| Peer-Reviewed

‘As It Was in the Beginning’: An Examination of the Convergence, Divergence and Dilemmas of Immigration Practices in Some Selected liberal Democratic States

Received: 13 February 2020     Accepted: 11 March 2020     Published: 28 May 2020
Views:       Downloads:
Abstract

This paper holds the view that the burgeoning phenomenon of immigration control sits uncomfortably on the fault line separating the prerogatives of State sovereignty from the rights of non-citizens regardless of the broad discretion of States to control immigration. Using liberal democratic ideologies, the paper expresses that, there is in existence, a tension between the right to liberty of migrants against the broadly unfettered rights of States to control the admission and expulsion of migrants conferred on States by national and international law. Drawing from law and policy, this paper considers in perspectives, immigration practices in selected liberal democratic states-the United States of America, Australia and France whose deportation reality offers significant similarities with the UK in immigration control and detention pending expulsion. Finding as it did, the paper illustrates that crimmigration in particular and immigration enforcement and control in general, serve as vehicles for enhancing and sustaining expulsion of migrants. This practice, it is argued, queries the liberal democratic ideals of fairness in particular and compliance to international human rights standards in general.

Published in International Journal of Law and Society (Volume 3, Issue 2)

This article belongs to the Special Issue Immigration Control, Citizenship, the Interplay of Sovereignty and the Vicissitudes of the Hostile Environment

DOI 10.11648/j.ijls.20200302.14
Page(s) 68-77
Creative Commons

This is an Open Access article, distributed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted use, distribution and reproduction in any medium or format, provided the original work is properly cited.

