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  • Series: Research Handbooks in Law and Politics series x
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Catherine Dauvergne

This chapter introduces Dauvergne’s Research Handbook on the Law and Politics of Migration by examining how migration law and migration politics are increasingly intertwined, and describing the framework of the book. The chapter introduces the five sections of the book: theoretical frameworks; institutional evolution; courts; state power; and international governance.

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Irene Bloemraad

How should we understand the politics of migration law, that is, the legislation that governs the admission of migrants, whether economic, humanitarian or family-sponsored? This chapter first provides a brief synthesis of the “politics of immigration” literature from the standpoint of political science and political sociology. In much of this literature, “the law” is a dependent variable: How do we explain the migration laws crafted by legislatures and the executive branch of government? Many models focus on voters and public opinion, especially the extent to which ordinary people’s views influence policy and law, as well as their motivations, be they economic or cultural concerns. Yet a focus on voters, although understandable in advanced democracies, leaves us with a paradox: since World War Two, Western countries have generally admitted more migrants (immigrants and asylum-seekers) than the public says it wants. Thus, to understand the politics of migration law, we need alternative models that focus on the influence of interest groups, institutions, and elite and global norms (e.g. human rights ideas, liberal constitutionalism) that may shift policy and law to more expansive orientations. In synthesizing this literature, it is clear that existing scholarship on asylum and refugee policy is fairly disconnected from that on immigration politics. The former has focused more on foreign policy, as well as rising human rights norms. Moving forward, all “entry” policy should be analyzed using similar frameworks, rather than marginalizing refugee (or economic migration policy) as a specialized area of study. In a shorter second part, I then consider the law as ‘independent variable’, as something that can shape legislative or policy outcomes. I focus not on the traditional influence of case law or formal court decisions, but rather on the role of law in migration politics. Law is activated as a tactic by social movements, that is, as a court-based strategy to advance or block a certain reading of legislation or policy (e.g., to challenge Trump executive orders), and the law can be understood as a cultural/ political discourse that articulates or frames claims. What are the possibilities and limits of law as political tool? The literature on the law as strategy or discourse is less developed than the literature on the law as policy or legislative outcome. I consequently argue for greater cross-fertilization between standard political science models and research on social movements, with a particular emphasis on the claims-making of migrants and their allies. The chapter draws on the research about North America and Western Europe, and acknowledges the limitations of such a circumscribed geographical focus.

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Antje Ellermann and Ben O’Heran

This chapter places Indigeneity and settler colonialism at the heart of the study of immigration and citizenship in “settler states.” Whereas migration scholars rarely engage with this line of inquiry, the chapter examines the ways in which the recognition of ongoing settler colonialism complicates our understanding and use of foundational concepts in migration studies. Most migration scholarship, including research that is set in settler colonial contexts, assumes a world in which sovereignty is settled and uncontested, where people cross borders rather than borders crossing peoples, where an active immigration policy represents an act of progressive politics, where multiculturalism is understood as empowering and citizenship as liberating, and where immigrants’ adoption of their new country’s national identity is celebrated. The “Indigenization” of migration studies, by contrast, in bringing together Indigenous and immigration narratives challenges us to revise these understandings in the light of the ongoing project of settler colonialism and Indigenous dispossession.

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Erin Aeran Chung

This paper reviews the growing scholarship on meso-level institutions that facilitate, undermine, and mediate migration policies “on the ground.” Meso-level analysis has been applied in a wide range of work across disciplines to study the interactions between individuals and social groups, organizations, and large-scale institutions. In migration and citizenship studies, comparative scholarship on immigrant incorporation has examined how meso-level institutions facilitate or constrain access to rights and services, thereby making some non-citizens eligible for citizenship rights and limiting the practice of citizenship among populations marginalized by racialized and gendered hierarchies (Glenn 2002; Cohen 2009; de Graauw 2016). Studies focusing on South Asia and the Gulf States have, furthermore, highlighted the multiple ways that citizenship and migration policies interact at the meso-level - forcing native populations without family registries to migrate, making former colonial subjects “undocumented” as a result of incomplete nationalization, and de-nationalizing specific populations by applying narrow and discretionary citizenship attribution criteria during the process of nation building or re-building (Sadiq 2009; Abbas 2016; Lori 2019). This paper takes stock of the growing scholarship on migration politics in Asia to propose a research agenda that prioritizes the meso-level of migration politics. Through a selective survey of recent scholarship that examines how meso-level institutions facilitate, undermine, and mediate migration policies “on the ground” - focusing on civil society and the household registration system - this paper seeks to shed light on the gaps between migration policy intent, interpretation, and outcomes.

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Asha Kaushal

At the bottom of all immigration laws lie political theory conundrums about boundaries, scope, and closure. In this paper, I examine the politics of immigration law through the prism of long-term permanent residents. Where political theory is plain about the reach of moral obligations and the value of membership in a political community, immigration law is both obscure about such matters and vested in that obscurity. I consider this relationship through two valences. First, I examine the constitutional provision pertaining to permanent residence, comparing the narrow negotiating history and early economic interpretations of section 6 of the Charter to the provision’s later role underwriting the most fundamental and exclusionary principle of immigration law in the Chiarelli case. Second, I review the small handful of Federal Court cases which directly address long-term permanent residents as a category of people, and examine how they intersect with concepts of substantive citizenship. Rights of citizenship that are not anchored in the state and the concept of the denizen are notions that bridge the political theory / immigration law divide. The doctrinal turns employed in Canadian jurisprudence to keep long term permanent residents beyond the reach of political community reveal that immigration law has not yet come to terms with its political foundations.

