highlighting how documents are scrutinised, their credibility assessed or questioned (Spire, Reference Spire2008; Nakueira, Reference Nakueira2019). This section builds on these views to reflect on how social reports, essentially artefacts of the state (Das and Poole, Reference Das, Poole, Das and Poole2004), can be used for subversion and internal contestation against certain administrative practices (Andreetta, Reference Andreetta2019), as the following case illustrates.

Melissa, a thirty-two-year-old social worker, deals mainly with irregularised migrants. She tells me about a case that marked the beginning of her career as I shadowed her throughout the day:

Within PSACs, social workers write reports summarising the situation of every potential or current beneficiary. These reports include a description of the applicant's administrative, financial and personal situation, as well as a recommendation on whether assistance – either medical, material or financial – should be granted. Based on the administrative guidelines and the report content, the board of representatives within each welfare office makes their final decision, which is mailed to the applicants (Andreetta, Reference Andreetta2019). In the above case, the family received an official letter intimating them that EMA had been granted but not financial assistance.

Even if the social workers’ reports may underscore the precarious living conditions of the migrants, final decisions do not always correspond to the facts and recommendations contained therein, especially when it comes to irregularised migrants. Since welfare offices’ public funding depends on how well they respect these guidelines, and additional assistance must be granted on their own funds – which are very limited – PSACs virtually never grant financial aid to irregularised residents. Welfare courts, however, are not bound by these guidelines and can order welfare administrations to grant assistance even to those who normally do not qualify – PSACs would then receive state funding to enforce them. For that reason, case-workers sometimes write reports in favour of the user, which they know will eventually be part of the evidence in the welfare court and might help migrants win (Andreetta, Reference Andreetta2019). Such strategies of report writing against the administrative guidelines contrast with the observations of Miaz and Achermann (Reference Miaz and Achermann2021) on Swiss detention centres, where bureaucrats adapt their decision practices to avoid judicial sanctions. Moreover, within the Belgian PSAC, some social workers purposely try to cause their own administration to lose in court – notably often with their superiors’ approval. Rather than putting local welfare offices at risk, such tactics allow them to eventually grant financial assistance to irregularised migrants while still being subsidised by national authorities.

Within the discretionary space that administrative practices and paperwork allow, social workers use legal and formal ways to help migrants despite or against the administrative guidelines (Andreetta, Reference Andreetta2019). They do so while referring to the fundamental rights that social assistance laws are meant to protect and to their ethical commitments as social workers, which they consider to be more important than administrative guidelines or specific government policies. As Francine stated: ‘My job is to help people. Not to help my employer save money’ (Interview, 2018). They, however, do so in cases in which they feel like applicants ‘really need’ assistance: employees whose cases repeatedly end up being contested in labour courts would potentially jeopardise their jobs.

Not all social workers, however, are willing to risk going against their employer or arguing in favour of the user in their report. Young social workers on temporary contracts rarely feel secure enough to use such strategies. Some, like Anya, also fear getting into trouble with their supervisors, despite holding a relatively secure position: ‘I know some of my colleagues do it, but as far as I am concerned, it is not in my personality. If I am told I cannot do something, I respect that,’ she explains (Interview, 2018). Others were more concerned with spending public money on those for whom it was actually intended, and therefore found their actions to be in compliance with the administrative guidelines. The aforementioned quotes show that welfare bureaucrats’ loyalties are, in part, generationally driven. Within PSACs, older generations still hold onto the idea of ‘helping’. In contrast, younger social workers seem to have integrated the logic of the most recent reforms, according to which, increasingly, assistance is conditional upon proving ‘deservingness’. A similar logic applies to FEDASIL: the more experienced workers remember a time when the Agency hosted every single applicant, when their job consisted of helping – while for younger recruits, the main task often entails denying housing to certain categories of asylum seekers.

Welfare bureaucrats can also decide to leave out certain pieces of information, which they know could harm or complicate migrants’ cases. For example, when assessing requests for EMA, social workers regularly overlook people's small, informal income revenue: ‘The fact that they work informally is a public secret,’ Francine explains, ‘who believes that you can survive just on love and freshwater? There are some basic needs, such as food, that people need that money for. It does not mean they can pay for healthcare!’ Within FEDASIL, Mehdi explains that most electric appliances are forbidden in residents’ rooms due to internal health and safety regulations. Infringements on such regulations must be reported; however, social workers regularly give people a verbal warning instead:

Mehdi seems happy with his solution ‘not to report’ small offences like these – although he still acknowledges that the food from the restaurant is not always suited for children.