Copyright

Copyright © The Author(s), 2020. Published by Science Publishing Group

Keywords

Expulsion, Crimmigration, Detention, Liberal Democracy and Sovereignty

References
[1] Flynn, M. (2012). Who must be detained? Proportionality as a tool for critiquing immigration detention policy. Refugee Survey Quarterly, 31 (3), 40-68.
[2] Goodwin-Gill, G. S. (1975). The limits of the power of expulsion in public international law. British Yearbook of International Law, 47 (1), 55-156.
[3] Gibney, M. J., & Randall Hansen, R. (2003). Deportation and the liberal state: the forcible return of asylum seekers and unlawful migrants in Canada, Germany and the United Kingdom. Oxford: United Nations Office of the High Commissioner for Refugees.
[4] Plattner, M. F. (2010). Democracy's Past and Future: Populism, Pluralism, and Liberal Democracy. Journal of Democracy, 21 (1), 81-92.
[5] Smith, R. (2010). Constitutional Democracy, Coercions and Obligations to Include. In the Limits of Constitutional Democracy by Jeffrey Tulis and Stephen Macedo (eds), 37. Princeton University Press) 280.
[6] Ramcharan, B. G. (2011). The fundamentals of international human rights treaty law. Brill.
[7] Groenendijk, C. A., Guild, E., & Dogan, H. (1998). Security of residence of long-term migrants: A comparative study of law and practice in European countries. Council of Europe.
[8] Cosmas Ukachukwu Ikegwuruka, The Legality of Deportation and the Removal of Migrants in the United Kingdom within the context of Liberal Democracy (Scholars’ Press 2018) 95.
[9] Helena Wray, ‘The Aliens Act 1905 and the Immigration Dilemma’ (2006) 33 Journal of Law and Society 302, 303; for further information about this Act see the following Ann Dummet and Andrew Nicol, Subjects, Citizens, Aliens and Others: Nationality and Immigration Law (Weidenfield and Nicolson 1990) 27; T. W. E Roche, The Key in the Lock: A History of Immigration Control in England from 1066 to the Present Day (1st edn, John Murray Publishers Ltd 1969) introductory pages; Robert Winder, Bloody Foreigners: The Story of Immigration to Britain (Little Brown 2004) 1-15, 192.
[10] Robert French, ‘The Role of the Courts in Migration Law’ (Migration Review Tribunal and Refugee Review Tribunal Annual Members’ Conference 25 March 2011) 10.
[11] A typically non-white immigration policy as explained in Herbert Ira London, Non-white immigration and the “White Australia” policy (New York University Press, 1970) 11 cited in Robert French, ‘The Role of the Courts in Migration Law’ ibid, 6.
[12] The Migration Act 1958 (Cth) s 6, s 12 and s 22.
[13] Federation For American Immigration Reform, ‘History of U.S. Immigration Laws: Historical Immigrant Admission Data; 1821-2006’accessed 24 February 2019.
[14] The Immigration Nationality Act (INA) 1952 accessed 15 December 2019.
[15] Warren R Leiden and David L Neal, ‘Highlights of the U.S. Immigration Act of 1990’ (1990) 14 (1) Fordham International Law Journal 328, 329.
[16] See the Illegal Immigration Reform and Immigrant Responsibility Act 1996, s 305, s 307, s 321.
[17] See the Illegal Immigration Reform and Immigrant Responsibility Act 1996 s 321, s 324.
[18] Labour Inspector accessed 04 May 2015.
[19] Police National accessed 04 May 2016.
[20] Virginie Guiraudon, ‘Immigration Policy in France’ Brookings accessed 06 May 2017.
[21] Immigration Laws in France (by A J) accessed 27 February 2012.
[22] Eleonore Kofman, Madalina Rogoz and Florence Lévy, ‘Family Migration Policies in France’ (2010) International Centre for Migration Policy Development 1, 6.
[23] Liza Schuster, ‘Turning Refugees into illegal migrants: Afghan Asylum seekers in Europe’ (2011) 34 Ethnic and Racial Studies 1392, 1393, in this paper Schuster looked at impediments to the expulsion of Afghanistan nationals from France owing to refusal of the country to readmit them.
