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Research Handbook on the Law and Politics of Migration
 2021932288, 9781789902266, 9781789902259

Table of contents :
Front Matter
Copyright
Contents
Figures
Contributors
Acknowledgements
Abbreviations
1. Introduction to the Research Handbook on the Law and Politics of Migration: law, politics, and the spaces between
PART I FRAMING THE LAW AND POLITICS OF MIGRATION
2. The politics of migration law: interests, ideas, and institutions
3. Unsettling migration studies: Indigeneity and immigration in settler colonial states
4. Migration politics at the meso-level
5. The problem of boundaries: the Constitution and the meaning of citizenship
6. The trilemma of Canadian migrant worker policy: facilitating employer access while protecting the Canadian labour market and addressing migrant worker exploitation
PART II INSTITUTIONS AND THEIR EVOLUTION
7. Immigration enforcement: why does it matter who is in charge?
8. On public sanctuary: exploring the nature of refuge in precarious times
9. The shift towards increased citizen-driven migration in Canada
10. Closing the gap: official statistics on the migration of unaccompanied migrant children across the Mediterranean
11. Big tech and migration management
12. The power of politics: exploring the true potential of community sponsorship programmes
PART III THE POLITICS OF COURTS
13. The geopolitics of knowledge production in international migration law
14. The West and the Muslim refugee: legitimacy, legality and loss
15. Populism and the failure to acknowledge the human rights of migrants
16. Manufacturing foreigners: the law and politics of transforming citizens into migrants
PART IV EXAMINING THE SHARP END OF STATE POWER
17. Immigration detention and the production of race in the UK
18. Fast-track, accelerated, and expedited asylum procedures as a tool of exclusion
19. Immigration detention in the age of COVID-19
20. Protection, crime, and punishment: regulation at the nexus of crimmigration and refugee law
21. Privacy rights at the Canadian border: judicial assumptions and the limits of the Charter
PART V THE CHALLENGE OF INTERNATIONAL GOVERNANCE
22. Re-defining the international refugee regime: UNHCR, UNRWA, and the challenge of multigenerational protracted refugee situations
23. Knowledge controversies of global migration governance: understanding the controversy surrounding the Global Compact
24. The Global Compact for Migration as social theodicy
25. Why the Sustainable Development Goals? Examining international cooperation on migration
26. Global migration governance and migrant rights advocacy: the flexibilization of multi-stakeholder negotiations
Index

Citation preview

RESEARCH HANDBOOK ON THE LAW AND POLITICS OF MIGRATION

RESEARCH HANDBOOKS IN LAW AND POLITICS Research Handbooks within this series provide state-of-the-art analysis of discrete areas of research that sit at the intersection of law and political science. Through exploring the legal aspects of political science and the impact of politics on the formation and application of the law this series acts as a platform for cutting-edge interdisciplinary research. The Research Handbooks explore legal and political science approaches to key topics and domains, such as: the actions of legal institutions, the application of the law, judicial politics, constitutions, global governance, law and political theory, democracy, diplomacy, and federalism, among others. Edited by leading scholars in their respective fields, volumes bring together authors with diverse expertise to provide rounded analysis of the substantive issue at hand. Due to the interdisciplinary nature of the series, the volumes within will not only act as valuable resources to those researching the nexus of law and politics but also provide new insights for those whose area of focus sits within either of the respective fields. The research presented will make significant new contributions to existing debates within the broadening study of law and political science whilst also acting as a starting point for fresh analysis. Titles in the series include: Research Handbook on the Ombudsman Edited by Marc Hertogh and Richard Kirkham Research Handbook on Law and Courts Edited by Susan M. Sterett and Lee Demetrius Walker Research Handbook on the Politics of EU Law Edited by Paul James Cardwell and Marie-Pierre Granger Research Handbook on the Law and Politics of Migration Edited by Catherine Dauvergne

Research Handbook on the Law and Politics of Migration Edited by

Catherine Dauvergne Vice-President Academic and Provost, Simon Fraser University and formerly Dean and Professor of Law, University of British Columbia, Canada

RESEARCH HANDBOOKS IN LAW AND POLITICS

Cheltenham, UK • Northampton, MA, USA

© The Editor and Contributors Severally 2021

Cover image: Matteo Catanese on Unsplash. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA A catalogue record for this book is available from the British Library Library of Congress Control Number: 2021932288 This book is available electronically in the Law subject collection http://dx.doi.org/10.4337/9781789902266

06

ISBN 978 1 78990 225 9 (cased) ISBN 978 1 78990 226 6 (eBook)

Contents

List of figuresviii List of contributorsix Acknowledgementsxvi List of abbreviationsxvii 1

Introduction to the Research Handbook on the Law and Politics of Migration: law, politics, and the spaces between Catherine Dauvergne

PART I

1

FRAMING THE LAW AND POLITICS OF MIGRATION

2

The politics of migration law: interests, ideas, and institutions Irene Bloemraad

3

Unsettling migration studies: Indigeneity and immigration in settler colonial states Antje Ellermann and Ben O’Heran

4

Migration politics at the meso-level  Erin Aeran Chung

35

5

The problem of boundaries: the Constitution and the meaning of citizenship  Asha Kaushal

47

6

The trilemma of Canadian migrant worker policy: facilitating employer access while protecting the Canadian labour market and addressing migrant worker exploitation Sarah Marsden, Eric Tucker, and Leah F. Vosko

