Contributors & Table of Contents

(Click HERE for project timeline and event schedule.)

Part I. Introduction

Why Study Immigration Law Comparatively?
Kevin Cope (University of Virginia, USA)
Stella Burch Elias (University of Iowa, USA)
Jill Goldenziel (Marine Corps University, USA)

Part II. Theoretical & Conceptual Frameworks

The Logic and Legitimacy of Immigration Law
Tendayi Bloom (University of Birmingham, UK)
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This chapter invites reflection on the underlying logic and legitimacy of immigration law. It asks what are the purposes of immigration law and what is the legitimacy for these purposes. To do this, it examines two main dimensions found in the body of law and policy referred to as ‘immigration law’. The chapter begins by considering these two dimensions separately, looking in turn at the mechanisms used in each dimension to assess eligibility for border-crossing. It then suggests legitimacy problems that arise when these two dimensions are taken together.

The first dimension governs the conditions under which a person may access a State’s internal systems; it determines whether someone may cross the borders around a State’s labour market, political institutions, education and social protection, for example. This can affect people irrespective of whether they have ever crossed a territorial border. This first part of the chapter will provide an analysis of mechanisms set out in States’ immigration law for establishing eligibility. Existing mechanisms largely rely on certain forms of State-issued documentation in order to identify people as eligible or ineligible for access to that State’s internal community. These mechanisms can exclude people who lack citizenship in their home countries, including those without any recognised citizenship: people often referred to as ‘stateless’. They seem to use perceived ‘foreignness’ as a way to identify who is an excludable migrant. This suggests that this dimension of immigration law, even when it does affect border crossers, may be affecting them not insofar as they are border-crossers, but insofar as they are perceived to be foreign.  

The second dimension governs the crossing of a State’s external borders: the borders around its territory(ies). This is directed explicitly at people who are in the act of crossing a State’s external territorial borders. However, not all border-crossers are confronted by this body of law. In practice, special relationships between States, visa exemptions, discrimination in visa processing, financial and professional criteria, and other factors, mean that arbitrary aspects of a person – relating for example to their birth, their income, their race – can alter the ways in which they are governed at territorial borders. This second part of the chapter examines these factors both separately and as a whole. Examining how these factors accumulate on a global level indicates that what is salient in this second dimension of immigration law is not whether or not a person is moving, nor the conditions under which they are moving. Instead, what is salient is whether or not they are believed to be eligible for membership of the international system of mobility. In this way, there is a continuity between the two dimensions presented here. 

The final part of this chapter will bring these two dimensions together. This chapter will end by testing immigration law, as currently framed, against the legitimacy conditions identified at its opening.

Immigrants as Economic Actors
Alexander Betts (University of Oxford, UK)
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(to come)

Immigration Law as Foreign Relations
Kevin Cope (University of Virginia, USA)
David Leblang (University of Virginia, USA)
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Most legal scholarship sees non-immigrant visas as a device for screening individuals seeking short-term or medium-term stays in a host country. For over a century, however, states have been using visa policies to discriminate among visitors on the basis of nationality (e.g., Torpey 1998). To make a short-term trip to a particular destination, visitors from some origin countries must first complete a lengthy application, provide medical records, travel to an interview at the destination state’s local consulate, and pay the equivalent of hundreds of U.S. dollars. Visitors from other origin countries need only show up at an immigration checkpoint with a valid passport. Why and how do states make this distinction?

There are several possibilities. One obvious explanation – which we might term the protection model – is that destinations perceive a greater risk from some nationals—of overstaying, of competing for employment or national resources, of committing violence, of carrying disease, or of otherwise creating discord—than from others. States therefore perform time- and resource-intensive screening of those suspect potential visitors. Another explanation – the deterrent model – suggests that states concerned about undesirable visitors may use a visa like a “sin tax,” making the process sufficiently difficult that some would-be visitors go elsewhere or stay home. A third possibility – the revenue model – says that states use the visa fee principally as a revenue-raising tariff, basing it on citizens’ anticipated demand and willingness to pay.

Yet another explanation – potentially complementary to the others – has nothing to do with perceived harm or expected revenue: destinations use state-based visa requirements as a tool of  foreign relations. For states that are attractive destinations for business or leisure, state visa policies decide whether to burden visitors from any given country with millions of dollars of expense and countless hours of time and hassle. As with other foreign policy instruments like trade barriers, monetary policy, or intelligence cooperation, the threat of imposition serves to deter other states from adverse measures (in kind or unrelated), to retaliate for those already taken, or as a bargaining chip. They may also sometimes be part of a two-level game, in which leaders attempt to signal toughness to their key constituencies for foreign states’ real, perceived, or anticipated slights.

Using dyadic data and qualitative vignettes, this chapter illustrates how states use visas as a tool of foreign relations. We hope this model will spur further research into how and why states use visas as foreign relations, drawing perhaps on research designs used to study states’ use of other foreign policy tools, such as use-of-force, trade, and monetary policy.

Immigration Law as Domestic Law Enforcement
Juliet Stumpf (Lewis and Clark Law School, USA)
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Immigration law presents itself as a matter of foreign policy, regulating who crosses international borders and how they enter or leave. Yet at heart, immigration law operates as a form of domestic law enforcement. Border control systems are transformed into interior enforcement, and traditional domestic law enforcement systems incorporate interior immigration controls. Immigration law operates as domestic law enforcement through the transnational expansion of crimmigration: by transforming national security and foreign policy concerns into the everyday regulation of domestic criminal law. This chapter will trace the numerous ways in which this transformation occurs, and explore its consequences. It will highlight how the blurring of traditional lines between migration regulation and criminal law systems facilitates the social control of racialized and subordinated populations. The transformation of immigration law into domestic law enforcement also enables global north countries to impose physical and social control over the movement of people in the global south.

Open Chapter

Immigration Control as Racial Control: A Consistent Global Phenomenon
Kevin Johnson (University of California – Davis, USA)
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The availability of economic opportunity, as well as the promise of freedom, serve as powerful magnets to migrants from the world over.  Greater ease of transportation and ready access to information have facilitated unprecedented global movement.  As a result, Western nations must respond to significant and persistent migration pressures and flows.  Nations historically have employed immigration law and enforcement in an attempt to manage and restrict migration as well as to exercise social, cultural, and racial control over migration flows.  Race powerfully influences the decisions of Western governments to adopt such controls and what they look like. 

This chapter compares nearly simultaneous contemporary trade and migration developments in North America through the North American Free Trade Agreement (NAFTA) and Europe through the European Union (EU).  Both regional arrangements approached immigration in very different ways but ultimately yielded similar adverse migration consequences.  Experiences with NAFTA and the EU reveal the critical role that national immigration politics, xenophobia, and racism play in the effective application of regional migration arrangements.

Both the EU and the United States long have enforced what are effectively racial borders between nations.  Part I of this chapter focuses on how European nations historically have employed immigration laws and policy as tools of racial control and how the EU continues to serve that function today, with a figurative wall surrounding Europe—the so-called “Fortress Europe”—that seeks to prevent unauthorized migration from Africa and the Middle East.  Part II analyzes the reliance by the United States on the immigration laws to perform similar racial control functions.  Part III identifies similarities and differences in the EU’s and the United States’ use of the immigration laws and the lessons for international law that can be gleaned from those experiences.  To be effective and durable, regional and international arrangements must address concerns over racial control that influence and, at times dominate, national immigration politics.  At the same time, those arrangements must not simply allow developed nations to maintain the status quo and continue to pursue stringent migration controls.  International law faces the formidable task of balancing those competing goals to achieve arrangements that treat migrants in a humanitarian way.

Immigration Law as Administrative Law
Jill Family (Widener Law Commonwealth Law School, USA)
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The enforcement of immigration law requires a government actor to apply immigration law to an individual migrant. Administrative law governs that point of contact and shapes how individual migrants experience the law. Administrative law provides government actors with a framework for the enforcement of the law. It also can provide opportunities for migrants to push for proper application of immigration law and to push back against government abuses. The study of immigration law as administrative law is important because the nexus is where the theory gets put to a practical test; it considers the law as applied rather than as written.

This chapter will examine the role of administrative law principles in immigration law. The United States is the case study to illuminate how administrative law shapes immigration law. After a review of the role of immigration law in the development of US administrative law, the chapter will focus on the current role of administrative law doctrine in the administration of immigration law. This examination is especially important given that constitutional protections for migrants in the United States often are weak. Thus, administrative law can be the only source of protection against maladministration. At times, administrative law does not provide the tools migrants need to ensure faithful application of the law.

Part III. Issues in the Interdisciplinary Study of Comparative Immigration Law

Quantifying Immigration Law: Challenges and Solutions
Samuel D. Schmid (Max Planck Institute, Germany)
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During recent decades, quantitative tools to measure and compare migration-related policies across space and time have proliferated widely in comparative political science. By contrast, scholarship in comparative law, both related to migration and more broadly, has been hesitant to quantify legal rules. This chapter elaborates why comparative legal scholarship should embrace the quantification of migration-related regulations and how it can do so successfully. After elaborating the promises of translating legal texts into numbers, the chapter explains the core challenges and potential pitfalls this enterprise faces. The three core challenges are conceptualization, measurement, and aggregation. Any quantitative measure of migration-related laws must conceptualize adequately the policy dimension of interest, specify how different aspects of this dimension are measured, and then find the right formula to aggregate indicators into an index. Each step demands various ways of testing their validity and reliability – the two benchmarks of any scientific measurement exercise. Index builders must also identify the adequate unit of analysis, settle on a specific sample of these units across space and time, and then find ways to detect and deal with potential multi-dimensionality both theoretically and empirically. The creation of typologies as one specific way of dealing with multi-dimensionality is elaborated. The chapter then discusses selected measurement tools to show how these challenges have been addressed and solved in the existing literature. Against this background, a set of best practices for index building in the field of immigration law are identified. The same examples of measurement tools, ranging from labor immigration policies, family reunification policies, asylum policies, and citizenship policies are then used to make us aware that these best practices matter, as deviations from them are one of the main reasons why different studies reach divergent conclusions about legal trends in the same policy fields. The chapter ends by a discussing some additional challenges that scholar face when creating comparable measures on a global scale. The most pressing issue for current and future projects is to find measures with which we can adequately compare legal rules from countries with robust rule of law to those in which the law on the books is not fully implemented.

