international journal on minority and group rights 22 (2015) 1-6 brill.com/ijgr
Introduction: Critical Approaches to Migration Law The collection of articles in this special issue of the International Journal on Minority and Groups Rights cover various strands in the typology of reflective criticism. They concern themselves with both pragmatic and systemic responses to the law of migration. The articles aim to provide for a wider assessment and understanding of the law – be it a legal decision, a legislative or treaty provision, or practice or a policy. The schematic typology does not advocate a sharp division between systemic and scholarly reflection. Nor does it advocate segregation in scholarship. The adopted premise is that there are different ways to reflect. All of these are capable of co-existence. What must be preserved – especially against the dominant hegemonic approaches to study of law and policy where those involved ‘talk or negotiate’ with the law – as would a mere commentator or neutral collaborator – is the role of the academic scholar as a critic. Scholarly criticism can easily fall prey to the wider concerns of governmentalism which predominates in the public realm. It can also fall prey to the demands of managerialism whereby law is used to manage situations and to ‘deal’ with problems. Legal criticism has a higher function than this. It is, in a more classical sense of academic rigor, to think or study without preconceptions. The production of ‘problems’ in the law must be first analysed before consideration is given to the ‘solutions’ proposed by the law. The very logic so prevalent in migration law and policy of the pseudo-dialectic of problem-solving must be questioned. This approach is important because of the production or problematisation of the irregular migrant, the asylum seeker and the excluded migrant. This is a historical production. It contains its own complexity of causes. For those engaged in the pseudo-dialectic there has been a programmed refusal to reflect on the wider issues at stake. For such a person, there has been simply the question of ‘the problem to be solved’. When governments talk of ‘pragmatism’ they do so in the context of first defining the problem for themselves, formulating it in such a way that allows it to police dissent, so that ‘governmental pragmatism’ becomes an inherently political production, which ultimately prioritises what is demanded by dictates of ‘administrative managerialism’. Insofar as there is an ‘ideology’ at work it is in Western democracies the ideology of ‘managerialism’. It is a discourse (logos) without ideas. Managerialism has only to do with problems to respond to, risks to be averted and dangers to be alleviated or prevented. Inevitably, the
© koninklijke brill nv, leiden, 2015 | doi 10.1163 / 15718115-02201000
2
JUSS and Zartaloudis
ends and virtues of managerialism exist only in name. It is without content. It is so because it wants always to be amenable to ‘flexible and responsive’ change. That is its raison d’etre. Accordingly, the articles collected in this special issue amount, in the minds of the authors, to a critique that is in the form of an intervention, but one that is attentive to the production of the so-called problems, or the problematic status of subjects in question, in the first place. This is not the first time such an approach is proposed, but in the situation in which we find ourselves we hope it shall serve as a useful reminder to scholars and students alike. Nadine El-Enany in her article “On Pragmatism and Legal Idolatry: Fortress Europe and the Desertion of the Refugee” observes that we are presently witnessing both an attack on the refugee on several fronts as well as a desertion, even by those who have traditionally stood behind the refugee. There is an identifiable assault on the migrant, whatever her motivation for moving, being launched by those in power who seek both to blame the harms that result from the prescribed ‘age of austerity’ on the migrant, and to deflect attention from the material and immaterial deficiencies of neo-liberalism and capitalism, that have recently become so grossly apparent. El-Enany adopts a critical approach in analysing the practice of restriction which is produced as an accepted or indeed ‘the only’ solution, in both policy and legal scholarship, to the problematised refugee. The wall of restrictive practices that comprise the eu’s migration policy include visa requirements, safe country concepts, the operations of the European Borders Agency, as well as policies of ‘containment’ or the extra-territorialisation of protection. These practices hinder access to European territory for the refugee and pose methodological and epistemological challenges to progressively minded policy makers and researchers. Contesting the existence of these restrictions, on moral and/or legal grounds, means crudely arguing for the outright removal of restrictions on the one hand, or accepting their presence and working instead towards incremental improvements in refugee protection in Europe. This choice creates three conditions that can result in the desertion of the refugee. Firstly, acceptance leads to the emergence of ‘legal idolisers’, on the one hand, and ‘pragmatist-realists’, on the other. The first cling to protective legal measures, while overlooking their exclusive function. The second argue that a realist approach to ‘Fortress Europe’ must be adopted to further the protection of refugees. In this way, the field becomes vulnerable to opportunistic research, which is designed to be palatable to policy-makers who are attracted to pragmatist-realist ‘responses’. This creates, thirdly, a sinking ship for those who argue for the removal of restrictions whereby contemporary academic scholarship and public debate paints critics of restrictive immigration and refugee policy as naïvely adopting international journal on minority and group rights 22 (2015) 1-6