PART II

8

21

63

INSTITUTIONS AND THEIR EVOLUTION

7

Immigration enforcement: why does it matter who is in charge? Karine Côté-Boucher and Mireille Paquet

83

8

On public sanctuary: exploring the nature of refuge in precarious times Laura Madokoro

96

9

The shift towards increased citizen-driven migration in Canada Shauna Labman and Sarah Zell

10

Closing the gap: official statistics on the migration of unaccompanied migrant children across the Mediterranean Luna Vives and Kira Williams v

110

125

vi  Research handbook on the law and politics of migration 11

Big tech and migration management Rebecca Hamlin

12

The power of politics: exploring the true potential of community sponsorship programmes Jennifer Bond

141

155

PART III THE POLITICS OF COURTS 13

The geopolitics of knowledge production in international migration law Thomas Spijkerboer

172

14

The West and the Muslim refugee: legitimacy, legality and loss Satvinder S. Juss

189

15

Populism and the failure to acknowledge the human rights of migrants Donald Galloway

203

16

Manufacturing foreigners: the law and politics of transforming citizens into migrants Michelle Foster and Jade Roberts

218

PART IV EXAMINING THE SHARP END OF STATE POWER 17

Immigration detention and the production of race in the UK Mary Bosworth

18

Fast-track, accelerated, and expedited asylum procedures as a tool of exclusion 248 Daniel Ghezelbash

19

Immigration detention in the age of COVID-19 Efrat Arbel and Molly Joeck

20

Protection, crime, and punishment: regulation at the nexus of crimmigration and refugee law  Anthea Vogl

21

Privacy rights at the Canadian border: judicial assumptions and the limits of the Charter293 Benjamin Goold

PART V

236

262

279

THE CHALLENGE OF INTERNATIONAL GOVERNANCE

22

Re-defining the international refugee regime: UNHCR, UNRWA, and the challenge of multigenerational protracted refugee situations Yasmeen Abu-Laban

310

23

Knowledge controversies of global migration governance: understanding the controversy surrounding the Global Compact Scott D. Watson and Corey Robinson

323

Contents  vii 24

The Global Compact for Migration as social theodicy Colin Grey

340

25

Why the Sustainable Development Goals? Examining international cooperation on migration Elspeth Guild

355

26

Global migration governance and migrant rights advocacy: the flexibilization of multi-stakeholder negotiations Jenna Hennebry and Nicola Piper

369

Index384

Figures

6.1

Temporary work permit holders for work purposes, 2005–17

66

6.2

Protective and protectivist stories in selected Canadian media, 2005–19

67

6.3

Annual unemployment rates for Canada, Alberta, British Columbia and Ontario, 2005–18

67

10.1

Unaccompanied migrant children in Spain and asylum applications submitted, 2015–18

135

13.1

International Journal of Refugee Law authors per country of residence

180

13.2

International Journal of Refugee Law subjects180

25.1

Developments for the number of first residence permits issued, by country, EU-28, 2016–18 (1000 persons)

viii

359

Contributors

Yasmeen Abu-Laban is Professor of Political Science and Canada Research Chair in the Politics of Citizenship and Human Rights at the University of Alberta. Her published research addresses themes relating to ethnic and gender politics; nationalism, globalization, and processes of racialization; immigration policies and politics; surveillance and border control; and multiculturalism and anti-racism. She has served as President of the Canadian Political Science Association and Vice-President of the International Political Science Association. Efrat Arbel is Associate Professor at the Peter A. Allard School of Law at the University of British Columbia, and a graduate of Harvard Law School’s doctoral programme. She publishes and teaches in the areas of refugee law, prison law, constitutional law, and tort law. Her primary research interests lie in examining how legal rights are negotiated and defined in liminal legal spaces such as the border, the detention centre, and the prison. Combining her academic work with legal practice, she is engaged in advocacy and litigation involving refugee and prisoner rights, and is a frequent media commentator on refugee and prison law issues. Irene Bloemraad is Professor of Sociology at the University of California, Berkeley, where she also directs the Berkeley Interdisciplinary Migration Initiative. Her research examines how immigrants become incorporated into political and civic life, and the consequences of their presence for politics and understandings of citizenship. Her research has been published in academic journals spanning sociology, political science, history, and ethnic/migration studies. She is also the author or co-editor of: Handbook of Citizenship (2017, Oxford University Press, with A. Schachar, R. Bauböck, and M. Vink); Rallying for Immigrant Rights (2011, University of California Press, with K. Voss); Civic Hopes and Political Realities (2008, Russell Sage Foundation, with S.K. Ramakrishnan); and Becoming a Citizen (2006, University of California Press). Jennifer Bond is Associate Professor at the University of Ottawa, Founder and Managing Director of the uOttawa Refugee Hub, and Chair of the Global Refugee Sponsorship Initiative, a partnership that supports the adoption and implementation of community-based refugee sponsorship schemes around the world. Professor Bond holds degrees in law, literature, and business. She has worked as Special Advisor to the Canadian Minister of Immigration, Refugees and Citizenship; sat on the founding national executive of the Canadian Association of Refugee Lawyers; and served with the UNHCR in Syria. She has also published, consulted, and lectured extensively on a variety of refugee and immigration related topics. Mary Bosworth is Professor of Criminology and Director of the Centre for Criminology and Fellow of St Cross College at the University of Oxford, and, concurrently, Professor of Criminology at Monash University. At Oxford Mary directs Border Criminologies, an interdisciplinary research group focusing on the intersections between criminal justice and border control. Her research focuses on immigration detention and deportation. She is particularly ix

