The Exclusion of (Failed) Asylum Seekers from Housing and Home: Towards an Oppositional Discourse

AuthorJames A. Sweeney,Lorna Fox O'Mahony
DOIhttp://doi.org/10.1111/j.1467-6478.2010.00505.x
Publication Date01 Jun 2010
JOURNAL OF LAW AND SOCIETY
VOLUME 37, NUMBER 2, JUNE 2010
ISSN: 0263-323X, pp. 285±314
The Exclusion of (Failed) Asylum Seekers from Housing and
Home: Towards an Oppositional Discourse
Lorna Fox O'Mahony* and James A. Sweeney*
`Housing' ± the practical provision of a roof over one's head ± is
experienced by users as `home' ± broadly described as housing plus
the experiential elements of dwelling. Conversely, being without
housing, commonly described as `homelessness', is experienced not
only as an absence of shelter but in the philosophical sense of `onto-
logical homelessness' and alienation from the conditions for well-
being. For asylum seekers, these experiences are deliberately and
explicitly excluded from official law and policy discourses. This article
demonstrates how law and policy is propelled by an `official discourse'
based on the denial of housing and the avoidance of `home'
attachments, which effectively keeps the asylum seeker in a state of
ontological homelessness and alienation. We reflect on this exclusion
and consider how a new `oppositional discourse' of housing and home
± taking these considerations into account ± might impact on the
balancing exercise inherent to laws and policies concerning asylum
seekers.
INTRODUCTION
The reality of the human experience is that `housing' ± however it is defined
and whether it is, as a question of fact, more or less satisfactory ± is
experienced by users as `home'. While `housing' usually connotes the
practical provision of a roof over one's head, `home' can be broadly
described as housing plus the experiential elements of home ± as a valued
territory, as signifier and constituent of self- and social-identity, and as a
285
ß2010 The Author. Journal Compilation ß2010 Cardiff University Law School. Published by Blackwell Publishing Ltd,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*Durham Law School, 50 North Bailey, Durham DH1 3ET, England
lorna.fox@durham.ac.uk j.a.sweeney@durham.ac.uk
We are grateful to the Institute of Advanced Study at Durham University, whose generous
support facilitated the research project on which this article is based, and to David
O'Mahony who provided helpful comments on an earlier draft.
social and cultural environment that is appropriate for the user's needs and
way of life, for example, suitable for family life, and providing an oppor-
tunity to participate in a community/society.
1
Consequently, the condition of
being without housing, commonly described as `homelessness' is experi-
enced not only as the absence of shelter (houselessness) but as alienation,
both in the philosophical sense of ontological homelessness
2
and alienation
from the conditions for well-being (homelessness).
3
This article focuses on
(failed) asylum seekers ± that is, those who are awaiting determination of
their claim for asylum and those whose claims have been refused but who
have not yet left the United Kingdom ± whom we describe as `doubly
displaced', at the state level and, often, at the level of dwelling-place:
displaced from their home state and dispossessed from their homes within
that state, and prevented from re-establishing their sense of place in the host
state, including ± in light of their precarious claim on housing ± being unable
to secure the use of a dwelling which they can establish as a home. Starting
from the (failed) asylum seeker's human experience of `double displace-
ment', we consider legal and policy responses to the housing of asylum
seekers, to reflect on the exclusion of considerations of housing and home
from policy debates and legal analyses concerning asylum seekers.
In doing so, we draw upon the recent emergence of `home' as a subject of
legal analysis,
4
and particularly on the proposition that the occupied home is
a distinct type of property, based on its central role in our lived experiences
as humans.
5
A key feature of our approach is our emphasis on the displaced
or dispossessed human person who is the subject of the discussion. Our
analysis is consciously shaped through the lens of the human experience of
double displacement, rather than being framed by the current regulatory
framework: that is, our analysis starts from the person, rather than the law.
Since the human experience of double displacement is not mitigated or
exacerbated by legal changes in a person's immigration status, our analysis
286
1Onhome as `house + x' and the elements of the `xfactor' interest, see L. Fox,
Conceptualising Home: Theories, Laws and Policies (2006) especially ch. 4.
2 Giddens described `ontological security' as `a person's fundamental sense of safety
in the world and includes a basic trust of other people. Obtaining such trust becomes
necessary in order for a person to maintain a sense of psychological well-being and
avoid existential anxiety': A. Giddens, Modernity and Self-identity: Self and Society
in the Late Modern Age (1991) 38±9.
3Onthe distinctions between `houselessness' and `homelessness', see P. Somerville,
`Homelessness and the Meaning of Home: Rooflessness or Rootlessness?' (1992) 16
International J. of Urban and Regional Research 529.
4 See, for example, Fox, op. cit., n. 1; D.B. Barros, `Home as a Legal Concept' (2006)
46 Santa Clara Law Rev. 255; M.J. Ballard, `Legal Protections for Home Dwellers:
Caulking the Cracks to Preserve Occupancy' (2006) 56 Syracuse Law Rev. 277.
5 The legal concept of home is built on empirical studies and theoretical analyses of
the lived experience of home, the meanings which home represents for occupiers,
and the experience of losing one's home; see, generally, Fox, op. cit., n. 1, especially
ch. 4.
ß2010 The Author. Journal Compilation ß2010 Cardiff University Law School

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