[24] Sev Ozdowski, ‘The Law, Immigration and Human Rights: Changing the Australian Immigration Control System’ (1985) 19 International Migration Review 535, 537 accessed 24 February 2018.
[25] Migration Act 1958 (Cth) s 7 (1).
[26] Migration Act 1958 (Cth) s 51A-s 64.
[27] Savitri Taylor, ‘From Border Control to Migration Management: The Case for a Paradigm Change in the Western Response to Transborder Population Movement’ (2005) 39 (6) Social Policy and Administration 563, 570.
[28] Bridget Anderson, “Illegal Immigrant”: victim or villain (2008) 64 ESRC Centre on Migration and Policy Working Paper 73, 3.
[29] Steve Peers, ‘Free Movement, Immigration Control and Constitutional Conflict’ (2009) 5 European Constitutional Law Review 173, 173.
[30] Treaty on European Union, Art 6.
[31] Tim Finch, ‘Immigration under Labour’ (Prospect Institute for Public Policy Research 2010) 9 www.prospect-magazine.co.uk accessed 07 April 2018.
[32] Nicholas De Genova, ‘Migrant “Illegality” and Deportability in everyday life’ (2002) 31 Annual Review Anthropology 419, 425.
[33] See Immigration Act 1972, Sch 2 on detention and deportation.
[34] Connor Johnson, ‘Indefinite Immigration detention: can it be justified?’ (2009) 23 J. I. A. L 351, 352.
[35] Alice Bloch and Liza Schutter, ‘At the extremes of exclusion: Deportation, detention and dispersal’ (2005) 28 Ethnic and Racial Studies 491, 499.
[36] The 1971 Act, Sch 2, paras, 8, 9, 16 (2) as amended by the 1999 Act, s. 140 (1), cf The.
[37] Immigration Rules para 2 HC 395 as a corollary to the Act. [1995] Imm AR 348 (Leggatt LJ).
[38] See the Nationality, Immigration and Asylum Act 2002, s 62
[39] J F Hollifield, V F Hunt and D J Tichenor, ‘The Liberal Paradox: Immigrants, Markets and Rights in the United States’ (2008) 61 (1) SMU Law Review 67, 72.
[40] This can be found at 8 USC. A 123 (a) (6); (8 USC Chapter 12-Immigration and Nationality) http://www.law.cornell.edu/uscode/text/8/chapter-12 accessed 21 September 2012.
[41] Stephanie Silverman, ‘Immigration Detention in America: A History of its Expansion and a Study of its Significance’ (2010) Centre on Migration, Policy and Society Working Paper 80, 13.
[42] T Miller, ‘The Impact of mass incarceration on immigration policy’ in M. Mauer and M. Chesney-Lind (eds) Invisible Punishment: The Collateral Consequences of Mass Imprisonment (New Press 2002) 214-238.
[43] A E Loughran, ‘Congress, Categories and the Constitution-Whether Mandatory Detention of Criminal Aliens Violates Due Process’ (2003-2004) 18 (4) Georgetown Immigration Law Journal 681, 696.
[44] Ralph Grillo, ‘”Saltdean can’t cope” protests against asylum seekers in an English seaside surb’ (2005) 28 (2) Ethnic and Racial Studies 235, 237.
[45] Daniel Kanstroom, ‘Criminalising the undocumented’ (2004) 29 North Carolina Journal of Int'l Law and Commercial Regulation 639, 640.
[46] (2004) 208 ALR 124.
[47] Sections 189, 196 and 198 of the Migration Act 1958.
[48] Migration Act 1958, s 183.
[49] A v Australia, HRC Case No 560/1993, para 9.4; see also C v Australia, HRC Case No. 900/1999; Report of the Working Group on Arbitrary Detention (24 October, 2002) UN Doc. E/CN. 4/2003/8/Add. 2.
[50] Woolley &Anor; Ex parte Applicants M276/2003 by their next friend GS (M276/2003) [2004] HCA 29, 7 October 2004.
[51] Mahran Behrooz v MIMIA, Attorney-General of the Commonwealth of Australia, Australasian Correctional Management Pty Ltd and Australasian Correctional Security Pty Ltd, 6 August 2004.