x  Research handbook on the law and politics of migration interested in how border control practices uphold and generate notions of race, gender, and citizenship and how those who are confined and who work in detention and deportation negotiate their daily lives. Erin Aeran Chung is Charles D. Miller Associate Professor of East Asian Politics in the Department of Political Science at the Johns Hopkins University. She specializes in East Asian political economy, international migration, and comparative racial politics. She is the author of Immigration and Citizenship in Japan (2010, Cambridge University Press; Japanese translation, Akashi Shoten, 2012) and Immigrant Incorporation in East Asian Democracies (2020, Cambridge University Press). Her research has been supported by grants from the Academy of Korean Studies, the Japan Foundation, the Japan Foundation Center for Global Partnership, the Social Science Research Council, and the American Council of Learned Societies. Karine Côté-Boucher is trained as a sociologist and anthropologist and works as an Associate Professor at École de criminologie at Université de Montréal. Her research focuses on border control along three axes. It investigates how border control is practiced by a range of private and public actors. It examines how it differentially impacts travelers, migrants and refugees. Finally, it investigates the role played by customs controls in the monitoring of supply chains. Dr. Côté-Boucher teaches critical approaches to security, critical border studies and qualitative research methodologies. She has published articles in journals such as Security Dialogue, Social Politics and the British Journal of Criminology and Theoretical Criminology. Her book Border Frictions: Gender, Generation and Technology on the Frontline was published by Routledge in 2020. Catherine Dauvergne QC is Provost and Vice-President Academic at Simon Fraser University, Vancouver, Canada. She has been working in the area of refugee, immigration, and citizenship law over the past quarter of a century. She has written three books that take a broad perspective on the theoretical underpinnings of these areas of law. She is also an editor or co-author of five other volumes, including Canada’s immigration and refugee law casebook. For a decade she held the Canada Research Chair in Migration Law at the University of British Columbia. She was named a Fellow of the Trudeau Foundation in 2012. Antje Ellermann is Associate Professor of Political Science and Founding Director of the Centre for Migration Studies at the University of British Columbia (UBC). She is also the Director of the UBC Institute for European Studies and Co-President of the American Political Science Association’s Migration and Citizenship organized section. She currently serves on the editorial board of the Journal of Ethnic and Migration Studies. Her research focuses on the politics of migration and citizenship in liberal democracies. Michelle Foster is Professor and inaugural Director of the Peter McMullin Centre on Statelessness at Melbourne Law School. Michelle has published widely in the field of international refugee law, including International Refugee Law and Socio-Economic Rights: Refuge from Deprivation (2007, Cambridge University Press); with James C. Hathaway, The Law of Refugee Status, Second Edition, (2014, Cambridge University Press); and, with Hélène Lambert, International Refugee Law and the Protection of Stateless Persons (2019,

Contributors  xi Oxford University Press). Michelle is co-editor, with Jane McAdam and Cathryn Costello, of the Oxford Handbook on International Refugee Law (forthcoming 2021, Oxford University Press). Michelle is founding co-editor in chief (with Dr Laura van Waas) of the Statelessness and Citizenship Review. Donald Galloway is Emeritus Professor in the Faculty of Law, University of Victoria, Canada. His writings, which have focused primarily on immigration law, refugee law, and citizenship law, include the general text Immigration Law (2015, Irwin Law; co-authored by Jamie Chai Yun Liew). He was founding president of the Canadian Association of Refugee and Forced Migration Studies and has served as a member of the executive of the Canadian Association of Refugee Lawyers. He has also served as a member of the Refugee Division of the Canadian Immigration and Refugee Board. Daniel Ghezelbash is Associate Professor at Macquarie Law School in Sydney, Australia. His research focuses on comparative refugee and migration law. He is the author of Refuge Lost: Asylum Law in an Interdependent World (2018, Cambridge University Press), which examines the spread of restrictive asylum policies around the world. He is the founder and director of the Macquarie University Social Justice Clinic, a university-run law clinic assisting refugees and other vulnerable groups. Benjamin Goold is a Professor at the Peter A. Allard School of Law at the University of British Columbia. His major research interests include privacy rights, the use of surveillance technologies by the police, and how civil liberties and human rights function at the border. He is the author of numerous works on privacy, surveillance, and security, including CCTV and Policing (Oxford University Press) and Security and Human Rights (Hart Publishing; edited with Liora Lazarus). Professor Goold has acted as Specialist Legal Advisor to a major House of Lords inquiry into surveillance and data collection in Britain, and is currently a member of the BC Information and Privacy Commissioner’s External Advisory Board. Colin Grey is an Assistant Professor at Queen’s University Faculty of Law. His research focuses on immigration law and legal philosophy. From 2015 to 2019 he was a professor at the Département des sciences juridiques at the Université du Québec à Montréal. Prior to that, he served as Legal Advisor at the Immigration and Refugee Board of Canada. He is author of Justice and Authority in Immigration Law (2015, Hart Publishing) and co-author and co-editor of the leading Canadian casebook on immigration law. His articles have appeared in Legal Theory, Philosophy & Social Criticism, and the Canadian Journal of Law & Jurisprudence. Elspeth Guild is Jean Monnet Professor ad personam in law at Queen Mary University of London and Emeritus Professor at Radboud University, Nijmegen, Netherlands. She is also a partner at the London law firm Kingsley Napley. She regularly advises EU institutions on migration and asylum-related matters and has written studies for the European Parliament on the European dimension of the refugee crisis of 2016. She also advises the Council of Europe and has written two Issue Papers for the Commissioner for Human Rights, one on the right to leave a country and the other on criminalization of migration. In 2009 her monograph