Open Chapter

Comparing Migration Laws: Context, Equivalence, and Learning From Human Rights

Mary Crock (University of Sydney, Australia)
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If international migration concerns the movement of people between countries, one might expect relevant scholars and legal practitioners to have a natural interest in comparative law. Governments everywhere are now openly studying and copying each other’s laws and policies as they compete to attract desirable migrants and to block or deter undesirable ones. As a general rule, however, legal scholarship and the practice of immigration law remain stubbornly domestic in orientation. In this article I argue that failure to engage in comparative law will soon place practitioners at a competitive disadvantage in both their interactions with government and with private clients working increasingly in a globalized environment. Migration law scholars face all the classic challenges that beset those seeking to compare laws and policies. I explore how a ‘functioning’ and ‘capacities’ approach can assist in obtaining true measures of equivalence in migration law and policy – through time as well as across states. Using the somewhat intuitive methodology used in the IMPALA Database project as a case study, I argue that comparative migration law has much to gain in adopting approaches and methods forged in the context of human rights protection.

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Qualitative Methods in the Study of Migration and Refugee Law
Katerina Linos (University of California – Berkeley, USA)
Elena Chachko (Harvard University, USA)

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To study different aspects of migration and refugee law, it is often critical to study diverse cases. For example, to study how the design of refugee status determination mechanisms influences refugee determination outcomes, it is important to evaluate the operation of a particular mechanism across different systems.  Where should researchers start their comparisons? How can they know whether they are cherry-picking examples that favor their preferred conclusions? When is it best to develop examples from countries that are very different from one’s own, and when should one focus on similar ones? Which aspects of foreign systems are most relevant for particular inquiries? And how best to conduct within-case analysis? The fields of comparative law and comparative politics have made tremendous progress on each of these questions. This essay synthesizes their key findings, and applies them to fundamental questions in migration and refugee law. 

Open Chapter

How and Why ‘Ideas Travel’ in Migration Law and Policy
Ayelet Shachar (University of Toronto, Canada)
Daniel Ghezelbash (Macquarie University, Australia)
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This chapter will provide an introduction to the study of comparative immigration law through the lens of diffusion. Immigration law is typically understood as the last bastion of sovereignty, a policy area shaped primarily by domestic forces; diffusion scholarship, by contrast, emphasizes processes of inter-jurisdictional learning and emulation. The diffusion perspective invites us to ask how and why “ideas travel” across jurisdictions and to trace the complex ways in which states are interacting with one another in shaping their own borders and membership boundaries. We refer to diffusion as the process through which policy choices in one country affect those made in other countries, and the resulting spread and adaption of law and policy across jurisdictions. The phenomenon has been studied across various disciplines, including law, political science, sociology, international relations, and public policy. Surprisingly, scholars of immigration have only recently begun to systemically explore patterns of diffusion, “borrowing,” and mutual learning, and their influence on our understanding of policymaking in this highly charged area of public life. In Part 1, we take transdisciplinary approach to examining (a) why diffusion of immigration law and policy occurs; (b) the importance and utility of academic study of the phenomenon; and (c) the methods and approaches that can inform the study of how ideas travel across jurisdictions.

In Part 2, we set out several case studies to contextualise and illustrate the themes discussed in Part 1. The study of diffusion typically highlights the interests of states; we complement this by considering the perspective of those most impacted by these policies, namely, prospective migrants. Our illustrative examples will be divided into two main categories. First, we elaborate on patterns of diffusion that create a “race to the top” from the perspective of would-be entrants, granting them choice among potential destination countries when the latter compete to “lure” sought-after migrants, including the highly skilled, those with “super talent,” and, increasingly, deep pockets as well. We then shift the focus to the diffusion of restrictive border control policies which create a “race to the bottom” as states compete to deter asylum seekers and other “undesirable” migrants. Here, we explore the spread of policies such as detention, offshore processing, boat-pushbacks at sea, reliance on transit countries as buffer zones, and other shifting-border technique to “push the border out” as far as possible and thus stop migrants before they reach the territories in which they seek to make protection claims. Finally, we step back in time to trace the spread of Chinese exclusion laws across white settler states in the late 19th and early 20th century to demonstrate that diffusion has been occurring for as long as states have been attempting to exclude certain migrants while seeking to draw others.

Open Chapter

From Building Political Will to Building Political Action: The Evolution of Global Migration Governance from 2002-2021
Michael Doyle (Columbia University, USA)
Margaret Powers (Mayors Migration Council, USA)
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We begin with a discussion of the challenges involved in putting migration on the UN agenda and building the political will that would permit the development of norms and standards to better govern the global cross-border flows of migrants and refugees.  The challenge of this first phase was norm creation.  Migration found no place in the 2001 Millennium Development Goals. In 2002, the mere introduction of migration through the Doyle Report (to SG Annan) caused controversy among states who judged migration to be national or, at most, a matter of regional concern.  SG Annan successfully then mobilized the support to support a Global Commission, which in turn led up to High Level Dialogues and the appointment of an SRSG (Peter Sutherland) to advance the issue and manage the Global Fora on Migration and Development. And the eventual successful inclusion of migration in the SDGs (2015).

In the second phase, the emerging norms of migration cooperation and well-established (but limited) protections afforded to refugees were severely tested and then strengthened by the humanitarian refugee crisis that engulfed the Middle East and then flowed into Europe in 2015-2017.  The member states, led by a key coalition of progressive UN diplomats from Europe and the developing world and UN Secretariat officials refined and operationalized a carefully drafted set of voluntary guidelines in the two Compacts, one for Migration and one for Refugees endorsed in 2018. 

We conclude by exploring the third and current phase of multilateral reform, which focuses on two challenges.  The first is keeping a multilateral consensus while attempting to deliver for migrants and refugees through implementing the commitments embodied in the two compacts. The second is cultivating support for the vital issues left out of the two compacts by mobilizing new actors (mayors, the private sector, NGOs) to address the missing protections and needed standards revealed by COVID, the climate crisis and the continuing weakness of reliable and regular channels for migration.

Future International Cooperation
Jill Goldenziel (Marine Corps University, USA)
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(to come)

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Part IV. Comparative Issues in Who May be Admitted

National Visa Policy

United States
Kit Johnson (University of Oklahoma, USA)
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The United States grants millions of visas a year to noncitizens who want to come to this country. Parts I-III of this chapter explore the three main categories of U.S. visas: immigrant, nonimmigrant, and refugee. Part IV discuss how many noncitizens can legally enter the United States without a visa, including those from countries participating in the Visa Waiver Program and individuals granted parole. Each Part of this chapter describes current law, offers brief historical analysis, and identifies modern policy disagreements. 

I.  Immigrants 
In the United States, the term immigrant is a legal one. It refers to individuals being admitted to the United States as lawful permanent residents (LPRs). These immigrants are commonly called “green card” holders, a nod to the original color of the wallet-sized visa documents issued to LPRs. 

Immigrant visas are the most coveted of U.S. visas. That is because immigrant visa holders are unrestricted in how long they can stay in the United States and what activities they can undertake while here. Most notably, immigrant visa holders are automatically on a path to become U.S. citizens.

The United States issues around one million immigrant visas each year. They are made available to just three categories of noncitizens: (i) those with family connections in the U.S., (ii) those with jobs awaiting them in the U.S.; and (iii) those who win a diversity lottery. Family connections have long been an important focus of U.S. immigration law, though, in recent years, lawmakers have advocated for an increased focus on employment. The diversity lottery is the newest immigrant visa category. Created to award visas from countries otherwise underrepresented in the current immigration pool, the diversity visa program has been a subject of controversy since its inception in 1990. 

II.  Nonimmigrants 
Unlike immigrant visa holders, nonimmigrant visa holders are admitted to the United States for a limited time and a limited purpose. For example, a person with a tourist visa may be admitted to the United States for six months, during which time they may freely travel around the country but cannot work or attend school. The vast majority of nonimmigrant visa holders do not have a path to U.S. citizenship. 

Many more nonimmigrant visas are awarded each year than immigrant visas, though numbers vary. For instance, compared to the approximately one million immigrant visas issued each year, in Fiscal Year 2020, just over four million nonimmigrant visas were issued. As recently as Fiscal Year 2016, over 10 million nonimmigrant visas were issued. 

Nonimmigrants include temporary workers, international students, and tourists, among others. While immigrant visa categories have been stable over a long timeframe, Congress has frequently adjusted nonimmigrant visa categories over the years, with the types of available visas generally expanding over time. 

III.  Refugees 
The President of the United States is charged with identifying the appropriate number of refugees to be admitted each year. The largest number of refugee admissions ever authorized was 231,700 in Fiscal Year 1980. The trend has been downward since then. The nadir was 18,000 in Fiscal Year 2020.  

While refugees are admitted into the United States with refugee status, after one year they can adjust to immigrant (i.e., LPR) status. 

IV. Legal Entry Without Visas 
Key to understanding U.S. visa policy is the context of non-visa admissions—which looms large both in terms of quantity and economic significance. Many noncitizens are allowed entry into the United States without a visa. The Visa Waiver Program (VWP) allows citizens of certain countries to enter the United States for 90 days, whether for business or pleasure. VWP countries, of which there are about three dozen, tend to be wealthy democracies with whom the United States has close ties, including the United Kingdom, Japan, France, Germany, and Australia. VWP travelers are screened to ensure their eligibility, but they are not issued a visa. 

Another important group of noncitizens allowed entry into the United States without a visa are those granted parole. This is a status in which the United States allows the noncitizen to physically enter the country under the supervision of the Department of Homeland Security (DHS). Parole is frequently associated with asylum seekers who present themselves at the border, are released from DHS custody, and continue to pursue their asylum case from within the United States.

European Union
Evelien Brouwer (Utrecht University, Netherlands)
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With the abolition of internal border controls on the basis of the Schengen Implementing Agreement of 1990, the Schengen states adopted ‘compensatory’ measures, including a common external border and visa policy. Entry conditions for the Schengen territory are included in the so-called Schengen Borders Code or Regulation 2016/399, including the requirement of a short-term visa (visits up to three months) on the basis of the current Visa Code (Regulation 810/2009, amended by Regulation 2019/1155) for nationals from third states listed in Annex I of Regulation 2018/1806. The EU visa regime is part of a stringent external border policy, meant to facilitate the entrance of so-called ‘bonafide travellers’ in Europe and to exclude those considered as a risk for security or irregular immigration.

The first part of this chapter will provide a short historical overview of the Schengen negotiations on the abolition of the internal border controls and the development of common visa rules and the establishment of the so-called visa list of third countries whose nationals must have a short-term visa before entering the Schengen area. This part will describe the integration of the Schengen acquis in the legal framework of the EU with the Amsterdam Treaty of 1997 (entering into force in 1999), explaining the legally important consequences of this ‘Europeanization’ of the Schengen border regime, both with regard to the role of the Court of Justice of the European Union (CJEU) and the European Parliament, as the application of general EU principles, including effectiveness, proportionality, and the right to effective judicial protection as protected in Article 47 of the Charter of Fundamental Rights of the European Union (CFR).

Part two describes the content of the EU visa regime on the basis of the Schengen Borders Code and Visa Code, explaining the meaning of a Schengen visa, the application procedure and conditions, and the rights of the visa holder. It will also address the EU policy on visa facilitation regimes, linked to readmission agreements with third states.