Introduction: Critical Approaches to Migration Law
3
a ‘cuddle policy’ towards ‘illegals’ or ‘bogus asylum seekers’; and at the same time abstracts the migration discourse and practice from broader structures of domination and questions of global and historical injustice. In this way, the voices of critics are marginalised in favour of those of pragmatists in particular, which can unwittingly contribute to the entrenchment of racist and xenophobic attitudes towards refugees. The result is the effective replication in theory and policy of racialised power structures which subordinate the refugee in the dominant host society and render the critic complicit to domination. The conceptual restriction, fed and maintained by opportunist managerial production of knowledge, supports the maintenance of the policy of restriction. El-Enany, thus, argues that greater awareness and attentive critical understanding is needed of the reasons for shifts in analysis and discourse on refugee rights and the dangers that come of accepting trends in argumentation divorced from such a self-reflective understanding. Sylvie Da Lomba in her article “The echr and the Protection of Irregular Migrants in the Social Sphere” examines restrictive practices and discourses from the affirmative perspective of tracing, first, the ‘social dimension’ of the European Convention on Human Rights and the European Court of Human Rights’ decisions. Here the law can be seen to be restricted in turn by the managerialism of resource and immigration policy considerations. It is worthy of notice that it is not only the irregular migrant or refugee who is attached and often deserted, as El-Enany argues in her article, but also the law itself. In this manner, we consider Da Lomba’s piece a useful supplement to El-Enany’s argument. For as Da Lomba notes, for more than a decade, the Council of Europe has expressed deep concern over irregular migrants’ poor access to basic social rights. With this in mind, Da Lomba considers the extent to which the European Convention on Human Rights contributes to protect irregular migrants in the social sphere. To this end, she considers, in particular, the role of international supervisory bodies in social rights adjudication and argues for the suitability of international adjudication as a means to uphold irregular migrants’ social rights. With this in the background she then turns to critically examine the ‘social dimension’ of the European Convention on Human Rights and the significance that the European Court of Human Rights attaches to immigration status. Crucially Da Lomba argues that the importance that the Court attaches to resource and immigration policy considerations in N. v. The United Kingdom, 26565/05 [2008] echr 453 significantly constrains the ability of the European Convention on Human Rights to afford irregular migrants protection in the social sphere. international journal on minority and group rights 22 (2015) 1-6
4
JUSS and Zartaloudis
Thanos Zartaloudis in his article “Public Policy and the Administrative Government of Unlawful Detention: The Landmark Cases of Lumba and Mighty” turns his attention also to the role of the courts, and in particular the Supreme Court, by critically analysing the landmark case of wl (Congo) 1 & 2 v. sshd; km ( Jamaica) v. sshd [2011] uksc 12 (Lumba and Mighty) which examined whether certain breaches of public policy and law were capable of rendering unlawful the detention of foreign national prisoners pending their deportation under the Immigration Act 1971. The turn of law into more and more a matter of administrative managerialism becomes evident in a case such as this, where the gravity of the breaches of public policy was effectively nuanced by the Court through a logic of what could be called administrative effectiveness. The Court acts, here, more like a functionary, a minister of administration rather than as an adjudicator of rights and justice. The liability finding in this case is indeed a welcome reminder of the critical role that the courts can play in this area at least in principle. Yet the managerial logic of administrative effectiveness and the award of nominal, if insignificant, damages not only dilutes the significance of the nature of liberty as a fundamental right, but shows the Court having to read down its role along the lines of the managerial logic of immigration controls. This has hijacked immigration policy for a considerable amount of time. The articles by Eddie Bruce-Jones and Satvinder Juss examine an expanding area of legal practice and scholarship: sexuality-based refugee claims by questioning the role of the courts as well as of the wider formation of a