xii  Research handbook on the law and politics of migration Security and Migration in the 21st Century was published by Wiley. In 2017 she co-edited, with Stefanie Grant and Kees Groenendijk, The Human Rights of Migrants in the 21st Century, published with Routledge in the Focus series directed at the UN Global Compact for Safe, Orderly and Regular Migration. Rebecca Hamlin is Associate Professor of Legal Studies and Political Science at the University of Massachusetts, Amherst. She is the author of Let Me Be a Refugee (2014, Oxford University Press) and Crossing: How We Label and React to People on the Move (2021, Stanford University Press). She has also published multiple articles and book chapters on the topics of immigration and refugee law and politics, both in the United States and in comparative perspective. She received her PhD in Political Science from the University of California, Berkeley in 2009. Jenna Hennebry (Ph.D.) is an Associate Professor at Wilfrid Laurier’s Balsillie School of International Affairs. Hennebry is a member of the Canadian Council for Refugees Subcommittee on Migrant Workers, the International Organization for Migration (IOM)’s Migration Research Leaders' Syndicate, the UN Expert Working Group on Women’s Human Rights in the Global Compact for Migration, and the UN Migration Network's Working Group on Bilateral Labour Migration Agreements. She is co-founding Director of the International Migration Research Centre (www​.imrc​.ca ), and co-founder of the Migrant Worker Health Project and the Migrant Worker Health Expert Working Group (www​ .migrantworker​ .ca). Hennebry’s work has been published in national and international journals such as International Migration and the Journal of Ethnic and Migration Studies, and as technical reports on migrant worker rights, social protection and health with UN Women (e.g. http://​ www​.unwomen​.org/​en/​digital​-library/​publications/​2017/​2/​women​-working​-worldwide) the International Organization for Migration (IOM) (https://​publications​.iom​.int/​system/​files/​pdf/​ quarantined​.pdf), and numerous other government and civil society organizations. Molly Joeck is an immigration and refugee lawyer in Vancouver, Canada who specializes in the intersection of immigration and criminal law, as well as the law of immigration detention in Canada. She is also a PhD student at the University of British Columbia’s Faculty of Law under the supervision of Professor Catherine Dauvergne. Her PhD research is focused on the legal and theoretical underpinnings of the Canadian immigration detention regime.  Satvinder S. Juss specializes in identity, integration, social justice, human rights, and constitutional law. A practising barrister, and previously a Panel ‘A’ Advocate for the Welsh Government and Equality & Human Rights Commission, he has appeared in the High Court, the Court of Appeal, the UK Supreme Court, and the Privy Council. He sits as Judge of the Upper Tribunal. He has recently published the Research Handbook on International Refugee Law (2019, Edward Elgar Publishing) and Human Rights in India (2019) and Human Rights and America’s War on Terror (2018, Routledge). Asha Kaushal is an Assistant Professor at the Peter A. Allard School of Law, University of British Columbia. Her research interests lie in the fields of immigration and citizenship law, public law, and legal theory. She has published in all of these fields.

Contributors  xiii Shauna Labman is Associate Professor, Human Rights at the Global College, University of Winnipeg.  She is a legal scholar who writes and speaks extensively in the areas of refugee law, refugee resettlement, and private sponsorship. She is the author of Crossing Law’s Border: Canada’s Refugee Resettlement Program (2019, University of British Columbia Press) and co-editor, with Geoffrey Cameron, of Strangers to Neighbours: Refugee Sponsorship in Context (2020, McGill-Queen’s University Press). Laura Madokoro is an historian and Associate Professor in the Department of History at Carleton University, which is located on the traditional territory of the Omàmiwininìwag. An expert on the history of race, migration, refugees, and humanitarianism, she is the author of Elusive Refuge: Chinese Migrants in the Cold War (2016, Harvard University Press). She has also published widely, including in the Journal of Refugee Studies, Photography and Culture, and the International Journal. She is currently at work on a history of sanctuary in North America. Sarah Marsden is Associate Professor at the Faculty of Law, Thompson Rivers University. Her research focuses on labour migration and she is the author of Enforcing Exclusion (2018, University of British Columbia Press), which documents the impact of migration status across multiple legal and institutional settings, including hospitals, schools, income security, and employment standards. In addition to writing on labour migration, she teaches and publishes in the area of community-based lawyering and pedagogy. Ben O’Heran is a white, hetero-cisgendered, able bodied settler man. They work as an independent scholar and reside on the unceded territories of the Tk’emlups te Secwepemc in what is currently known as British Columbia. Mireille Paquet is Associate Professor, Department of Political Science at Concordia and holds the Concordia University Research Chair on the Politics of Immigration. With Concordia colleagues, she co-founded and co-directs the Centre for the Study of Politics and Immigration and the Équipe de recherche sur l’immigration dans le Québec Actuel. She conducts research on immigration policy and politics in Canada, North America, and Australia and is interested in how political institutions and bureaucracies affect the content of immigration policy. Her current projects focus on the new politics of immigration in Canada, sanctuary cities, the role of immigration departments in contemporary immigration debates and new state responses to emerging immigration challenges. Nicola Piper is Professor of International Migration at the University of Sydney, where she is also the founding director of the Sydney Asia Pacific Migration Centre. Her research interests revolve around labour and human rights of migrants approached from an international political sociology perspective. She is (co-)chief editor of the international peer-reviewed journal Global Social Policy and guest editor of two book series on migration (focused on the Asia Pacific) with Routledge. She has been awarded a Global Professor Fellowship by the British Academy, hosted by Queen Mary University of London, where she will be conducting research until 2022.