Part three will then explore the categorisation of third-country nationals in the current EU visa and policy regime, describing the differentiation between those nationals who are visa exempted and those who are not. The legitimacy of this differentiation, which can also be found in other fields of migration policies, will be analysed on the basis of literature, both from a human rights perspective and critical race and postcolonial theory.

This part will also analyse the lack of a humanitarian visa regime in the EU and the fact that refugees are excluded from the possibility to apply for a short-term visa under the Visa Code. This absence of a formal visa policy allowing refugees safe journeys to Europe has been dealt with in a controversial manner by both the European Court for Human Rights (ECtHR) and the CJEU which case-law will be discussed in this part as well.

Part four describes the privatisation of EU visa policies, addressing both the role of transport organisations such as air carriers in checking the travel documents of travellers, as the role of external service providers. It will analyse the impact of this privatisation for the rights and legal protection of visa applicants. This will include an analysis of case-law of the CJEU addressing the scope and legitimacy of carrier sanctions and the obligations of carriers to transmit passenger data to EU border officials on the basis of EU legislation.

Part five focuses on the right to effective judicial protection of visa applicants, taking on board landmark cases of the CJEU on the basis of Article 47 CFR and applying this fundamental right to visa procedures. This part will then address the negative consequences of the common visa policy in the EU, explaining the applicable ‘visa representation regime’ and ‘consultation mechanisms’ in the Visa Code. It will be explained how these instruments of mutual trust in the EU, in practice may hamper the procedural rights of visa applicants and their access to effective judicial remedies against a visa refusal. It will be explained why these problems are only partially solved by more recent case-law of the CJEU.

Domestic Refugee Law

Brazil’s Recognition of Refugee Status: Normative, Procedural, and Political Issues 
Liliana Jubilut (Universidade Católica de Santos, Brazil)
Melissa Martins Casagrande (Federal University of Paraná, Brazil)
Marina Cardoso Farias (Federal University of Paraná, Brazil)
Giovana Agútoli Pereira (Fundação Getulio Vargas, Brazil)
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2022 will mark the 25th anniversary of Law 9.474/97, Brazil’s national norm on refugees. Law 9.474/97 is the cornerstone of current refugee protection in the country, establishing the concept of refugee, their rights, and the foundations of refugee status determination (RSD) in Brazil since 1997. Law 9.474/97 has its basis on the constitutionally established right of asylum, but also dialogues with other norms to constitute the domestic architecture of refugee protection in Brazil. In this context, it is relevant to highlight resolutions regarding RSD by the National Committee on Refugees (CONARE), itself created by Law 9.474/97, as well as norms from 2011 that have established humanitarian visas that might also address refugee protection. These norms directly impact the recognition of refugee status in Brazil as they regularize aspects of their arrival in the country, their request for refugee status, the contours of RSD in the country, and outline the rights asylum seekers and refugees are entitled to. Nonetheless, the legal architecture is also affected by exogenous elements such as by political choices and options, which also have reflexes on refugee protection in the country. In light of this, and through the lenses of International Refugee Law, International Human Rights Law, and their implementation in Brazil’s domestic legal order, this chapter aims to present the normative, procedural and political issues surrounding the recognition of refugee status in Brazil, from the adoption of Law 9.474/97 onwards, including policies related to the COVID-19 pandemic. In this sense, the chapter will adopt a temporal framework, to focus on the current existing regime of RSD in the country, dialoguing with historical aspects when necessary for context. It will also adopt a structure to present the topics in line with the phases of the movements of displacement, from the entry into the country, to the possibilities of inclusion as a refugee and the grounds for exclusion (as Brazil adopts an inclusion before exclusion logic for RSD). This analysis will be preceded by a panoramic view of the legal structure of Refugee Law in the country and followed by the assessment of Brazil’s recognition of refugee status in light of International Refugee Law and International Human Rights Law. The chapter, therefore, aims to assist in the contribution of the Oxford Handbook of Comparative Immigration Law in providing “broader set of ways to think about immigration law and policy” by detailing RSD in a country that has been deemed a regional model in refugee protection and a leader in proposing novel initiatives for the protection of this vulnerable population. 

Hong Kong and China
Kelley Loper (University of Hong Kong, China)
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This chapter compares the legal responses to refugees and asylum seekers in Hong Kong and mainland China. Hong Kong’s unique constitutional arrangement as a Special Administrative Region under Chinese sovereignty guarantees the territory a high degree of autonomy in all areas except foreign affairs and defense. Based on the principle of “one country, two systems”, Hong Kong maintains a separate common law legal system and immigration regime. As such, regional and national approaches to refugee law and policy vary substantially. Each jurisdiction is also bound by different, relevant international standards. Although China is party to the 1951 Convention relating to the Status of Refugees (Refugee Convention), the treaty has not been extended to Hong Kong. At the same time, the International Covenant on Civil and Political Rights (ICCPR) (which China has not ratified) has continued to apply to Hong Kong since the end of British colonial rule in 1997. Indeed, most of the provisions in the ICCPR have been duplicated and directly incorporated into Hong Kong’s constitutional framework. 

In response to strategic litigation, the Hong Kong authorities have gradually developed a screening mechanism which considers non-refoulement claims. This system is based in part on the ICCPR’s implicit obligations on governments to refrain from returning individuals to countries where they risk serious harm, including violations of the rights to life and freedom from torture and other cruel, inhuman, or degrading treatment or punishment. Furthermore, the Hong Kong courts have applied common law principles of fairness to mandate protection for refugees from refoulement in accordance with Article 33 of the Refugee Convention. Despite these advances, the system is limited to non-refoulement only. Although successful claimants are not deported, they are not provided with a legal status or associated rights and cannot be resettled in Hong Kong. The system also operates largely within an immigration control (rather than a rights-based) paradigm. 

Despite China’s accession to the Refugee Convention and some limited references to refugees in national legislation, the central authorities have yet to introduce more detailed regulations. Unlike Hong Kong, mainland China has no government administered screening mechanism, although the UNHCR office in Beijing is allowed to conduct refugee status determination for some asylum seekers. In practice, most refugees fall through the cracks, and some groups, such as North Korean asylum seekers, are expressly excluded altogether. Both the central government and the Hong Kong authorities have also recently introduced retrogressive measures which, alongside a growing emphasis on national security priorities and the impact of the COVIS-19 pandemic, have further restricted refugees’ access to rights. 

This chapter’s analysis of the challenges in Hong Kong and mainland China provides comparative insights which may contribute to discussions about broader issues in the field. These issues include, for example, whether the Refugee Convention still has practical and normative relevance and the extent to which other international human rights treaties might play a greater role in securing refugee protection even in contexts where the Refugee Convention does not apply. 

Agnes Hurwitz (UN High Commissioner for Refugees, Jordan)
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(to come)

South Africa
Fatima Khan (University of Cape Town, South Africa)
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The history of refugee law and policy in South Africa spans the colonial, apartheid, and post-apartheid eras. It shows that South African refugee law and policy have evolved from a preoccupation with race as its organising framework under colonialism and the apartheid regime, to a framework that places human rights at the centre under the new Constitution. South Africa has moved from an approach during apartheid that used the doctrine of sovereignty to regard citizenship as a prerogative of the State such that the State could choose without censure to whom it granted refugee status and citizenship to one that must be counterbalanced by its commitment to human rights as part of South Africa’s constitutional democracy. 

Even though the United Nations Convention Relating to the Status of Refugees (1951) and the Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa on refugees (1969) were already adopted and in operation, these refugee conventions had no impact on South Africa’s refugee law during apartheid. Refugee admission remained race-based, and the broad discretion accorded by its laws meant that perceived desirables—Europeans or Africans of European descent, such as Rhodesians and Mozambicans—were granted entry, settlement, and full citizenship immediately. 

By 1994, South Africa decided to move away from the policy of exclusion to one of inclusion in keeping with its newly created constitutional values.  Crucially, South Africa’s Constitution is its supreme law, and all other law and conduct must be consistent with it or else be invalid.  Not only did South Africa ratify the international refugee law instruments, but it also enacted refugee specific legislation.  It is thus only in a post-apartheid South Africa that refugees were accepted into the country based on human rights and international refugee law. 

According to Hathaway, South African refugee law is founded on four elements: temporary protection, protection of refugee rights, collective responsibility, and being solution orientated.  The Refugees Act also categorically states that while South Africa, as a sovereign nation, has the right to decide who enters its territory, it would exercise this right in a manner that reflected the country’s commitment to human rights: South Africa enacted the Refugees Act in 1998. It has since been amended in 2008, 2011, 2015 and 2017. Most of these amendments only came into effect on January 1, 2020 — contemporaneously with the new Refugee Regulations adopted at the very end of 2019. While the implementation of the Refugees Act leaves much to be desired, substantively it is compatible with international refugee and human rights law notwithstanding the recent amendments. 

Open Chapter

Comparing Refugee Recognition Regimes
Cathryn Costello (University of Oxford, UK)
Tamara Wood (University of New South Wales, Australia)
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This chapter introduces the concept of the ‘refugee recognition regime’ in order to provide an appropriate object for comparative interdisciplinary study.  This term encompasses the practices that determine access to status determination, exclusion from that status, and the various modes of individual status determination and their alternatives.  Indeed, it offers a deep reconceptualization of refugee recognition practices in light of global practices. In particular, it offers a reconceptualization beyond misleading binaries around ‘individual’ vs. ‘group’ based processes.  It draws on a range of state and UNHCR practice, and offers an important corrective to the misunderstanding of ‘prima facie recognition’ as an exclusive African practice under that region’s expanded refugee definition.  Rather we demonstrate that presumptions of inclusion and related group-based assessments play a role in all refugee recognition. Having set out the concept of ‘refugee recognition regime’, the chapter provides an overview of existing comparative scholarship, mainly in political science, critiquing its predominantly Northern focus.  We offer some insights from a comparison of refugee recognition regimes globally, and suggest avenues for future comparative study. 

Migrants vs. Refugees: When International Law and National Policies Depart from One Another
Philippe Fargues (European University Institute, Italy)
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(to come)

Border Security

Daniel Thym (Universitat Konstanz, Germany)
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The chapter will elaborate on core elements of the EU’s border control law and policy. Member states, including Germany, have delegated core responsibilities to the European level in the ‘Schengen area’, which comprises internal free movement and common external control practices. In doing so, it will coordinate with the chapter by Violeta Moreno-Lax on maritime border controls and the right to asylum. The chapter will pursue a threefold objective: explaining the idiosyncrasies of the EU’s Schengen area to the global audience; highlighting countervailing impulses to border security and respect for humanitarian standards in the design and evolution of border control law and policy; describing contemporary ‘battlegrounds’ with regard to externalisation and control practices at the external border. Subjects and overarching themes to be discussed will include:

Schengen area: Europeanisation was much more than the simple projection of earlier national control practices upon the external border. The Schengen framework served as a laboratory for the design and proliferation of new control elements, such as databases, visa requirements, carrier sanctions, and transnational operational cooperation under the auspices of a supranational agency (Frontex). Developments in Europe played, and continue to play, a critical role in the externalisation of migration control in the global North. At the same time, the historic motivation of internal free movement remains pertinent and fragile: the spread of internal border controls, substantial delays in the accession of new members, and disputes about internal ‘secondary’ movements of asylum seekers undermine the effective functioning of the Schengen area and result in intricate legal disputes.

