On the Right of Exclusion

Bas Schotel

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781136630170
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

On the Right of Exclusion: Law, Ethics and Immigration Policy addresses the current immigration laws and practices of Western states, and argues that if states cannot substantially justify the exclusion of an alien, the latter should be admitted.

Chapter 1

A Legal Problem

Exclusion without Justification

The main concern of this book is that admission policies regarding normal migrants constitute a practice of exclusion without justification. Furthermore, the authorities believe that this practice is sanctioned by law. But are the policies really so exclusionary? Are not authorities constantly providing reasons for their immigration policies? These are legitimate questions and they call for explanations and empirical material. Also, if we want to proceed with our inquiry we should have a precise understanding of how the law sanctions this practice of exclusion without justification. In short, before challenging the current state of affairs we should produce the facts showing that there is something to be concerned about in the first place. Accordingly, this chapter provides the empirical material that constitutes the basis of our central concern. First, it explains what we mean by exclusion and justification. Second, probably superfluously, it substantiates the observation that admission policies can be understood in terms of exclusion. Third, this chapter should show that authorities no longer justify the exclusion. This is a more complicated task as it boils down to showing the absence of something. Finally, we will lay bare the mechanics that legally justify this lack of justification under current normal migration policies. Before addressing these items, we should remark on the type, scope and levels of policy we will be discussing. We must identify the playing field for our discussion.

Policies, Authorities and Migrants

The central contention of the book is that immigration policies constitute a form of exclusion without justification. Conversely, I claim that this practice is untenable from a legal perspective and that the authorities have a duty to justify. But what do we actually mean by policies? And who are the authorities? And why just concentrate on the so-called ‘normal’ migrants?

Immigration regimes differ hugely from country to country depending on the level of granularity.¹ In the EU, admission regimes are still governed by each Member State individually. Under the Lisbon Treaty the EU has undertaken to frame a common policy on immigration but it remains very likely that, even under an EU framework, many decisions about the admission of normal migrants will remain a competence of individual Member States.² Things get even more complicated if we add the self-professed non-European immigration countries with advanced quota systems, particularly the United States, Canada and Australia. It is crucial both for science and practice to account for these differences and complexities. Our investigation concentrates on the structure (basic ‘logic’ or anatomy) of admission policies. For our purposes it comes up with a rather schematic representation of the admission policies. As this scheme is generic it will capture the structure of most admission regimes, including the non-European countries; however this account is mainly oriented towards admission regimes in the EU.³

One typically distinguishes between policies of entry, stay and citizenship. This book concentrates on admission, which in a way comprises both entry and stay. It looks at the structure of the policies that govern the treatment of migrants who seek entry to the territory for purposes of a (mid-) long-term stay. Our inquiry does not bear on questions about entitlements and duties associated with residence. These are matters captured by a discourse on citizenship and integration. The citizenship question is about what we do with respect to those who are already inside the territory. Ours is a question about how do we treat those who are on the outside but seek admission. The two policy areas are connected.⁴ Still, the regimes are different from an analytical, legal, political and ethical perspective.

For the purposes of our discussion it is helpful to distinguish between the different stages of immigration policies in function of their level of individualization. The stages correspond roughly with the classic distinction between the branches of government. Accordingly, the first stage of immigration policy is very general. Here the legislative branch of government enacts an immigration law (either at a national or supra-national level, e.g. a EU directive). This law sets the general criteria and conditions for admission and exclusion. If applicable it will indicate the possibility and basic constraints for quota. It typically contains provisions that grant powers to competent ministeries, departments, secretaries and/or governmental agencies to develop more detailed and applied implementation frameworks. The second level, where the executive branch elaborates a more specific regulation, is targeted at more particular categories of migrants (e.g. where the general law may only distinguish between EU and third-country nationals, the regulations may distinguish between categories of third countries). The immigration policy becomes really individual when the normal migrant has to obtain one or all of the three ‘tickets’ to admission: long-stay visa, residence permit and working permit. Admission and long stay are typically dependent on working permits, which are granted if there are no sufficient EU residents available for the job for which the migrant is (to be) contracted. The exclusion of the individual normal migrant takes place when his application for a permit is rejected. The policy is at its most individual when the immigrant brings his exclusion case for review before an independent court. And the court’s rejection of the appeal constitutes the most individuated exclusionary instance of admission policies.

Of course, in practice, the picture is more complex. Within each stage one can distinguish several sub-stages. Also, the three stages suggest a clear separation between the three branches of government: legislative, executive and judicial power. In reality, the executive power more often dominates stage one.⁵ Furthermore, the three stages give the impression of a linear chronology, whereas the interaction between the stages is often reiterative. Yet for our purposes and the sake of clarity this threefold scheme should do. The reason for distinguishing the different levels of generality and individualization is that it helps us grasp the nature of the justification for the policy one may expect from the authorities. It will also facilitate identifying those who are directly and intentionally affected by an immigration policy.⁶

So far, we understood immigration policy as legal norms directed at officials (e.g. consular instructions) and migrants (e.g. immigration laws prohibiting entry without proper permission). Obviously, these directives only become effective through concrete material measures. One can think of organizational measures such as setting up the visa application processes and remote control by carrier personnel, or more tangible measures such as the construction of border fences and border crossing points. And probably the most physical instance of admission policies is the moment when a border official uses physical force to prevent an individual normal migrant from entering the territory. For purposes of this book we understand immigration policy as comprising both the legal directives and factual measures.⁷

The book concentrates on what it calls ‘normal’ migrants, i.e. migrants that do not have a legal right to admission. Normal migrants may be admitted when beneficial to the receiving country. Yet there is no legal duty to admit them, contrary to migrants with a right to admission (e.g. a refugee,⁸ family member of permanent resident, nationals of a party to a bi-lateral (labor) migration treaty). The migrants are labeled as ‘normal’ to underscore the idea that they cannot benefit from the special arrangements. They represent the normal situation or starting point in the law. You are a normal migrant if you cannot invoke a special preferred status. Furthermore, the notion ‘normal’ refers to quantity. As we will see hereafter, normal migrants constitute the largest group of migrants seeking admission. Finally, in a more provocative fashion, the term ‘normal’ creates a stark contrast with the exceptional discretionary powers the authorities have at their disposal; the admission of normal migrants is addressed through exceptional powers.