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Sarah Marsden, Eric Tucker and Leah F. Vosko

Canada’s use of migrant labour continues to increase, and rights shortfalls, exploitation, and worker abuse within migrant labour programs have been extensively documented. Migrant workers, and the thrust of migrant work policy itself, are represented in variable and sometimes inconsistent ways in policy and popular discourse: sometimes, migrant workers are framed as deserving of protection, sometimes as an outside force threatening jobs for Canadians, and sometimes as the solution to intractable labour shortages. In this chapter, we put some order to these threads and elaborate on their development over time. Specifically, we examine discourse in media, policy, and legislative and regulatory changes surrounding migrant worker policy since 2005 and identify three main “vectors” - or directional forces - that play a role in shaping temporary labour migration policy. What we call the “protectivist” vector is that in which the need to protect migrant workers’ rights is highlighted, whereas in the “protectionist” vector it is the labour market that is framed as needing protection from the perceived effects of migrant worker participation. The third vector is that of “access,” by which we refer to and emphasis on employers’ demands for migrant labour on terms that suit employers’ needs. We trace the ebb and flow of these vectors from 2005 to 2019, identifying four distinct stages in the discourse surrounding migrant workers, namely 1) the expansion of the migrant worker program between 2005 and 2008, in which employer access was dominant; 2) increasing importance of protectivism between 2008 and 2012 concurrently with the maintenance of employer access; 3) between 2012 and 2016, scrutiny of migrant worker programs through both protectivism and protectionism, including strengthened enforcement measures aimed at employers that limited access, but alongside growth in less-regulated subsets of migrant workers, and; 4) between 2016 and 2019, the prevalence of protectionism in which employer access is still fairly well accommodated. We conclude that even while the protectivist vector may at times limit employer access, it is an incidental feature rather than a cardinal component of labour migration policy, while both protectionism and employer access function as fundamental drivers through the stages we identify.

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Karine Côté-Boucher and Mireille Paquet

This chapter explores contemporary trends in the structures and the activities of national public administrations responsible for immigration and border issues. In the face of global immigration policy trends - legalization, securitization but also segmented mobility - we ask: what can we learn about the reforms of immigration bureaucracies and about the transformation of the work of their bureaucrats? To answer this question, we document general trends in Canada, Australia, the US and the UK. : the centralization of decision-making within immigration departments; the rise in prestige of immigration-related departments; the separation of immigration policy-making activities from immigration enforcement activities and the associated establishment of enforcement-dedicated agencies. Focusing on Canada, this chapter then explores empirically these trends in relation to the contemporary operation of Immigration, Refugees and Citizenship Canada (IRCC) and of the Canada Border Service Agency (CBSA).

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Laura Madokoro

Over the past decade, there has been an increase in the discourse and practice of sanctuary among the white settler societies of Canada and the United States. The impulse for many declarations of sanctuary cities, sanctuary campuses and the protection of individuals and families in churches and other institutions has come from concerns about national migration and asylum regimes that make it difficult for people in need of asylum to access the protection they require and the hospitality they deserve. The inspiration for many of these practices comes from historical sanctuary practices and discourses such as Biblical emphases on kindness and compassion for strangers and medieval laws that understood sanctuary to be a means of moderating the more bloody aspects of contemporary criminal justice proceedings. Current sanctuary practitioners in North America regularly reference these historical precedents, with many taking additional inspiration from the 1980s sanctuary movement in Canada and the United States. This chapter considers how the discourses around sanctuary in Canada and the United States have evolved over the past thirty years in tandem with the evolving legal contexts in which people have sought asylum. The chapter looks specifically at evolutions in municipal, state and national legislation, which shape how the provision of sanctuary through physical and material assistance is regulated. In doing so, the chapter seeks to understand the manner in which sanctuary practices and enforcement regimes are shaped by civil society and state actors alike in an age when the politics of settler colonialism mean that place, belonging and the responsibility to protect are deeply contested issues.

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Shauna Labman and Sarah Zell

This chapter will offer a comparative analysis of Canada’s economic and humanitarian admissions within a context of increasing privatization and the move to citizen-driven selection. We will reflect on emerging and increasingly important actors and sites of selection, highlighting points of categorical bleeding across the two streams. Focusing on selection criteria, justifications, and use, our discussion will be framed by the question of responsibility and the implications of shifting government oversight.

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Luna Vives and Kira Williams

Children crossing the EU’s external border without an adult responsible for their well-being have become important actors in the Mediterranean migratory system. Unaccompanied migrant children are in a situation of extreme vulnerability to violence and exploitation, and, consequently, international, regional, domestic frameworks accord them the highest degree of protection. These protections, however, rapidly become irrelevant in a context where the governments chose to securitize and criminalize migration, favouring logics of containment over mobility rights and access to international protection. One artifact of this erosion of rights and protections is the lack of reliable and consistent statistical information regarding migrant children across the EU. In this chapter, we identify a form of “administrative death” occurring to unaccompanied children due to their erasure from administrative data. We further present a first attempt to systematize these statistical data to present the situation of unaccompanied children travelling by boat to the EU, zooming in on Spain as a case study. We compare EU- and Spanish-level administrative data on unaccompanied migrant children and the stories they each tell as we try to reconstruct children’s journeys across the Mediterranean Sea’s external border and into the EU. We propose that willful erasure from statistical databases functions to depict EU member states’ treatment of these children, while also paving the way towards the gradual elimination of the specific rights and protections that this group is entitled to.