Control of the external borders: EU legislation and judgments of the European Court of Human Rights played a critical role in establishing legal standards border guards must respect. Corresponding rules and developments will have to be described, within the confines of space available, with a focus on those aspects that are at the centre of contemporary debates. By way of example, EU legislation lay down distinct sets of rules for checks on persons at crossing points and border surveillance elsewhere. Readers should become aware of the contents of secondary legislation, which comprises complex statutory prescriptions but can establish a higher level of protection for nationals of third states than under human rights law. 

Contemporary ‘battlegrounds’: Notwithstanding the existence of an elaborate and wide-ranging rulebook, it remains a formidable challenge to define the precise scope of the legal obligations and to ensure respect for supranational laws on the ground (think of the allegations of ‘pushbacks’ by the border guards of several member states). Similarly, EU institutions and member states have invested considerable political capital in controlling migratory movements by means of corporation with third states (think of cooperation with Turkey, Morocco, and Libya). A recent development has been the ‘instrumentalisation’ of migration by third states, notably Belarus, which might trigger the design of new policy responses. 

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Violeta Moreno Lax (Queen Mary University of London, UK)
Nicolette Busuttil (Queen Mary University of London, UK)
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(to come)

Canada: Past, Present and Possible Futures of the Settler Society Model of Migration Law 
Audrey Macklin (University of Toronto, Canada)
Jessica Templeman (University of Toronto, Canada)
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As a historical matter, migration law is a project and product of global North settler societies.  Settler societies like Canada, the United States and Australia/New Zealand (as well as many Latin American states) regarded mass immigration as vital to nation building.  Immigration functioned to displace and dispossess Indigenous peoples, secure the state against external aggression, and build the nation demographically, socially and economically.  Immigration is understood as constitutive of settler societies. It is supplementary to non-settler societies, who conceive of their nation as constituted without, and prior to, migration.  And while the nation-building narrative has sustained relatively large-scale immigration to settler societies, it also germinated and sustained an insistence that the state can, and should, select, control and restrict immigration in accordance with evaluations of who is morally, racially and physically fit for membership in the nation.  It is also significant that the first and most muscular jurisprudential articulations of an unfettered right of states to deny entry or to expel non-citizens arose in the jurisprudence of (or about) settler societies, effectively obliterating an earlier tradition among international jurists that defended the legality of transnational mobility. 

This chapter identifies three features of migration law that are (or were) characteristic of settler societies.  These are first, an emphasis on permanent rather than temporary migration; second, an embrace of family or kinship-based migration; and third, relatively easy access to citizenship. Each of these features served the original aspirations of a settler society, and yet each, to a greater or lesser extent, is under strain in contemporary settler societies.  Secure, permanent status is being eroded, family migration is deprecated and restricted, and citizenship is less accessible than it was.  Meanwhile, as European states grudgingly recognize the importance of permanent immigration to manage chronic economic/fiscal and demographic needs, some have adopted policies inspired by decades-old settler society practices.  Proclaiming convergence would be premature, but the historical gap between the migration regimes of settler societies and ‘old world’ states of Europe is certainly narrowing.

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United States
Shoba Sivaprasad Wadhia (Penn State University, USA)
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The Secretary of Homeland Security is required to set priorities for enforcement, which are necessary because the government simply lacks the resources to arrest and deport every person arriving or living in the United States without authorization. For the last decade, and over three administrations, the federal Department of Homeland Security has prioritized recent arrivals at the border for removal or deportation from the United States. Most recently, Secretary Alejandro Mayorkas issued a Department-wide memorandum on September 30, 2021, pinning those who recently entered or currently enter the United States without authorization as “threats to border security.” Prioritizing border crossers perpetuates a narrative that places blame on the individuals and families who are crossing without a closer examination about the factors and agency actors that cause unauthorized migration. This essay challenges the choice by the U.S. government to prioritize border crossers for immigration enforcement through three analytical lenses. First, it explains the reasons for why people enter the United States through the U.S. Mexico border, considering natural disasters, civil war, poverty, persecution, gang violence, and economic opportunity. This essay also examines the racial disparities caused by targeting border crossers, and in particular those who have faced expulsions through an immigration policy change issued in March 2020 in the name of public health. Finally, this essay studies how congressional inaction on immigration reform has influenced immigration at the border. This essay recommends a reframing of the narrative “threats to border security” to a frame that is more aligned with legal principles, racial equity, and the social and political conditions in the United States and abroad.

Africa and Global Health
Nicholas Maple
(University of the Witwatersrand, South Africa)

Rebecca Walker (University of the Witwatersrand, South Africa)

Jo Vearey (University of the Witwatersrand, South Africa)

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(to come)

Open Chapter

Family Reunification and Immigration Law

United States
Ann Estin (University of Iowa)
David Thronson (Michigan State University, USA)
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U.S. immigration law is often described as promoting the goal of keeping families intact, and in a limited respect such statements are accurate. An elaborate system of family-sponsored immigration and related provisions for derivative immigration of the family members of certain immigrants who qualify under family-sponsored, employment-based or diversity visa lottery provisions form the bulk of lawful migration to the United States. In any given year approximately 80% of lawful permanent immigrants in some manner can trace their status to a family relationship. Yet even as U.S. immigration law incorporates family as a central factor in its frameworks for migration, it is wildly inconsistent in the scope and treatment afforded to certain relationships. 

The notions of family that are embedded in U.S. immigration are traditional and formalistic, and rigidly applied. This elevation of formal legal relationships over actual caretaking roles and de facto relationships can thwart family integrity or block reunification of extended families outside narrow U.S. conceptions of the nuclear family. Further, the focus on formal relationships brings a fragility to some migrants whose status is solely derived from a relationship to another, such as the spouse who can lose status upon divorce. And the formality of family as used in immigration law means that not all children are recognized as children, and they will only qualify as a “child” by satisfying the criteria of a particularly exhaustive statutory definition. 

As to children, U.S. immigration law’s allocation of immigration benefits based on family relationships is strikingly asymmetrical in its treatment of adults and children. Children are largely stripped of the ability to generate immigrant rights for others, including their parents. Because U.S. immigration law subordinates children’s interests to those of their parents, , families often find themselves choosing between family integrity and the de facto deportation of children who have an immigration right to remain. The limitations on children’s ability to generate immigration rights for their parents extend to contexts of deportation or waivers of grounds of inadmissibility, where children’s interests are significantly or completely ignored. Even in humanitarian forms such as relief, children’s interests are devalued such as by not allowing a parent to derive relief from a grant of asylum to a child. 

Hardship to children is not only contemplated as an acceptable outcome of the immigration process, in some instances it is actively sought. The willingness of U.S. immigration to use harm and hardship of children to influence adult behavior places it far from the mainstream of U.S. family and child welfare law in the treatment of children. 

United Kingdom
Helena Wray (University of Exeter, UK)
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The UK law on family reunification is restrictive, complex and difficult to access. It has been shaped by diverse historical influences that have played out over the past sixty years, including the UK’s position as a decolonising power, the impact of European laws, and the recent political and social context. The chapter will explain the current law and put it into its wider, historical context.  

The first section will explain the structure of family reunification law within the UK’s legal system. It will briefly survey the current law as it applies to several categories of sponsor (citizens and permanent residents; labour and other non-settled migrants; citizens of the European Economic Area; refugees and beneficiaries of humanitarian protection) identifying common themes and problems. Themes include an emphasis on financial resources, the protection of public services, cultural conformity and English language proficiency, a preoccupation with perceived abuse of the family route, and the admission of relatives with ‘bad character’ or prior breaches of immigration laws. Problems include a system that is rigid, highly technical in character, difficult to decipher and navigate, and extremely expensive over a protracted period, Categories of admissible relatives are narrow, and there is limited legal or other accountability. 

The chapter will then discuss the factors that have contributed to the evolution of the law into its current form. The first of these is the UK’s history as a colonial and then decolonising power, and associated patterns of migration. Efforts to control these from the 1960s onwards shaped the regulation of family reunification in ways that are still visible today. The second and third factors were an increase in irregular migration from the 1990s onwards, including by asylum seekers, and the incorporation into British law of European Union free movement law and, under the Human Rights Act 1998, European human rights standards, leading to efforts by successive governments to prevent asylum seekers and irregular migrants, in particular, from using human rights to claim protection of family life in the UK. The fourth factor has been the anti-migration policies of the Conservative led government from 2010, which have led to a series of draconian external and in-country controls (the ‘hostile environment’), which affected the ability of family members to enter and progress through the immigration system. The final factor was the UK’s departure from the European Union, which has led to the removal of free movement rights for EEA citizens, changes in status, and their subjection to the full force of family reunification laws. 

Low Choo Chin (Universiti Sains Malaysia, Malaysia)
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The Malaysian policy of family reunification illustrates the tension between economic desirability, immigration control, and national security.  This chapter examines the right to family unification based on different categories of migrants.  Based on economic desirability, high-skilled migrants are allowed to bring in dependents, low-skilled labor migrants are not allowed, and marriage migrants’ application for permanent residency is arbitrary.  The Malaysian case shares the similar feature of other Southeast Asian states, which favored high-skilled professionals for family unification, discriminated low-skilled migrant workers and prevented migrant workers from marrying local citizens. Unlike the European Union’s immigration regimes which allows family reunification (and eventually naturalization), there is no such rights-based policy framework in Malaysia. Economic desirability, immigration control and national security concerns have determined that the right to family unification is applied selectively to certain category of un/desirable migrants. The analysis draws upon ASEAN documents, legislations, Hansard records, case law, reports by civil society organizations, press releases and secondary literature. 