[52] Ophelia Field and Alice Edwards, ‘Alternatives to Detention of Asylum Seekers and Refugees’ (2006) UNHCR Legal and Protection Policy Research Series Polas/2006/03 accessed 25 September 2019, 102; see also HREOC, ‘A last resort?’The National Inquiry into Children in Immigration Detention, Executive Summary, April 2004, para 1.
[53] See Article L-521-2 of the Administrative Justice Code.
[54] Saadi v UK [2008] 47 EHRR 17, para 65.
[55] Helen O’Nions, ‘Exposing the flaws in the Detention of Asylum Seekers: A critique of Saadi’ (2008) 17 Nottingham Law Journal 34, 42, for general discussions regarding the ‘presence’ of asylum seekers and refugees, see Rosemary Sales, ‘Welfare for asylum seekers in Britain’ (2002) 22 Critical Social Policy 456, 459.
[56] Rusu v Austria App No 34082/02 (ECtHR 2 October 2008).
[57] Cathryn Costello, ‘Human Rights and the Elusive Universal Subject: Immigration Detention Under International Human Rights Law and EU Law’ (2012) 19 Indiana Journal of Global Legal Studies 257, 286.
[58] 538 US 510 (2003).
[59] J K Doucleff, ‘Denmore v Kim: Upholding the Unnecessary Department of Legal Permanent Residents, Supreme Court Review’ (2003) 94 Journal of Criminal Law and Criminology 625, 650.
[60] K Beyens and S Snacken, ‘Prison Privatisation: An International Overview and the Debate’. (Prison 2000 Conference, University of Leicester 8-10 April 2000) 5.
[61] T. Newburn, ‘Atlantic Crossings: “Policy transfer” and crime control in the United States and Britain’ (2002) 4 (2) Punishment and Society 165, 194.
[62] D. Garland, The Culture of Control: Crime and Social Order in Contemporary Society (OUP 2001).
[63] T. Jones and T. Newburn, ‘Comparative Criminal Justice Policy Making in the United States and the United Kingdom: The Case of Private Prisons’ (2005) 45 British Journal of Criminology 58, 60.
[64] Al James and others, Privatising Prisons: Rhetoric and Reality (Sage 1997); A Coyle, A Campbell and R Neufeld (eds) Capitalist Punishment: Prison Privatisation and Human Rights (Zed Books 2003).
[65] S J A Talvi ‘It Takes a Nation of Detention Centres to Hold Us Back’ Interview with Michael Welch, Associate Professor of Criminal Justice at Rutgers University Lip Magazine (21 January 2003).
[66] Nora V. Demleitner, ‘Immigration Threats and Rewards: Effective Law Enforcement Tools in the "War" on Terrorism’ (2002) 51 EMORY Law Journal 1059, 1059.
[67] Juliet P. Stumpf, ‘Doing Time: Crimmigration Law and the Perils of Haste’ (2011) 58 UCLA Law Review 1705, 1710.
[68] See UK Borders Act 2007, s 32 and 33.
[69] Explanatory Notes to the UK Borders Act 2007.
[70] See UK Borders Act 2007 s 33 (2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach—(a) a person's Convention rights, or (b) the United Kingdom's obligations under the Refugee Convention. (3) Exception 2 is where the Secretary of State thinks that the foreign criminal was under the age of 18 on the date of conviction.
[71] Section 55 of the Borders, Citizenship and Immigration Act 2009 provides for the duty regarding the welfare of children which mirrors Article 3 (1) of UN Convention of the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) UNTS 1577 (CRC).
[72] Rocky Gurung v SSHD [2012] EWCA Civ 62; SS (Nigeria) v SSHD [2013] EWCA Civ 550; AJ (Bangladesh) v SSHD [2013] EWCA Civ 493; Richards v SSHD [2013] EWCA Civ 244.
[73] Stephen H. Legomsky, ‘The New Path of Immigration Law: Asymmetric Incorporation of Criminal Justice Norms’ (2007) 64 Walsh and Lee Law Review 469, 1727.
[74] See the United Kingdom’s 1971 Act, the 2009 Act, the 2004 Act and the 2007 Act.
[75] Cf. the U.S.’s sections, 101 and 237 of the Immigration and the Nationality Act 2006 and section 108 of the Illegal Immigration Reform and Responsibility Act 1996.