The notion ‘normal migrant’ should allow us to distinguish clearly from the migrants with a preferred status, especially refugees. The point is that there is longstanding consensus about refugees deserving special protection. Although in practice many states fail to live up to their legal obligations in this respect, nobody contests the normative legal principle of the protection we owe to refugees. In the field of family reunification states are moving in the same direction. There is a basic right to family life, which can give rise to a right to admission for some family members. The principle is more or less well established, but the practice is still lagging. Well-intentioned voices suggest that we should abolish the distinction between types of migrants. After all, are not economic migrants in fact economic refugees? I believe that we should keep the distinction between normal migrants and those with a right to admission, especially refugees. Putting refugees and normal migrants on an equal footing will probably undermine the already weak protection offered to refugees. It will inflate and devalue what it means to be a refugee. As a result it will weaken the normative case for the ‘genuine’ refugees. Furthermore, a refugee’s right to admission is normally not susceptible to a balancing exercise involving national economic interests and expediency. This has to do with the rationale behind granting refugees special status. A refugee is fleeing from a life-threatening situation. This is not the case for a normal migrant. Of course, this does not mean that his reasons for seeking admission are frivolous or without value. It simply means that we have already established the special status of refugees and there is no prima facie reason – let alone elaborated ones – to conflate it with normal migrants. There is still enough room to argue in favor of improving the legal position of normal migrants seeking admission. That is precisely the point of this book. But we should not do this at the expense of the legal position of refugees.

I have provided little or no characterization of normal migrants in terms of their motives and profile. They largely coincide with economic migrants and should not be qualified as refugees. There is not much more we can say about them in general, as we have so little general stable data on their profiles, motives, intentions and actual behavior. The book leaves this white spot intentionally open. It refrains from substituting our lack of information with speculation on the true motives, intentions etc. of normal migrants. One such assumption is that the migrant seeking admission has the wish and intention to obtain membership and ultimately citizenship of the receiving country (hence, the emphatic and speculative connection between admission policy and citizenship policy). Legitimate reasons for being exclusive about citizenship turn into reasons for being exclusive about admission. But what if the normal migrant is not seeking citizenship or membership (or at least not in the thick sense)?⁹ To avoid these pitfalls we will say little about the normal migrants and stick to what is at least expressed by the normal migrant: he seeks admission to the territory and he seeks employment in the territory.

Just a final word on terminology. The book uses primarily the term ‘migrant’, as it has become the dominant term in public policy and academia. However, the term ‘alien’ would be more exact and productive.¹⁰ ‘Alien’ is a specific legal category, which still refers to a legal subject.¹¹ By contrast the migrant is a much more socio-economic notion which is easily captured by pure policy (in terms of factual measures), as opposed to laws. In effect, one painlessly moves from ‘migrant’ to ‘flows of migrants’. And from ‘flows of migrants’ one easily arrives at ‘migration flows’. We end up with the ‘management of migration flows’. This concept turns the alien into an object of policy, rather than a subject of law. Less problematic but still clumsy, ‘migrant’ refers to a person who has migrated, is in the process of migrating, or is about to migrate. The problem with normal migrants seeking admission is that most will never reach either of these stages – they remain aliens and never become a migrant. Though we must go along with the dominant language of public policy and academia, many of our analyses rely on ‘hard core’ instruments of positive law. Consequently, it is impossible not to switch occasionally to the term ‘alien’.

Exclusion

The notion of exclusion should be taken quite literally: denying someone access to something, shutting someone out from a place.¹² So the primary meaning is denying people access to a place. Accordingly, immigration policies denying admission to normal migrants may be understood as a form of exclusion as they deny migrants access to a particular place, i.e. the territory of the target state. As a result of this denial of access to the territory, the normal migrant will not have access to a whole set of other items situated in the territory: goods, lifestyle, practiced language, opportunity, environmental conditions, etc. It seems that the scope of the exclusion is almost inexhaustible. But by stretching its scope we run the risk of inflating the notion of exclusion. The key is to understand exclusion as an intentional act of denying someone access to something. The mere fact of not being present somewhere and not being able to access something does not constitute exclusion in itself. What matters is the intention to exclude the person from particular places and items. So absence does not equal exclusion. In this respect, exclusion is a normative act. The excluded person is not permitted (ought not) to access a particular item. Still, it remains difficult to fix the scope of the items from which a normal migrant is excluded when denied admission. Probably the safest response is to frame immigration policies in terms of exclusion from goods. But what goods are we talking about? Unsurprisingly, the exclusion does not so much concern the so-called economic goods that are valued in money and are tradable, i.e. which can be bought and sold by private parties. Denial of admission does not prevent a normal migrant from taking a property interest in assets situated in the territory of the target state.¹³ Full enjoyment of these property rights may require presence in the territory of the target state where the goods are situated,...