In the Malaysian context, the government introduced the Malaysia My Second Home (MM2H) Programme in 2002 to attract high-skilled foreigners to stay in in country on a 10-year renewable Social Visit Pass. The right to family unification is granted as participants are allowed to bring along dependents (defined as spouse, unmarried children below 21 years old and parents or parents–in–law). Moreover, the MM2H programme also accepts “Add-On Dependent” application for dependents who are not listed during the initial MM2H application.  Expatriates working temporarily in an organization in Malaysia under Employment Pass may apply for a Dependant Pass for their family members (included spouse, children, a legally adopted child, parents or parents-in-law). For low-skilled migrant workers, Malaysia’s immigration law does not allow them to sponsor their family members, prevents them from establishing permanent residency and eventually prohibits them from applying for citizenship. Migrant workers, holding the Visit Pass (Temporary Employment) [VP(TE)] are subject to restrictive conditions; no accompanying family members; no change of employers or employment sectors; and no marriage with either local or foreign citizens. Similarly, marriage migrants’ right to family unification is not automatic as the application process for permanent residence is arbitrary. Under Immigration Regulations 1963 (Regulation 16A), there are some categories of foreigners allowed to apply for a five-year residence pass, including a person with family ties with a Malaysian citizen (including foreign spouses, children, divorcee, parents, parents–in–law), a person with family ties with a Permanent Resident of Malaysia (including children and spouses) and former Malaysian citizens. This chapter suggests that the hierarchical access to family reunification rights is the product of Malaysia’s skilled-based immigration regime, which categorized migrants in accordance with their level of economic desirability. A family-based immigration law and a family department within the Immigration Department are largely absent. 

Temporary and Permanent Employment and Labor Migration

China: Reforming Chinese Employment Stream Migration Law Regime
Liu Guofu (Beijing Institute of Technology, China)
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Chinese employment stream migration law regime underwent fundamental reformation. The introduction of a unified work permit for foreign nationals that is issued by the local bureaus of the State Administration of Foreign Experts Affairs constitutes a significant institutional and procedural change that trims procedures and clarifies competences. Further, the new classification scheme divides foreign nationals into three categories of according to academic qualification, professional experiences and income, which is supplemented by a points system. Its main objective is to establish a modern migration law and policy system to attract highly skilled global talent. Applying a doctrinal approach, this study analyses the most recent policies and legal reform measures of the employment migration system. It discusses the changes against the background of other elements of the legal status of foreign nationals in China such as the resident permit system, naturalization, labour standards, social insurance, legal remedies, the legalization of illegal labour migration and the legal framework for the integration of foreign employees into society.

Open Chapter

Policies and Legislative Frameworks Governing Labor Migration to the Oil-Rich Gulf Countries
Nasra Shah (Lahore School of Economics, Pakistan)
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(to come)

Open Chapter

The Reform of the Kafala System in the GCC States
Ibrahim Awad (American University in Cairo, Egypt)
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The legal framework for labor migration in member states of the Gulf Cooperation Council of the Arab States of the Gulf (GCC), known as the Kafala system, has been the subject of sustained international criticism since the mid-1970s. For its assailants, the system denied the labor and human rights of the tens of millions of workers who joined the flows of migrant workers to the GCC in the last 50 years. 

Badly in need of foreign workers at all skill and educational levels in the 1970s and 1980s, since the beginning of the 21st century, the GCC faced a new challenge. This is the high unemployment rates in their labor forces, particularly among the highly educated. Justifiably or not, they attributed these unemployment rates to the large stocks and flows of migrant workers, which led them to adopt policies for the nationalization of employment such as Saudization, Omanization and Kuwaitization.  

The international criticism and concern for the unemployment of the highly-educated led the GCC states to reform the legal framework for labor migration with a view to improving the working and living conditions of migrant workers and to reducing their numbers. In Qatar and the United Arab Emirates (UAE), two additional objectives prompted them to introduce reforms to the Kafala system. For Qatar, it was the critical importance for it to deflect criticisms to the system in order to ensure its organization of the FIFA world Cup in 2022. For the UAE, it was its purposeful objective to transform its economy into a high-productivity, high skill-content, knowledge economy.   

The different drivers of reform led to reform with comparable and diverse measures. After briefly reviewing the broad features of the Kafala system and the four drivers signaled above, the chapter will take up the comparable reform measures, which are about improvement of the terms and conditions of employment and the enjoyment of labor and human rights. It will then analyze the diverse measures which address the specific objectives of the GCC countries. The common and diverse measures may reinforce or be in conflict with each other. Reform in Qatar, Saudi Arabia and the UAE will be taken up. 

Part V. Comparative Issues in Who May Stay and Who Must Leave

Asylum Policy and Process

United States
Maryellen Fullerton (Brooklyn Law School, USA)
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From a comparative perspective, it is important to highlight the two processes by which refugees can obtain asylum in the United States. The 1951 Convention definition is central to both procedures. The overseas resettlement program typically selects 80,000 refugees per year to obtain safe haven in the United States and to become lawful permanent residents. In addition, the asylum procedures that operate at the borders and within the United States typically decide roughly 40,000 asylum applications per year; in recent years (pre-Trump) the success rate was in the range of 40 to 50 percent.  

Within the territorial asylum procedures, there are two routes:  filing affirmative asylum applications versus seeking asylum defensively after being placed in deportation proceedings in immigration court. Significant consequences flow from the path selected. Whether asylum seekers have legal representation is even more crucial. US law does not provide legal assistance in civil litigation, including in asylum cases where the consequence of an incorrect assessment may be continued persecution or death. In addition, an increasing use of detention during the asylum process imposes heavy mental and physical costs on asylum seekers, while detention also compounds the difficulty of obtaining volunteer legal counsel. 

Harsh asylum procedures at the US-Mexico border gained notoriety during the Trump Administration, but in fact they preceded—and have outlasted—that time. Congress authorized expedited removal, a summary proceeding, in the 1990s. Subsequent administrations expanded expedited removal from the border to zones extending 100 miles from both land and maritime frontiers, an area that includes two-thirds of the US population. “Metering,” the migrant “protection” protocol, and public health bans on entry of asylum seekers are new developments that have deformed US enforcement of national and international law. 

In terms of substantive standards for obtaining asylum, US jurisprudence is in a state of flux. After establishing the Acosta framework, which has been applied worldwide in analyzing membership in a particular social group, US case law retreated to more restrictive definitions, particularly in the context of gender-based and gang-related persecution. Some of the precedent decisions were recently vacated as the Biden Administration contemplates rulemaking to address social group claims. US jurisprudence has been quite restrictive in several other realms, such as exclusion of asylum seekers based on prior criminal activity, persecution of others, and terrorism-related charges. Statutory interpretations have also narrowed protection afforded by the Convention Against Torture. 

Additional humanitarian programs complement the standard asylum procedures in the US. Asylum can be granted in some instances based on past persecution alone, without fear of future persecution. Temporary protected status (TPS), though not tied to threats of persecution, has been extended to many who may in fact meet the refugee definition. Deferred action for childhood arrivals (DACA) has also been another important mechanism for providing humanitarian relief. 

Open Chapter

Idil Atak (Ryerson University, Canada)
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Since the end of 1990s, Canada implemented several measures intended to reduce refugee backlogs, increase the efficiency of the refugee status determination, and share responsibility with “like-minded” countries, such as the United States of America. The federal government hoped to deter asylum seekers and remove refused claimants as soon as possible with a view to protecting the refugee system’s integrity. This chapter will discuss some of the most significant changes in Canada’s asylum policy and process together with their implications for asylum seekers. Although some of the controversial policies were struck down by courts, many remain in force. More specifically, this chapter will discuss the following policy and process changes: the broadening of the statutory grounds for refugee ineligibility, including the 2004 Canada-US Safe Third Country Agreement, and the 2019 ineligibility ground for asylum seekers with a previous claim in a country with which Canada has information sharing agreements; the increasingly restrictive process for refugee admissibility determination (e.g., ministerial interventions); the creation of “Designated Foreign Nationals”, a new class of refugee claimants  (DFN) with restricted rights. Using the conceptual framework of access to justice, the chapter will critically analyse these policies and their implications for asylum seekers. It will argue that they considerably restrict asylum seekers’ access to procedure and, ultimately, to international protection in Canada. The analysis will also focus on the statutory limitations and bars relating to procedural guarantees and review mechanisms available to asylum seekers. 

Deportation Process

United States: The Incredible Shrinking Removal Process
Jaya Ramji-Nogales (Temple University, USA)
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This chapter will explore the diminution of procedural due process in the deportation of non-citizens at the southern border of the United States.  While deportation, or removal, proceedings in the United States have never benefited from the full panoply of procedural safeguards, the chapter will use a full immigration hearing as a benchmark by which to measure subsequent developments.  Beginning with the expedited removal process that was put into place by the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, the chapter will assess procedural shortcuts that have been authorized through federal statutes, regulations, and policies.  More recent innovations to restrict due process in the removal context include the “Migrant Protection Protocols” that are used to return migrants to Mexico pending removal hearings; the application of Title 42, a public health quarantine law, to the exceptionally speedy removal of migrants at the southern border, and the “Asylum Cooperative Agreement” that was used to return migrants to Guatemala, ostensibly to participate in asylum proceedings.   

The chapter will consider parallels with “pushback” operations in Europe, examining the use of such processes as part of the perpetuation of “Fortress Europe.”  This is of course a timely topic in Europe given not only the current weaponization of migrants by Belarus, but also given European Court of Human Rights caselaw on pushbacks at land borders (MH and Others v. Croatia).  The chapter will examine the context of such border pushbacks, including increased access to travel information including through smartphones and other technologies, carrier sanctions, and politicized xenophobia. 

Depending on coverage in other chapters and space constraints, the chapter might encompass “push-backs” at sea, examining the Sale decision in light of Hirsi v. Italy  and ND and NT v. Spain.  Alternatively, the chapter might examine expedited group-based removal processes in the interior of the United States such as Operation Wetback and NSEERs to more fully develop the critical race analysis of border removals.

Zimbabwe and sub-Saharan Africa
Swikani Ncube (University of Johannesburg, South Africa)
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The history of Zimbabwe as a safe haven for refugees and asylum seekers has always been tied to its politics and that of its neighbours. The pre and post-independence trends tell a story that conforms to two phenomena, namely the history of the continent’s quest for liberation, in particularly the activities and transitions in the so-called Front Line States in the Southern African region on one hand; and on the other, the performance of the country’s economy. As a signatory to both the Refugees Convention of 1951 and the OAU Convention Governing Specific Aspects of Refugees, the country’s legal framework is modelled on these two, although reservations were entered in relation to some articles. Zimbabwe’s Refugees Act of 1984 regulates all matters relating to who can be allowed to remain in the country outside the categories regulated by the Immigration Act. With a firmly entrenched encampment policy, Zimbabwe is not a destination of choice for many within the Southern African region and beyond. However, refugees from country’s such as the Democratic Republic of Congo, Burundi and Mozambique still find themselves housed at the country’s sole refugee camp, the Tongogara Camp in the east. Compared to its immediate neighbours in Southern Africa and other countries in sub-Saharan Africa, Zimbabwe has a sound normative framework. However, there is a clear disconnect between policy and practice, and this is also evident in other jurisdictions such as Malawi, Kenya and South Africa. This disconnect is more evident in the context of non-refoulement in instances of a sudden mass influx of asylum seekers. Considering that sub-Saharan countries consider the principle of non-refoulement to be a peremptory norm of international law, such derogation is an indictment on the states involved. Differences can also be observed in relation to deportation pursuant to the withdrawal of one’s refugee status by a competent body. While there is consistency in relation to involvement in serious crime, some countries such as South Africa impose this sanction on refugees who, for example, are found in possession of fraudulent South African identity documents, residency permits or passports. Where one’s application for refugee status has been denied, Zimbabwe’s Refugees Act extends an opportunity to the individual or individuals affected to try and secure asylum in a third country prior to deportation. Such a provision is absent in a number of countries in the sub-Saharan region. Finally, while the determination of who faces deportation and who stays is regulated by law in Zimbabwe and sub-Saharan Africa generally, other considerations, chief amongst them politics and exaggerated concerns about national security also play a significant role. 