xiv  Research handbook on the law and politics of migration Jade Roberts (BA/LLB, University of Western Australia; Master in International Law, Graduate Institute of International and Development Studies) is a PhD candidate and teaching fellow at Melbourne Law School. Her doctoral research explores alternative approaches to statelessness in international law. She has previously worked in research roles with the Office of the High Commissioner for Human Rights, the Internal Displacement Monitoring Centre, and the Global Migration Centre in Geneva. She is co-managing editor of the Statelessness and Citizenship Review. Corey Robinson is a researcher working at the intersection of international political sociology, forced migration studies and critical security studies. He holds a PhD in Political Science and a Graduate Diploma in Forced Migration and Refugee Studies from York University. His work has appeared in International Political Sociology, Security Dialogue, and Millennium: Journal of International Studies. Thomas Spijkerboer is Professor of Migration Law at the Amsterdam Centre for Migration and Refugee Law, Vrije Universiteit Amsterdam, where he teaches in the master track International Migration and Refugee Law. His research focuses on gender and sexuality, the role of courts, border deaths, and coloniality. Eric Tucker, Professor, Osgoode Hall Law School, York University, Toronto and Distinguished Scholar in Residence, Cleveland Marshall College of Law, Cleveland State University, has written extensively on labour and employment law issues, including books on the history of health and safety regulation and collective bargaining law in Canada. He has also provided expert witness affidavits in support of litigation by farm workers seeking health and safety and collective bargaining rights. In 2019 he received the Sefton-Williams Prize for Contributions to Labour Relations, presented by the University of Toronto’s Woodsworth College and the Centre for Industrial Relations and Human Resources. Luna Vives is a political geographer and an Assistant Professor in the Department of Geography at the Université de Montréal. She has a background in Sociology (Universidad Complutense de Madrid) and Geography (University of British Columbia, PhD). Luna’s research focuses on how governments use their territorial borders to stop and manage unwanted migration and she is particularly interested in the tension between border enforcement and the protection of migrants’ rights. She is currently documenting the harmonization of Search and Rescue systems in the Mediterranean and studying the externalization of the southern European border to countries in the Maghreb and West Africa. Luna has published in a variety of geography and migration journals including International Migration, Migration Studies, Political Geography, and the Journal of Ethnic and Migration Studies. Anthea Vogl is a senior lecturer in law at the University of Technology Sydney (UTS). Her research addresses racialized practices of border control, with a particular focus on the use of administrative powers and decision-making to exclude refugees and noncitizens. She lectures in Administrative Law, Refugee Law and Legal Theory and is the national co-convenor of Academics for Refugees in Australia. She has spent time as a visiting fellow at the Berlin Institute for Integration and Migration at Humbolt University and the Centre for Criminology

Contributors  xv at Oxford University. Her current research addresses post-arrival refugee and asylum seeker deterrence practices and Australia’s program for the private sponsorship of refugees. Leah F. Vosko, FRSC, is Professor of Political Science and Tier 1 Canada Research Chair in the Political Economy of Gender & Work at York University. Her current research examines employment standards enforcement and access to rights among workers labouring transnationally. Her latest sole-authored book, Disrupting Deportability: Transnational Workers Organize, was published by Cornell University Press in 2019 and her latest co-authored book, Closing the Employment Standards Enforcement Gap: Improving Protections for People in Precarious Jobs, was published in spring 2020 by University of Toronto Press. Scott D. Watson is Associate Professor of International Relations in the Department of Political Science at the University of Victoria. He holds a PhD in Political Science from the University of British Columbia (2006) and is the author of The Securitisation of Humanitarian Migration (2009, Routledge) and International Order and the Politics of Disaster (2019, Routledge). He has published articles in Millennium: Journal of International Studies, Security Dialogue, International Political Sociology, International Migration, Nations and Nationalism, and  International Relations, among others. He is an associate editor of the Journal of International Relations and Development and Migration, Mobility and Displacement, and is currently serving as Department Chair. Kira Williams is a political geographer and post-doctoral fellow at Wilfrid Laurier University, Canada. Her research explores the interaction of international migration, borders and methodology. Kira teaches and studies public policy, statistical programming and human geography. Sarah Zell is Senior Research Associate with the Institute of Urban Studies at the University of Winnipeg. She is a human geographer who completed her PhD at the University of British Columbia and is author of Outsourcing the Border: Recruiters and Sovereign Power in Labour Migration to Canada (2018), which examines migrant worker recruitment and spatializations of borders and state power. Sarah’s research interests centre on international human migration, and specifically settlement patterns, migration policy and governance, and labour mobility. Her publications have contributed to both academic and policy discussions, and she has collaborated on many community-based initiatives.