discourse of a particular sexual politics. Bruce-Jones sets the critical framework of the current developments in his “Death Zones, Comfort Zones: Queering the Refugee Question”. The expansion in the field of refugee law in relation to sexualitybased claims, mirrors, Bruce-Jones argues, international efforts to address homophobia in various sites around the globe; and in legal terms this has predominantly taken the form of rights-based protections, such as decriminalising same-sex sexual acts as a matter of civil and political rights. For Bruce-Jones, and from a wider perspective, the strategies of addressing sex-, gender- and sexuality-based oppression in the context of free movement on one hand and constitutional protections on the other share a common set of tensions and dilemmas, and both risk re-inscribing fundamental aspects of the very violence that they each seek to address. Bruce-Jones, ultimately, asks what it might mean to ‘queer’ refugee law, particularly in the context of its dynamic relationship with the discourse of decriminalisation. His article takes forward the centrality of sexual politics within the moral economy of migration regulation and attempts to approach it with the methodological impulse and transformative potential that ‘queer’ suggests. Satvinder Juss, follows, with his “Sexual Orientation and international journal on minority and group rights 22 (2015) 1-6
Introduction: Critical Approaches to Migration Law
5
the Sexualisation of Refugee Law”, and approaches the same subject matter from his own critical perspective on the way the politics of orientalism influence modern refugee law. His starting point is the seminal case of hj (Iran) v. Secretary of State for the Home Department (Rev 1) [2010] uksc 31. Lord Hope spoke of how, fanned by misguided but vigorous religious doctrine, the situation has changed dramatically when it comes to persecution for reasons of homosexuality, which was originally not perceived as a problem by the high contracting parties in 1951. Today between “the ultra-conservative interpretation of Islamic law that prevails in Iran” and “the rampant homophobic teaching that right-wing evangelical Christian churches indulge in throughout much of Sub-Saharan Africa”, what has happened is that “a huge gulf has opened up in attitudes to and understanding of gay persons between societies on either side of the divide. It is one of the most demanding social issues of our time” (paras. 2–3). The orthodox position used to be that if a gay applicant for refugee status would act discreetly and so not be subjected to violence if returned to his/her country this meant they did not have a well-founded fear of persecution on their return. In hj (Iran), however, Lord Rodger, who gave the main speech, said that this could not be right because “what is protected is the applicant’s right to live freely and openly as a gay man” (para. 78). As Juss notes, that involves a wide spectrum of conduct, going well beyond conduct designed to attract sexual partners and maintain relationships with them. Juss argues that what this much-lauded decision does is highlight how modern refugee law produces orientalist mappings of a world incapable of selfgovernance and in turmoil. The refugee has become a space for politics, not an exception to politics. hj (Iran) shows, Juss argues, that modern refugee law is a process by which political subjectivity is cognized and implemented in a way that it enhances the reproduction of Orientalism, while at the same time laying claim to the superiority of Western culture over its Eastern counterparts. The blatant irony is that the number of lgbti refugees still often face acute difficulties in getting their claims accepted by the ‘superior West’, and invariably undergo humiliating and distressing inquiries into their behaviour, with many claims still being rejected. But in this way, Juss argues, there may be an undisclosed mechanism of supposed recognition through which the Occidental tradition is able to replenish and renew itself through a discourse about the Orient and its peoples. The cultural production of superiority or progress, through historical, literary and legal narratives, continues to divide the world into territorial spaces and places of ‘barbarism’ and ‘civility’. As is known civility requires the barbarian other in order to define itself and reproduce its selfsufficient justification and superiority. international journal on minority and group rights 22 (2015) 1-6
6
JUSS and Zartaloudis
For Juss, this situation is illustrative of a wider ‘cultural’ process affecting even the marginal numbers of subjects before legal processes of recognition. While refugee law touches the lives of a miniscule number of the world’s distressed, the myth of Occidental responsiveness (and the administration of recognition) is maintained and elaborated, as the latest cases coming before the uk courts well demonstrate. This is without an acknowledgement of the role of the West in reproducing an orientalist and ultimately damaging discourse. Satvinder Juss
Professor, King’s Law College London, University of London, London, uk
[email protected]
Thanos Zartaloudis
Senior Lecturer, School of Law, University of Kent, Canterbury, uk
[email protected]
international journal on minority and group rights 22 (2015) 1-6