While current insights into street-level bureaucracies mainly insist on discretion at the front desk and within interactions between civil servants and users, the case of welfare bureaucrats illuminates how discretion plays out, for instance, in the way documents are written, shared or sometimes omitted. It shows that social workers regularly use these documents to help migrants access certain services – in a context in which paperwork is often portrayed as a tool for the selection and rejection by migration regimes (Eule et al., Reference Eule, Loher and Wyss2018). Civil servants are also using state laws and courts against administrative guidelines and state bureaucracies, forcing the state – specifically welfare institutions – to respect their own rules and guarantee human dignity to all residents. This eventually exemplifies the various, and sometimes conflicting loyalties, to state laws and the fundamental values they aim to protect, to the institution and their official goals, rather than specific governments and their policies (see also Lentz, Reference Lentz, Bierschenk and de Sardan JP2014), among those ‘making’ statehood on a daily basis.

7 Encouraging litigation

PSACs are not the only welfare institution encouraging migrants to take them to court: this section will show how social assistance claims have become increasingly judicialised ‘from below’ as a result of civil servants regularly recommending litigation against their own administration. Recent contributions have indeed insisted on the growing role of courts ‘in the making of public policies on the one hand, and in democratic life in general on the other hand’Footnote ⁶ (Commaille and Dumoulin, Reference Commaille and Dumoulin2009, p. 79). While these scholars analyse the role of higher courts in the electoral and the law-making processes (Shapiro and Sweet, Reference Shapiro and Sweet2002; Hirshl, Reference Hirshl2008; Reference Hirshl and Goodin2011), this section will explore how social assistance cases become judicialised in French-speaking Belgium. It will delve into welfare bureaucrats’ relationship with law and how they use litigation as a strategy to counteract specific policy guidelines.

When informing the applicant about a decision of material assistance limitation, FEDASIL personnel try to discuss potential alternatives with them: they tell them about homeless shelters and NGOs or hand out a list of pro-bono lawyers prepared to help them challenge the Agency's decision in court – as illustrated by the opening vignette. Paul's last comment shows the conflicting loyalties that civil servants are faced with – ‘I cannot explicitly tell them to sue us, because that would be disloyal to my employer, but I often wish they would.’ The ideals they associate with welfare institutions clash with the administrative guidelines they are tasked with enforcing. As they see it, a part of their job is to come up with ways to reconcile what seems irreconcilable to them. For instance, while they enforce the administrative guidelines in their decisions to limit or deny social assistance, they use face-to-face interaction with migrants and the discretionary space that it affords for consultation – sometimes with advice to proceed against their own institution.

What also becomes evident is that Belgian welfare bureaucracies partly rely on private actors, for instance, shelters, NGOs and lawyers, to deliver collective services. Similar dynamics have been analysed in other contexts (Titeca and Flynn, Reference Titeca and Flynn2014; Rubbers, Reference Rubbers2007), highlighting frequent overlaps between the public and the private, the formal and informal sectors. As already mentioned, private actors are frequently brought in to add to and complement the welfare services provided by the state; however, civil servants have also taken to sending migrants to private agencies to assist them with challenging the negative decisions of government agencies in court. This dynamic is explained by Véronique:

Nadine confirms: ‘When lawyers call for a 2d asylum request case, I tell them to take FEDASIL to court, so that we can help [host] their clients’ (Fieldnotes, June 2019).

These examples illustrate the embeddedness of both state and non-state actors (Titeca and Flynn, Reference Titeca and Flynn2014; Rubbers, Reference Rubbers2007) and the critical engagement of private actors occasionally called in to perform statehood with certain state policies and institutions. For example, lawyers and legal-aid NGOs, who rely on state authorities to be recognised and accredited, go on to challenge administrative decisions in courts in an attempt to change what they consider unfair bureaucratic guidelines or practices.

As these quotes illustrate, welfare bureaucrats advocate and encourage litigation as a way to allow migrants to circumvent administrative guidelines using the official tools and procedures at their disposal to counter the very policies that they are asked to enforce. It also shows that ‘the state’ cannot be viewed as a cohesive entity with a unanimous voice: it is, instead, a constellation of institutions and workers within these institutions with different interpretations of what the official norms mean and how they should be enforced (Holm Vohnsen, Reference Holm2017). The strategies used by civil servants to correct or counteract policies they deem unfair or potentially infringing on users’ fundamental rights, in part, also include reliance on private actors. That is one purpose for which public services can be externalised (Bierschenk, Reference Bierschenk, Bierschenk and de Sardan JP2014) or co-produced (Titeca and Flynn, Reference Titeca and Flynn2014).