Acknowledgements

I am deeply indebted to the thirty-five contributors to this collection who have offered their insights and their writing labour to me as much as to Edward Elgar. It is impossible to complete a book such as this without the generosity of many scholars, who become involved in such a project as a matter of friendship and collegiality. In a sense, contributing to someone else’s book is an act of scholarly comity. I have enjoyed the project immensely because of the thoughtful, original, and provocative work that these individuals have gifted to me. It has truly been a pleasure engaging with you, and your work, over the past year and a half and I have learned a great deal. I am very grateful to Natasha Rygnestad-Stahl, Allard School of Law class of 2021, who has worked as my research assistant over the past two years. Natasha has contributed enormously to this book, especially by being the organizational mastermind who made it possible for me to complete this work while serving a term as dean. I also want to thank Daniel Mather at Edward Elgar for talking me into this project, and for making it easy to bring it to completion.

xvi

Abbreviations

ANT API BIC BVOR CBSA ECHR ECOSOC EMPP EU FSWP GRSI HARC HMPPS HUMA ICCPR ICE ICERD ICESCR ID IHC ILO IMP INGOs IOM IRC IRCC IRPA

Actor-Network Theory Advanced Passenger Information Best interests of the child Blended Visa Office Referred Canada Border Services Agency European Convention on Human Rights UN Economic and Social Council Economic Mobility Pathways Project European Union Federal Skilled Worker Program Global Refugee Sponsorship Initiative Humanitarian Asylum Process The prison service in the UK House of Commons Standing Committee on Human Resources International Covenant on Civil and Political Rights Immigration and Customs Enforcement International Convention on the Elimination of all Forms of Racial Discrimination International Covenant on Economic, Social and Cultural Rights Immigration Division Immigration Holding Centers International Labour Organization International Mobility Program International nongovernmental organizations International Organization for Migration Immigration Removal Centre Immigration, Refugee and Citizenship Canada Immigration and Refugee Protection Act xvii

xviii  Research handbook on the law and politics of migration ISC LIFG LMIA LMO NRAD P/TNPs PACR PNG PNR PSR SAH SAR SBT SDGs SLSO STS TFW UN UNDRIP UNGA UNHCR UNRWA WMD

Intelligence and Security Committee Libyan Islamic Fighting Group Labour Market Impact Assessment Labour Market Opinion National Risk Assessment for Detention Provincial/Territorial Nominee Programs Prompt Asylum Case Review Papua New Guinea Passenger Name Record Private sponsorship of refugees sponsorship agreement holder Search and rescue Scenario-based targeting Sustainable Development Goals Stream for Lower Skilled Occupations Science and Technology Studies Temporary Foreign Worker United Nations United Nations Declaration on the Rights of Indigenous Peoples United Nations General Assembly United Nations High Commissioner for Refugees United Nations Relief and Works Agency Weapons of Mass Destruction

1. Introduction to the Research Handbook on the Law and Politics of Migration: law, politics, and the spaces between Catherine Dauvergne

The law and politics of migration are increasingly intertwined. Over the past two decades, migration has moved to the centre of the political agenda in all Western liberal democracies, in many states of the global South, as well as in those states that migration scholars often label transit states, which are sites of both arrival and departure and which are neither the West nor the global South. This move to the political centre has been accompanied by growing attention to the legal frameworks for migration, and a tremendous expansion of regulation in an area that was marked as recently as the 1980s and 1990s by high levels of discretionary decision making and a comparative scarcity of legal pronouncements. Not surprisingly, the vectors of politicization and legalization are intertwined and interdependent. This Research Handbook focuses on this overlapping terrain. Key contemporary political shifts have been strongly influenced by migration matters. One need only think of the role played by immigration politics in the Brexit debates, the number of immigration initiatives championed by the Trump government, or the massive forced migration that followed the Arab Spring to have a sense of the political importance of migration at present. All of this was apparent prior to the emergence of the COVID-19 pandemic early in 2020, which served to remind the world that it is still possible for powerful states to close their borders in the face of threats. Indeed, the pandemic threat has proven so significant that opposition to border closings has been scant indeed. The pandemic has rendered closed borders natural and logical in a way that might set migrant advocacy back by decades or more. In the face of this shift towards a complete intermingling of migration law and migration politics, our old frameworks for understanding each of these phenomena are increasingly inadequate. This Research Handbook probes the weaknesses of our older frameworks and aims to chart new directions. The undercurrent of the contributions in this Handbook is that the law and politics of migration cannot be separated from one another at this point in the trajectory of research about migration. One can pull at this thread from either end. From the point of view of legal scholars, the rate of change of migration laws has grown exponentially in the twenty-first century. Where much of the architecture of migration regulation could formerly be attributed to nation-building aspirations, a fuzzy but persistent economic logic, and a scarcely relevant international sphere, the nuts and bolts of migration law provisions have become an area in which the frequently studied prosperous Western states are making new rules at regular intervals, and states in the global South, which have scarcely been noticed by Western scholars, are beginning to develop approaches to migration regulation that command attention. In the once paradigmatic ‘nations of immigration’ (the United States, Canada, Australia, and to some extent New Zealand), some aspects of the legal frameworks for immigration have been altered 1