Citizenship and Statelessness Law

Asha Kaushal (University of British Columbia, Canada)
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Canada is a settler state, which means its founding is premised on a distinctive blend of colonizing the Indigenous peoples present throughout the territory and nation-building through immigration in the name of its own colonial rulers. This chapter examines citizenship through the lens of the colonizers and the colonized. It contends that British subjectivity, Canadian citizenship, and Indigenous decolonization are background legal structures for the study of citizenship. By unpacking the legal terms of the Canadian settler state, this chapter identifies why Canadian citizenship law looks different from most other Global North states and suggests the value of an historical perspective on citizenship status for settler states. 

Until the Canadian Citizenship Act in 1947, the legal status of Canadian citizenship did not exist. Prior to 1947, courts used the concepts of British subject and citizen only to administer immigration laws. After 1947, Canadian citizenship remained in the wings, informing Canadian law and politics but rarely demanding their attention. The last two decades brought the state to bear on several discrete aspects of citizenship: the place for religion and culture in citizenship ceremonies; the ability to revoke citizenship for those deemed national security threats; and the restriction on transmitting citizenship through multiple generations abroad. 

These laws and policies evoke the restrictionist tendencies of some other states, but the current pressure points in Canadian citizenship law have been fleeting, their laws fewer in number and narrower in breadth, and the ensuing processes of public advocacy, judicial review, and government revision comparatively swift and progressive. In the result, citizenship law in Canada is only moderately more restrictive in form than it was twenty years ago, which is not the case for most other Global North states. Its substantive reach and application, however, is more contentious. This duality is exposed by examining the continuing roles of colonialism in constituting Canadian citizenship. 

The Province of Quebec, a derivation of French colonial power, vies for immigration, citizenship, and integration autonomy within and outside of the Canadian federal structure. Contemporary Citizenship Act amendments continue apace to reinclude the war brides and lost Canadians who were caught in the web of separation from colonial Britain, rendering the resulting patchwork statute nearly illegible. Meanwhile, Indigenous claimants from the United States have twice brought challenge to the very idea of citizenship as governing their constitutional rights in Canada. 

The contemporary citizenship challenges of culture, terrorism, and globalization preoccupy comparativists while they minimize the deeper challenges of colonial history in settler societies. Placing Canadian citizenship in historical perspective illuminates the continuities and breaks between these legal axes. This chapter approaches the duality of Canadian of citizenship—the terms of Canadian citizenship remain relatively liberal while its core is under existential challenge—by considering the background legal structures of citizenship.

Citizenship and Statelessness Law of France
Jules Lepoutre (Università di Corsica Pasquale Paoli, France)
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French nationality law is seen as embodying an inclusive model for immigrants. Such an assertion gives substance to a romantic narrative in which France is presented as a country of immigration, where inclusion is ultimately ensured by nationality law, in return for adherence to the values of the Republic for which long-term residence is the main proxy. Is this really the case? Does this narrative, which originated between the eighteenth and nineteenth centuries, really match the state of the law? This paper examines the latest developments in French nationality law to analyze what remains of the French inclusive model and what has faded away, examining naturalization policy, the situation of ius soli, the deprivation of citizenship, and judicial review. This contribution then demonstrates that although the inclusive model of nationality survives, it is gradually being eroded through contact with the neo-liberal dynamic, creating a restrictive and exclusive turn. 

“The Rich Become What They What, and the Poor Suffer What They Must”: Stratified Migration and Citizenship in Singapore
Jacklyn Ling-Chen Neo (National University of Singapore, Singapore)

Shirin Chua (National University of Singapore, Singapore)
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Immigration in Singapore has always been a lever of economic policy. Economic migration is central to the legal framework regulating immigration in Singapore, with a complex regime that differentiates between unskilled / low-skilled migrant workers, on the one hand, and skilled professionals and technicians, on the other. While the former are treated as temporary migrants, guest workers, if you like, the latter tend to be regarded as potential citizens. As such, unskilled or low-skilled workers only qualify for work visas under the Work Permit scheme, which is designed to be temporary in nature and with no path to permanent residency or citizenship regardless of length of stay. This contrasts with the visa regime for skilled workers and professionals, which provides a path to citizenship. As such, migrant workers not only experience de jure disadvantages due to their immigration status but also de facto disadvantages due to their socioeconomic condition. A further contrast can be drawn with its policies of creating favorable schemes to attract high net worth individuals to reside in the country, offering them an expedited pathway to citizenship. These include a Global Investor Program (GIP) that grants foreign-nationals who invest at least S$2.5 million by setting up a new business entity or expanding an existing business operation or in an investment fund permanent residency, which could lead to citizenship after a few years.

Such benefits-for-visas/citizenship schemes are not unique to Singapore. Neither is its stratified approach towards economic immigration. Accordingly, this chapter examines these stratified approach and analyses these against state rhetoric about citizenship, state-building, and nationhood. It argues that the stratification of migration has tended to serve a populist rhetoric around the primacy of ‘born-and-bred’ citizens, but that the rhetoric has also expanded to garner opposition towards migrant skilled workers from certain jurisdictions as well as resentment towards the ultra-rich. This places the pragmatic immigration policies of the technocratic government in a bind as they seek to straddle the thin line between economic openness and popular support. This article interrogates the contradictions within the state rhetoric on citizenship, and the adverse impact of such contradictions in creating a thick meaning of citizenship in an era of populism.

Open Chapter

Immigration to Israel: An Inclusion/Exclusion Spectrum in a Non-Immigration State 
Tally Kritzman (Boston University, USA)
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The Israeli immigration, asylum and citizenship regime was formed in a staggered, patchwork way, over a period of time stretching from the early days of the State of Israel to recent years. The result is that the legal basis of the Israeli immigration, asylum and citizenship regime is uncodified, but rather can be found in several statutes, dozens of regulations and procedures, and international law obligations, which are often incoherent and inconsistent. The legal structure of Israeli immigration law conveys its self-perception as a non-immigration state: a nation state which is not welcoming to persons who are not a part of the national community.  

At the heart of the immigration regime stands the categorization of migrants and nationals to essentializing categories, based on their nationality, the purpose and manner of their arrival to Israel and other characteristics. These categories can be located along a spectrum of inclusion/exclusion, and maintain strong connections with corresponding categories of the citizenship. On the inclusion end of the spectrum are Jewish migrants and their relatives and descendants, who, under Israel’s unique jus sanguinis citizenship regime, benefit from a significant preference in the ability to immigrate and in the acquisition of citizenship and access to the Israeli welfare state. On the other far end of the spectrum, on the exclusion side, are Palestinians and nationals of some of the Arab countries, who are almost categorically denied of any possibility of immigration to Palestinians and citizens of several other Arab countries.2 This exclusionary policy is correlative to different laws and policies which allow for the relatively easy annulment of the status of Palestinian permanent residents and citizens.3 Along that spectrum, between these two extremes, and closer to the inclusion side, is a category of migrant workers, who are allowed to temporarily migrate to Israel, without a possibility to naturalize, and with a partial access to rights and benefits. Closer to the exclusionary end of the spectrum are also refugees and people in refugee-like situations, who are also only afforded a temporary and often volatile status is Israel, and constantly subject to removal attempts. 

U.S. Nationality Law
Peter Spiro (Temple University, USA)
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This chapter will consider the implications of U.S. citizenship law for migration and mobility. Under international law and consistent with near-universal global practice, US citizenship comes with absolute rights of locational security in the United States. Citizenship thus guarantees immigration rights, at least as a formal matter. It also affords global mobility privileges in terms of visa-free travel through much of the world.  

The US citizenship regime is relatively expansive in global perspective. Famously (although not distinctively), the US adheres to a near-absolute regime of jus soli citizenship. All persons born in the United States, with the minor exception of the children of accredited diplomats, have US nationality from birth, regardless of parental immigration status. Given the large unauthorized immigrant population present in the United States, the jus soli approach importantly eliminates the possibility of intergenerational unlawful immigration status. Many individuals born outside US territory receive citizenship at birth on a jus sanguinis basis. Finally, the US naturalization regime is also relaxed, at least relative to other immigrant-receiving states, especially with respect to integration requirements. It is almost impossible to lose citizenship once conferred, either at birth or through naturalization, which translates into lifetime entry rights regardless of place of residence. Citizenship practices in the US have been largely insulated from the politics of immigration. Although there have been perennial attempts to scale back territorial birthright citizenship, these efforts have failed. Even during the extreme anti-immigrant and erratic Trump presidency, citizenship policy was largely unscathed. 

The chapter will set out a critical perspective on this narrative, which follows conventional, largely self-congratulatory understandings of the US citizenship regime. First, the chapter will highlight arbitrary aspects of territorial birthright citizenship. The approach fixes citizenship at the moment of birth. This appropriately includes many who will become sociological members of the national community. But it excludes all who are born outside of the United States. The result is a large group of citizenship-dispossessed individuals who enter the country at an early age as non-permanent residents, stuck in a limbo world as full sociological members of the community but with no possibility for naturalization. So-called Dreamers are a product of this citizenship mechanism. The jus soli approach is also arbitrarily over-inclusive, allocating citizenship to those born in the United States who develop no affiliation with the community. This phenomenon is most apparent in the context of so-called birth tourism, in which mostly wealthy mothers travel to the United States to give birth by way of affording their children US citizenship. It also plays out through jus sanguinis citizenship, which is also extended to many who have no community connection to the United States. (It is possible to hold U.S. citizenship for life without ever setting foot in the United States.) The result is the acquisition of US citizenship for increasingly strategic purposes keyed to mobility benefits that attach to the status. 

Interior Enforcement Approaches

Lila García (Universidad de Buenos Aires, Argentina)
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Argentina was the first country within Latin America in recognizing a human right to migrate. In doing so in 2003, it also entitled migrants to many social and economic rights regardless their administrative situation, even improving the standards set in international human rights agreements. In addition, the Judiciary was included as a key actor in migration policy to make a balance between refugees and migrants’ rights, on the one hand, and the state’s power to decide ‘who may stay and who must leave’ on the other. 