[76] IIRIRA increased deportations by the expansion of categories of migrants subject to deportation; see J Ryan Moore, ‘Reinterpreting the Immigration and Nationality Act’s Categorical Bar to Discretionary Relief for “Aggravated Felons” in Light of International Law: Extending Beharry v Reno’ (2004) 21 Arizona Journal of International and Comparative Law 535, 537; see also Jacqueline Hagan, Brianna Castro & Nestor Rodriguez, ‘ The Effect of U.S. Deportation Policies on Immigrant Families and Communities: Cross-Border Perspectives’ (2009-2010) 88 North Carolina Law Review 1799, 1800.
[77] See the Explanatory Note to the UK Borders Act 2007, Part 5.
[78] See Secretary of State for the Home Department, ‘Memorandum to the Home Affairs Committee: Post-legislative Scrutiny of the UK Borders Act 2007 (Cm8459 October 2012)
[79] See commentaries by Jacqueline Hagan, Karl Eschbach & Nestor Rodriguez, ‘U.S. Deportation Policy, Family Separation and Circular Migration’ (2008) 42 International Migration Review 64, 65; Nancy Morawetz, ‘Understanding the Impact of the 1996 Deportation Laws and the Limited Scope of Proposed Reforms’ (2000) 113 Harvard Law Review 1936, 1955.
[80] See Immigration Act 1971, s 3 (5) (a) and the UK Borders Act 2007, s 32 (4).
[81] Elizabeth C Borja, ‘Brief Documentary History of the Department of Homeland Security 2001 – 2008’ (Homeland Security-History Office) accessed 13 December 2013.
[82] See Home Office UK Border Agency, ‘Our work in your region’ accessed 13 December 2013.
[83] Alan Watson, Legal Transplants: An Approach to Comparative Law (2nd edn, University of Georgia Press, 1993) 29 (Legal transplant- a movement of a system of law from one country to the other usually a diffused law); David Dolowitz, Stephen Greenwold and David Marsh, ‘Policy Transfer: Something Old, Something New, Something Borrowed, But Why Red, White And Blue?’ (1999) 52 (4) Parliamentary Affairs 719, 720.
[84] Cf. section 33 of the 2007 Act with decisions in Rocky Gurung v SSHD, SS (Nigeria) v SSHD and AJ (Bangladesh) v SSHD.
[85] Nancy Morawetz, ‘Understanding the Impact of the 1996 Deportation Laws and the Limited Scope of Proposed Reforms’ (2000) 113 Harvard Law Review 1936, 1943.
[86] See comments by Jennifer Chacon, ‘A Diversion of Attention? Immigration Courts and the Adjudication of Fourth and Fifth Amendment Rights’ (2010) 59 Duke Law Journal 1563, 1571.
[87] Jennifer Lee Koh, ‘Waiving Due Process (Goodbye): Stipulated Orders of Removal and the Crisis in Immigration Adjudication’ (2012-2013) 91 North Carolina Law Review 475, 481.
[88] Peter L. Markowitz, ‘Deportation is Different’ (2010-2011) 13 University of Pennsylvania Journal of Constitutional Law 1299, 1302.
[89] Section 12 of the Migration Act 1958 was amended by section 10 of the Migration Amendment Act 1983.
[90] Michelle Foster, ‘An “Alien” By the Barest of the Threads”-The Legality of the Deportation of Long-Term Residents From Australia’ (2009) 33 Melborne University Law Review 483, 507.
[91] Clemence Richard and Nicolas Fischer, ‘A legal disgrace? The retention of deported migrants in contemporary France’ (2008) 47 Social Science Information 581, 590.
[92] See Code de l’entrée et du sejour des etrangers et du droit d’asile [Code on the Entry and Stay of Foreigners and on the Right of Asylum] (France) art L521-3 [Nawaar Hassan trans] cited in Michelle Foster, ‘An “Alien” By the Barest of the Threads”-The Legality of the Deportation of Long-Term Residents From Australia’ (n1304); see also Cimade, ‘Centres et locaux de retention administrative, Rapport 2007 (2008) cited in Clemence Richard and Nicolas Fischer, ‘A legal disgrace? The retention of deported migrants in contemporary France’ (2008) 47 Social Science Information 581, 598.
Cite This Article
  • APA Style