2  Research handbook on the law and politics of migration so dramatically in the past decade that the core principles of a nation built from migration have disappeared.1 Alongside this shift in these much studied stalwarts of migration scholarship come other important alterations that challenge the orthodoxy of migration research. The long-held line between temporary and permanent migration has come to stand for little more than a fervent nostalgia of states. The important distinction between refugees, who have strong rights in the international realm, and migrants, who have almost none, has faded even further. This is an ironic development, to be sure, because the past decade has seen more refugees than any previous time in history, and because international refugee law is proving increasingly strong, despite being under attack almost everywhere on earth. The irony arrives because in the face of these two developments, analysts increasingly write of migrants as an umbrella term, and those of us old enough to be ‘old-fashioned’ refugee law scholars increasingly write of security effects that invariably affect refugees and other migrants similarly. In this way, the politics of refugee law is itself pushing the law aside. Beginning by tugging at the politics end of the thread is equally productive and complex. The early twenty-first century days when minister of migration was a minor cabinet post in most Western liberal democracies are long gone. The political importance of migration is vital in the majority of states around the globe. The COVID-19 pandemic laid bare this phenomenon as it filled our television screens with images of Indian migrant workers dispatched home in haste, of Chinese nationals stranded in Beijing or Shanghai away from their registered homes, of states from around the globe chartering planes to bring diasporic members back within their closed borders, and of how those same closed borders put both food production and migrant remittances in peril around the globe. In addition to the manifest salience of migration to both electoral and everyday politics, the contemporary era is marked by a legalization of this politics. This legalization has arisen in part because the contested terrain of migration politics is often the courts – a perhaps inevitable outcome of rapid growth in the volume of regulation and of deep disputes drawing on the rhetoric and procedural power of human rights. It results as well from increasing use of the strongest tools of state power to insist on exclusion, a move that shifts these politics to the centre of disputes about where the true limits of state power lie. This exploration of limits brings matters of migration to the very centre of questions about what constitutes politics and political legitimacy. In this sense, migration is no longer a question of preconditions for political community, no longer a question solely at the margins. This book takes up the law and politics tension across several sites, and from a range of disciplinary perspectives. The opening section comprises chapters that interrogate this tension broadly. Bloemraad postulates several intertwined explanations for the law and politics overlap, and suggests fruitful directions to move research forward along this fault line. Ellermann and O’Hearn’s work builds on this beginning by calling our attention to what is neglected when a focus on migration law and politics overlooks Indigenous presence. This is one of the most pressing, and most difficult, issues for migration scholars in the traditional ‘nations of immigration’, where immigration narratives have been an important colonial tool for making Indigenous peoples invisible. The chapters by Chung and Kaushal each contribute to broadening the frame by addressing important questions of citizenship. Chung looks at the migration and citizenship politics of East Asian states and offers a challenge to Western framings of both migration and belonging. Kaushal considers how aspects of membership and community are constitutionalized, and the ways in which contemporary politics are making membership more fragile. Like Chung, she prods at the notion that citizenship is capable of accounting fully for membership in a political community. Marsden, Tucker, and Vosko’s

Introduction  3 chapter rounds out the opening section by demonstrating the persistent slippage in discourses about migrant labour, a slippage which papers over a deep societal uncertainty about how to understand, and therefore to regulate, migrant labour. Together, this group of chapters provides explanations for how and why the law and politics of migration intertwine. The second section of the book examines institutions of migration management and the pressures that are changing them. This collection of analyses, offered by authors from five disciplines, deepens our insight into the merging of law and politics by querying the internal functions of institutional landmarks in the sphere of migration governance. One contribution here is, of course, to establish what those landmarks are. In the opening chapter of this section, Paquet and Côté-Boucher consider the role of bureaucratic institutional cultures in migration enforcement and unearth subtle and not-so-subtle shifts that have taken place within these cultures in recent years. Madokoro looks at the notion of sanctuary, revealing how it has been a sustaining institution of migration management for centuries, and how it has been politicized distinctly at different moments in time. Labman and Zell recount how categories which scholars and states have used to categorize migrants for at least half a century have been shifted from within by current political forces. Vives and Williams demonstrate how statistics offered by state and non-governmental organizations generate an image of who counts, and who does not, in our global understanding of migration. This analysis shows quite powerfully that data is a vital aspect of our institutional architecture for governing migration. The final two chapters in this section point us towards new institutional aspects of migration, compelling us to reflect on current pressures on migration governance that, from an advocate’s point of view, come from opposing directions. Hamlin’s work calls our attention to the increasing influence of big technology corporations in migration management and chillingly demonstrates how their power has moved well beyond that of states. Bond’s contribution presents an analysis of an effort at international scale to establish private sponsorship of refugees as a truly global institution. Courts are themselves a central institution of contemporary migration governance; so much so that an entire section is devoted to them. The contributions here evince that the story of courts and migration has changed a great deal in the opening decades of the twenty-first century. The collective narrative of these analyses is vastly different from what one would have read 20 years ago. This is no longer a time for a hagiography of human rights, and the accompanying veneration of liberal values. What is most apparent here is that Western scholars have by and large ignored the courts of the global South, that those courts are equally engaged on questions of migration and membership, and that we must globalize our view of courts if we are to understand their role in the politics of migration. Spijkerboer opens this section with attention to how the orthodoxy of international law ignores the generative work of courts (and scholars) in the global South, and demonstrates what is lost in this manoeuvre. Juss calls our attention to the failure of courts in the United Kingdom to rise to the challenge of inclusion for Muslim refugees. Galloway’s contribution presents an indictment of Canadian courts for their failure to produce rights jurisprudence capable of addressing twenty-first century realities. Foster and Roberts complete this section of the book with a provocative chapter comparing the work of courts in India and the Dominican Republic when confronted with questions of mass denationalizations. These cases provide a powerful backdrop against which to consider the politicization of courts and to query their capacity or willingness to enshrine the rule of law at community boundaries. Together these chapters introduce new directions for analysis of the political work of courts, and the politics of our choices about to which courts we attune.