On those grounds, scholars have argued that since 2003 the very starting point for any migratory policy in Argentina shifted in favor of migrants (Ceriani, 2004; Vior and Bonilla, 2008; García, 2013) or broadly speaking, of persons on the move. This manner, instead of taking the state sovereignty and its overemphasis on discretion to admit, exclude and repel aliens as a founding principle to deal with human mobility (‘the Strasbourg reversal’ -Dauvergne, 2021), now the person itself (its rights, its life plan) may be identified as the Alpha and Omega of migration policies. Thus, this is how Argentina initiated a human rights based trend all over the region by setting an example for other Latin-American countries, in a sort of humanization of migration policies. 

In this chapter I will firstly describe ‘the Argentinean experience’ (the laws and politics of migration started in 2003) emphasizing why such an experience is so critical to set a new starting point to deal with human mobility. Substantive aspects of migration regulations will be considered (grounds for granting residencies, cancellation of residence, detention and removals; the recognition of rights, etc.) together with the enforcement and policy outcomes until 2021: throughout the years, such a human rights-based migration policy has experienced also some setbacks (García, 2017) and only recently it has backed ‘on the (human) right track’ (García, 2021). However, I will uphold that those setbacks are also lessons to learn from and that at the end, the whole experience does contribute to a worldwide regulation on human mobility. 

In addition, I will emphasized the role of courts. In doing so, I will try to answer how the Argentinean State has balanced the ‘human right to migrate’ with the ‘sovereign power to decide whom to…stay and whom to must leave’, and how a key concept such as ‘family reunification’ is taken into account in front of criminal records. 

Cop-speak, immigrant mobilities and racial profiling in the U.S.: How racially disproportionate policing drives immigration enforcement in the U.S.
Mathew Coleman (Ohio State University, USA)
Austin Kocher (Syracuse University, USA)
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Over the past 20 years a rich scholarship on the criminalization of immigration – sometimes called “crimmigration” – has come to occupy center-stage in the broader literature on U.S. immigration policy (Armenta, 2016; Beckett & Evans, 2015; García Hernández, 2015; Stumpf, 2011). This literature insists that law enforcement has come to dominate U.S. immigration policy, whether at U.S. borders or in the U.S. interior, such that the ‘how’ of managing immigration flows is more or less synonymous with broad criminal law enforcement practices including arrest, prosecution, and incarceration (Abrego et al., 2017).

In terms of interior enforcement – that is, immigration enforcement away from U.S. borders and ports of entry, typically in places where immigrants are settled – the criminalization of immigration enforcement has entailed the devolution of the power to detain individuals on immigration grounds to an array of non-federal police agencies, partnered with federal immigration authorities. For example, now well-known programs such as §287(g) and Secure Communities, among others, work by enrolling state and local police in immigration enforcement, and by attaching immigration consequences to routine police-civilian interactions mostly focused on driving infractions. Indeed, although the U.S.-Mexico border is without doubt the key landscape in U.S. immigration policy, the devolution of immigration enforcement and the new focus on immigrant labor and social reproduction has, since 9/11, birthed and normalized a second key immigration enforcement landscape: U.S roadways. For undocumented immigrants in the U.S., the simple act of driving to work or to do groceries can result in a traffic stop, an immigration query, incarceration on civil immigration charges, and eventual removal from the country. As such, roads are now as much about the potential threat of immigrant immobilization as they are about immigrant mobility per se.

This new reality has put pressure on critical scholars to come up with ways to investigate and evaluate immigration enforcement in relation to immigrant automobility (Coleman, 2016; Coleman & Stuesse, 2014, 2016; Stuesse & Coleman, 2014). And as a result, most critical scholarship on U.S. immigration enforcement now engages squarely with the problem of racial profiling, i.e. the police surveillance of drivers on account of their purported race and/or ethnicity (Glaser, 2015; Harris, 2002). Indeed, proving the existence of racial profiling has become something of a gold standard for scholars working on §287(g) and Secure Communities (Arnold, 2007; Coleman & Kocher, 2019; García Hernández, 2009; Johnson, 2004, 2010; Romero, 2006; Sullivan, 2008).

Our goal in this chapter is to bring to light pronounced difficulties related to proving racial profiling in academic research on immigration enforcement, by reflecting on both our fieldwork findings and on more general methodological practices. We are indeed suspicious of accepted ‘best’ methodological practices in criminology, related to proving racial profiling, and which are readily used by critical scholars to talk about the ‘how’ of programs like §287(g) and Secure Communities. Using these ‘best’ practices to prove racial profiling is no easy matter in large part, as we argue, because they constitute ‘police science’, i.e. science in the service of the police. The bulk of our analysis focuses on how chasing the “gold standard” of racial profiling leaves racially discrepant policing on the table as an apparently unproblematic, or perhaps even defensible, outcome of policing – and that critical scholars should instead focus on the problem of racially discrepant or disproportionate police practices (Epp et al., 2014) and, in particular, on the routine devaluation of non–White spaces in police work, when striving to talk about the police—race—immigration trifecta.  

United States: The Amorphous Border: Deputization, Privatization, and Racialization
Jennifer Chacon (University of California – Berkeley, USA)
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This contribution to the volume will explore immigration enforcement in the interior of the United States.

Part I will provide an overview of the evolution of interior immigration enforcement: from a state to a federal responsibility (and partially back again); and from infrequent and episodic to pervasive and diffuse.  This part identifies two critical pivot points in immigration enforcement: the post-Civil War era, when the immigration enforcement system formally became a federal responsibility, and the era after September 11, 2001, when federal power was increasingly shared with, seized by, or foisted upon state and local governments. 

Part II will highlight some of the defining characteristics of contemporary interior immigration enforcement in the U.S.  This Part will focus on three important characteristics of immigration enforcement in the interior of the United States.  The first is deputization.  This includes the deputization of state and local officials discussed in Part I, but it also includes the deputization of private actors – most importantly employers – as immigration enforcement agents.  The second is privatization.  The surveillance and detention regimes at the heart of contemporary interior enforcement efforts are increasingly carried out by private companies with governmental contracts.  Many of those companies profit off of the enforcement regime.  The third characteristic – one that has been a constant of U.S. immigration enforcement – is racialization.  The interior immigration enforcement model in the U.S. relies on a set of deeply embedded assumptions about the appropriate targets of immigration enforcement, and these assumptions draw from and perpetuate social and legal constructions of racial categories.  

Part III will explore the connections between interior and border enforcement in the United States.  This Part details how the enforcement models and logics used against arriving immigrants at the border shape the experience of long-time residents that encounter the nation’s enforcement machinery. 

Part VI. Comparative Issues in the Treatment, Rights, and Privileges of Migrants

Detention Policy and Practice

United States
César Cuauhtémoc García Hernández (Ohio State University, USA)
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Detention is a central component of contemporary immigration law enforcement in the United States. Multiple units of the nation’s federal government employ tens of thousands of law enforcement officers tasked with identifying people who might be in violation of immigration laws. Together with their partners in local law enforcement agencies across the country, they regularly take into custody people suspected of being removable from the United States. In other instances, migrants are confined pending prosecution for crimes inextricably linked to migration. Indeed, people charged with one of the two most frequently tapped federal crimes, unauthorized entry and unauthorized reentry, regularly experience detention pending prosecution more than people suspected of other types of federal crimes.

Tapping the power of civil immigration law and criminal law penalizing certain migration activity, federal law gives immigration officials remarkable power to detain migrants. Once apprehended, migrants are held in an expansive network of secure facilities stretching from the urban corridors of the Northeastern United States to the rural reaches of the Southwest. The Immigration and Customs Enforcement agency, part of the U.S. Department of Homeland Security, and the U.S. Marshals Service and Bureau of Prisons, both part of the U.S. Department of Justice, utilize a diverse set of institutions to detain migrants. This network of immigration prisons includes facilities owned and operated by local governments alongside sites that are owned or operated by private corporations. Inside, a similarly diverse array of people is deprived of their liberty. From longtime residents of the United States who have the government’s permission to live and work in the country to newcomers in search of asylum, immigration prisons confine adults traveling alone and families traveling together.

This chapter addresses the growing use of detention to enforce immigration laws in the United States, its grounding in multiple sources of legal authority, the immense law enforcement bureaucracy that operationalizes immigration detention, and key features of detention as experienced by confined migrants.

The Legalities of Immigration Detention in Australia, the United Kingdom and Canada
Rayner Thwaites (University of Sydney, Australia)
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Australian constitutional constraints on immigration detention derive from the separation of judicial power, rather than any express constitutional or statutory rights. The chapter charts the hopes and disappointments of this indirect, institution oriented, form of rights protection as it has operated in Australia.

The Australian regime of mandatory immigration detention has been characterised by lengthy and harsh detention, significant suffering on the part of the detainees, and a high level of political indifference to their situation. The constitutional parameters within which Australian immigration detention occurs are outlined, and the extent to which they have impinged upon the practice assessed.

The chapter focuses on the length of time spent in immigration detention, a matter in which Australia’s statistics are extreme. It looks back at the arc of constitutional immigration detention jurisprudence beginning with Lim’s case (1992), the first High Court decision on mandatory immigration detention, and ending with its decision in AJL20 in 2021. Lim’s case provided for potential limits on the temporal duration of immigration detention. This potential, modest as it was, has been largely unrealised. The jurisprudence’s nadir is widely perceived to the High Court’s decision in Al-Kateb (2004), in which a majority of the Court upheld indefinite immigration detention. Decisions in the 2010s had raised hopes that constitutional limits on immigration detention derived from the separation of powers were being reinvigorated and would do real work in constraining its duration. AJL20 has done much to disappoint those hopes.

The chapter ends by looking at a 2022 decision that represents the strengths of the separation of powers jurisprudence as an indirect mode of rights protection. But to find those strengths we have to leave immigration detention behind. In Alexander’s case the High Court invalidated a ministerial power of citizenship deprivation. The reason for analysing a deprivation case in a chapter on immigration detention is that the Court applied and developed separation of powers reasoning drawn from the immigration detention jurisprudence, notably Lim’s case, to invalidate the deprivation power.

I argue that together AJL20 (2021) and Alexander’s case (2022) serve to dramatize the role that citizenship status, and its absence, play in the Australian separation of powers jurisprudence on immigration detention. These decisions suggest that Australian constitutional doctrine has seen the liberty secured by the separation of powers effectively tied to citizenship status, given the capacious vulnerabilities of unauthorised non-citizens. While unauthorised non-citizens remain ‘legal citizens’, able to bring actions in the courts, authority to detain remains relatively impervious to legal challenge due to their exclusion from substantive rights protection with respect to personal liberty.