    Cosmas Ikegwuruka, Ugonna Chimnonyerem Nkwunonwo. (2020). ‘As It Was in the Beginning’: An Examination of the Convergence, Divergence and Dilemmas of Immigration Practices in Some Selected liberal Democratic States. International Journal of Law and Society, 3(2), 68-77. https://doi.org/10.11648/j.ijls.20200302.14

    Copy | Download

    ACS Style

    Cosmas Ikegwuruka; Ugonna Chimnonyerem Nkwunonwo. ‘As It Was in the Beginning’: An Examination of the Convergence, Divergence and Dilemmas of Immigration Practices in Some Selected liberal Democratic States. Int. J. Law Soc. 2020, 3(2), 68-77. doi: 10.11648/j.ijls.20200302.14

    Copy | Download

    AMA Style

    Cosmas Ikegwuruka, Ugonna Chimnonyerem Nkwunonwo. ‘As It Was in the Beginning’: An Examination of the Convergence, Divergence and Dilemmas of Immigration Practices in Some Selected liberal Democratic States. Int J Law Soc. 2020;3(2):68-77. doi: 10.11648/j.ijls.20200302.14

    Copy | Download

  • @article{10.11648/j.ijls.20200302.14,
      author = {Cosmas Ikegwuruka and Ugonna Chimnonyerem Nkwunonwo},
      title = {‘As It Was in the Beginning’: An Examination of the Convergence, Divergence and Dilemmas of Immigration Practices in Some Selected liberal Democratic States},
      journal = {International Journal of Law and Society},
      volume = {3},
      number = {2},
      pages = {68-77},
      doi = {10.11648/j.ijls.20200302.14},
      url = {https://doi.org/10.11648/j.ijls.20200302.14},
      eprint = {https://article.sciencepublishinggroup.com/pdf/10.11648.j.ijls.20200302.14},
      abstract = {This paper holds the view that the burgeoning phenomenon of immigration control sits uncomfortably on the fault line separating the prerogatives of State sovereignty from the rights of non-citizens regardless of the broad discretion of States to control immigration. Using liberal democratic ideologies, the paper expresses that, there is in existence, a tension between the right to liberty of migrants against the broadly unfettered rights of States to control the admission and expulsion of migrants conferred on States by national and international law. Drawing from law and policy, this paper considers in perspectives, immigration practices in selected liberal democratic states-the United States of America, Australia and France whose deportation reality offers significant similarities with the UK in immigration control and detention pending expulsion. Finding as it did, the paper illustrates that crimmigration in particular and immigration enforcement and control in general, serve as vehicles for enhancing and sustaining expulsion of migrants. This practice, it is argued, queries the liberal democratic ideals of fairness in particular and compliance to international human rights standards in general.},
     year = {2020}
    }
    

    Copy | Download

  • TY  - JOUR
    T1  - ‘As It Was in the Beginning’: An Examination of the Convergence, Divergence and Dilemmas of Immigration Practices in Some Selected liberal Democratic States
    AU  - Cosmas Ikegwuruka
    AU  - Ugonna Chimnonyerem Nkwunonwo
    Y1  - 2020/05/28
    PY  - 2020
    N1  - https://doi.org/10.11648/j.ijls.20200302.14
    DO  - 10.11648/j.ijls.20200302.14
    T2  - International Journal of Law and Society
    JF  - International Journal of Law and Society
    JO  - International Journal of Law and Society
    SP  - 68
    EP  - 77
    PB  - Science Publishing Group
    SN  - 2640-1908
    UR  - https://doi.org/10.11648/j.ijls.20200302.14
    AB  - This paper holds the view that the burgeoning phenomenon of immigration control sits uncomfortably on the fault line separating the prerogatives of State sovereignty from the rights of non-citizens regardless of the broad discretion of States to control immigration. Using liberal democratic ideologies, the paper expresses that, there is in existence, a tension between the right to liberty of migrants against the broadly unfettered rights of States to control the admission and expulsion of migrants conferred on States by national and international law. Drawing from law and policy, this paper considers in perspectives, immigration practices in selected liberal democratic states-the United States of America, Australia and France whose deportation reality offers significant similarities with the UK in immigration control and detention pending expulsion. Finding as it did, the paper illustrates that crimmigration in particular and immigration enforcement and control in general, serve as vehicles for enhancing and sustaining expulsion of migrants. This practice, it is argued, queries the liberal democratic ideals of fairness in particular and compliance to international human rights standards in general.
    VL  - 3
    IS  - 2
    ER  - 

    Copy | Download

Author Information
  • Almond Legals-immigration, Asylum and Human Rights Lawyers & Researchers, London, UK

  • Department of Geoinformatics and Surveying, University of Nigeria Enugu Campus, Enugu, Nigeria

  • Sections