Alienage Law

United States
Stella Burch Elias (University of Iowa, USA)
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In the constitutional, statutory, and case law of the United States, so-called “alienage laws” play a unique role. The United States Constitution does not expressly define the scope of federal power to regulate immigration.  But in the late nineteenth century, a series of United States Supreme Court cases delineated federal and state responsibility for regulating the lives of immigrants. The Court’s division of responsibility, which endures to this day, is predicated on a distinction between “immigration law” and “alienage laws.” “Immigration law,” is legislation governing the selection, admission, and exclusion of noncitizens enshrined in the federal Immigration and Nationality Act (“INA”).  These laws full within the exclusive purview of the federal government, which enjoys vast or “plenary” power in this area. In contrast, “alienage laws,” which are laws that determine the rights, privileges, and obligations of non-citizens present in the United States, can, according to the same longstanding doctrine, be enacted by either the federal government or the states. The Chapter will consider the myriad ways in which immigration federalism in the United States has shaped and is reflected in its current array of alienage laws, with a particular emphasis on the United States Supreme Court’s doctrines clarifying  what rulemaking by state and local lawmakers constitutes impermissible “immigration” legislation and what constitutes permissible “alienage” legislation.

European Union
Kevin-Fredy Hinterberger (Universitat Wien, Austria)
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(to come)

Nationalism, Religious Discrimination, Racism, and Xenophobia

Ahmet İçduygu (Koç Üniversitesi, Turkey)
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(to come)

Eleanor Marie Brown (Penn State University, USA)
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(to come)

Migrant Integration and Assimilation Policy

Latin America
Luisa Feline Freier (Universidad del Pacífico, Peru)
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Latin America boasts some of the most progressive immigration & refugee laws worldwide, which in theory provide expansive access to legal status and socio-economic rights, as well as non-discrimination and special inclusion. Nevertheless, the experience of different groups of voluntary and forced migrants across the region has shown barriers to socio-economic integration and cultural “assimilation” in recent years, specifically in the context of the COVID-19 pandemic. What is more, discrimination based on nationality, gender & sexual orientation, ethnicity & race, have become increasingly prominent and resulted in violence in some cases. This chapter provides an overview of these developments and then focuses on the analysis of implementation gaps between rights extending legislation, and policies that have thus far largely failed to counteract lacking integration and increasing discrimination in practice. Based on this analysis, the chapter provides room for further research.

Deisy de Freitas Lima Ventura (Universidade de São Paulo, Brazil)
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Along with Argentina, Brazil has historically been a major destination site for millions of immigrants in Latin America. In the second half of the 20th century, ongoing flows stemming mostly from neighboring countries in the region (Bolivians, Paraguayans and Peruvians) led to successive so-called migration “amnesties” to undocumented migrants and entailed international agreements in the Mercosur region to facilitate the regulation of steady flows between South American countries.

Internally, the country has managed to pass important pieces of legislation, underlining the recognition of human rights of migrants and refugees. The 1997 Law on Refugees, which defined the terms to implement the 1951 Refugee Convention, and the latest 2017 Law on Migration, which replaced the former Foreigners’ Statute from the dictatorial regime, have both updated the legal framework addressing the status of non-nationals in the country, aligning with international agreements and the 1988 Federal Constitution.

However, due to overall underfunded social policies, coupled with cycles of poor economic performance, contemporary migrants and refugees, estimated at over 1 million people — tend to attain unsatisfying living standards. Such conditions are likely to aggravate, as the Brazilian government has recently introduced serious economic austerity policies, aiming to set caps on the budget of public services, such as education and healthcare, as foreseen by the Constitution.

The Covid-19 pandemic and its unfolding impacts have also taken a toll on the living conditions of migrants and refugees in Brazil. Amid one of the worst responses to the pandemic, which officially took the lives of over 600 thousand people, the federal government, led by the populist Bolsonaro administration, issued a series of decrees ruling over the transit of foreigners and the border controls, which specifically discriminated against Venezuelans, banning their entry into the country even when they presented a residence permit and allowing summary deportations. Such measures violate the Brazilian legislation and international treaties and signal the strategy to use the exceptional circumstance of the pandemic to jeopardize protective migration law.

On a brighter note, local initiatives in the migratory hubs of the country, namely the great urban areas of Sao Paulo and Rio de Janeiro, have paved the way for a more mature migration governance at different tiers of government, combined with the timely expertise from international organizations on the field (mainly IOM and UNHCR) and a lively network of grassroots organizations. Their articulation is likely to give substance to the legal provisions of the national laws and make Brazil a more hospitable territory to the multidirectional flows of contemporary migration.

Tong Yuying (Chinese University of Hong Kong, China)
Jiang Niantao (Chinese University of Hong Kong, China)
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Previous literature of China’s migrant integration and assimilation has predominately focused on internal migration given the large number of people involved and its significance in affecting people’s life. In contrast, little attention has been paid to immigrant integration from other countries to China. One of the reasons is that the number of immigrants is rather small compared with the native-born population in China. Given its large population and homogenous racial group, China has adopted a strict control policy for the entry of immigrants. For a long time, only a very selected high-talent group who can meet the national development demand has the opportunities to stay legally in China for an extended time period, and the chance to change to permanent resident status is very slim for any immigrants. As a result, there was very limited policy to promote immigrant integration, as it is expected by both the government and the immigrants that their stay in China is temporary.

However, in the past two decades, despite that it still only consists a very small fraction of Chinese population, the size of immigrants in China has been rapidly rising. The 2010 census included the foreign citizen in its data collection for the first time, and it was reported that there were over 1 million foreign people in China, a figure that generally believe to be lower than the actual number of immigrants. Afterwards, the Exit-Entry Administration Law of the People’s Republic of China adopted in 2012 systematically addressed the issues of exit, entry, stay, residence, expulsion, and refugee status of foreigners. The new law since then has been implemented to manage the gradually diverse immigrant group in China. In 2018, the National Immigration Administration was established, with one of the major duties to be the management of various issues related to immigrants in China.

In general, immigrants in China could be classified into the following groups. The first group is the talent groups who often possess the high-level skills that China needs, or the high-educated businessperson. Among them, many have Chinese origins, but become naturalized citizens in other developed countries. The second group is university students who have been attracted by Chinese government to study in China with an aim to boost China’s influence and soft power in other countries, especially in the courtiers along the Belt and Road Initiative. The third group of people are low skilled people, and there is a large group of them from African countries, and many of them are over-stayers. The fourth group is female marriage migrants, who often come from Southeast Asia countries by human trafficking and are forced to get married with poor Chinese men in rural area. In general, the purpose of immigration policy in China is to manage the immigrants in both size and spheres to work in China. Little effort has been made to increase the integration of immigrants. For the highly educated group, they often come for economic gain and enjoy privileges in their life standard and social circles based on their work, and Chinese governments and those highly skilled talent lack of intention in the integration with Chinese societies. For students, they are expected to return to their home countries upon finishing their study as they are largely excluded in the labor market. For the last two groups, the government takes very strict measure to manage their increase in size and status of stay, and they often face discrimination from both Chinese residents and various social institutions.

Therefore, immigrants in China lack of opportunities in the integration by its “top-level” policy design, and the goal of government to immigrants are still focusing on management and reduce the dissatisfaction from Chinese local citizens about the “super national treatment” to certain immigrant group. With the increased size of immigrants in the near future, and the necessities of attracting immigrants due to it is aging population and shrinking of labor forces in China, it is time to adopt and develop an appropriate integration policy to help the integration of immigrants and increase their sense of belonging in the Chinese society.

European Union
Nevena Nancheva (Kingston University, UK)
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  1. The first thing that needs to be said about EU policies on migrant integration is that they concern third-country nationals only: EU nationals moving between Member States do not fall under the migrant integration governance, even if their movement may be interpreted as migration if it is permanent or semi-permanent (e.g. Eurofund 2021). This distinction is rooted in the nature of the European project.
  2. While the EU has always distanced itself from assimilation as a policy and has instead focused on ‘integration and inclusion’ (Action Plan on Integration and Inclusion 2021-2027), issues of inequality inherent in migrant integration governance remain to be discussed.  
  3. The development of EU migrant integration policies over the past 22 years (since the Treaty of Amsterdam and the ensuing Tampere Programme in the field of justice and home affairs laid the foundation for EU’s non-discrimination framework concerning third-country nationals) needs to be contextualised in terms of the development of EU treaty law, as well as of political developments (such as the 2015 migration policy crisis).  
  4. Engagement between three policy levels needs to be discussed (EU level, national level and local and regional level), and across various sectors (healthcare, education, housing, culture).  
  5. Funding priority for the EU. 
  6. Critical analysis of the strategy. 

United States
Ming Hsu Chen (University of California College of Law, San Francisco, USA)
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The integration of immigrants is a subject of growing interest in scholarly and policy discussions that aim to go beyond repairing the exclusionary immigration laws of the last several years to building a more inclusionary society. This chapter will summarize key concepts of citizenship, their relationship to immigrant integration, and the U.S. immigration laws and policies that impact integration outcomes. It will then present empirical data, both quantitative and qualitative, from social scientists about the effect of these concepts laws and policies on various integration outcomes. It will conclude with discussion about competing proposals for the improvement of these outcomes.

The chapter begins with a description of formal citizenship. Acquisition of U.S. citizenship is a key indicator of legal integration. In the U.S. citizenship is attained at birth or by naturalization. There are separate paths for noncitizens in the military and refugees.

Supplementing formal citizenship, the chapter describes several facets of substantive integration. The chapter highlights four of interest to social scientists: social, economic, civic / political, and cultural. Social integration is the focus of sociologists who write about social citizenship or substantive belonging; it may also include spatial integration, measures of intermarriage, criminality, or disparities among racial minorities. Economic integration is the province of economists who discuss the contributions of immigrants to the U.S. and the effect of policies on the jobs, skills, and wages of immigrants. This measure may also include eligibility for health care and other welfare benefits. Political integration is defined broadly to include voting and political representation. Civic engagement encompasses activities not reserved to citizens, such as expressing views, joining social movements, writing to representatives, and other engagement with institutional politics. It may also involve consideration of dual nationality.

The chapter closes by discussing areas of contestation. Contemporary policy disputes focus on institutional responsibility for promoting integration. Historically, the U.S. government has taken a laissez faire, or hands-off approach, toward integration for most immigrant groups (with the exception of refugees). States and nongovernmental organizations have played a larger role in the integration – or disintegration – of immigrants. Another controversy focuses on the scope of integrative efforts. The U.S. focuses on formal integration. There have been calls to make the scope of integration more robust, but they have been left to voluntary efforts. Another disagreement about scope is whether too much (cultural) integration can be coercive. Social scientists who study immigrant integration also disagree about the weight of the indicators of integration and whether the time period of integration should extend across generations.

The chapter concludes with a comparison of integration in the US and other countries.