4  Research handbook on the law and politics of migration The fourth group of chapters takes a considered look at an area of intense recent expansion in migration management: the sharp end of state power. Looking at the ways in which states act to search, detain, reject, exclude, and repulse non-members, this quintet of chapters exposes the ugliest features of migration governance. Bosworth opens this section with reflections drawn from more than a decade of detailed empirical work on migrant detention in the United Kingdom. Her conclusions highlight the incredible complexity of racism in this context, and call upon us to understand how this complexity reverberates throughout our understanding of migration. Ghezelbash calls our attention to hyper-legalism as a state tactic, a political device allowing states to strip law of its most robust intent. Like Ghezelbash, Vogl draws her empirical examples from Australia, the global hegemon of punitive migration powers. Vogl’s analysis deftly shows how the entanglement of criminal and migration laws now known as ‘crimmigration’ takes on extravagant dimensions when one focuses on those seeking asylum in particular. This work provides a sharp insight into the deleterious human rights consequences of failing to politically disentangle migrants and refugees. Arbel and Joeck’s chapter offers a completely original analysis of migrant detention by looking at how the COVID-19 pandemic has very quickly ushered in changes in detention patterns in Canada, arguing that these changes portend a system overhaul. Goold’s insights into how privacy rights are degraded in border settings by conceptualizing the border as exceptional completes the section’s review of the often unchecked reach of the state in migration settings. The concluding group of chapters addresses international governance of migration and provocatively suggests that the relationship between law and politics is at once the only thing that makes governance possible, and the very thing that seems to guarantee that success is perpetually just over the horizon. Abu-Laban’s work opens this section with a clear-headed reflection on the contrast between the governance regimes for Palestinian refugees on the one hand, and all other refugees on the other. Her argument that much could be gained by dissolving the distinction between the two regimes shows how the political tensions of the mid-twentieth century are preserved in the present day. Abu-Laban’s chapter is a perfect example of how high-stakes politics impairs the development of functional law. The four chapters that follow address the most recent international governance innovation, the Global Compact for Safe, Orderly and Regular Migration approved by the United Nations General Assembly in December 2018. This newest of international instruments exists at the present moment as promise and potential, yet untested. It was deliberately designed as more politics than law, skirting the requirement that states take on specific obligations as part of their support of it. This Global Compact will certainly be the centre of attention for migration scholars in the near term. Watson and Robinson draw on actor–network theory to evaluate whether the Compact successfully mediates the knowledge controversies that surrounded its development, and conclude that the Compact functions in a realm of ontological politics. Grey takes as a starting point the troubling idealism of the Compact and argues that its value is as a ‘social theodicy’ in the Rawlsian sense: an ideal that can serve to reconcile the world to large-scale migration. Guild assesses the Compact’s potential to bring us closer to the Sustainable Development Goals that ostensibly inspired it despite compelling evidence that a development logic does not, in fact, underpin much South to North migration. She asserts that despite opposition from some significant actors such as the United States, the Compact does succeed in changing the landscape of international governance through its insistence on cooperation between states, and through states’ acknowledgement of cooperation as a norm. Hennebry and Piper consider the Compact from the perspective of labour rights for migrant

Introduction  5 workers. They argue that during the development of the Compact, private sector corporate actors occupied the same terrain as traditional civil society groups, leading to a conflation of views and a degrading of rights advocacy. The result is that while the Compact moves towards increasing international governance, it does so through a sharp rise in privatization. Each of these chapters provides a grounding for future assessments of the Compact as implementation moves forward in the near term. The Compact will be a significant test of how and whether the law and politics of migration can intertwine towards progressive outcomes at a juncture in history when migration politics are especially mean-spirited in many corners of the globe. This concluding cluster of chapters on the Global Compact for Safe, Orderly and Regular Migration points us towards two noteworthy absences in this collection. The first is the absence of analyses of the Global Compact on Refugees, concluded at the same time as the Migrants Compact. The straightforward explanation for this is that the Compact on Refugees simply lacks enough originality to trigger scholarly attention. For the most part, the Compact on Refugees does little more than gather together existing (and frequently neglected) commitments, and reinforce state sovereignty.2 The existence of two compacts rather than one integrative instrument serves to underline that states have an interest in keeping refugees analytically distinct from other migrants (an interest which is anchored in the commonplace desire to preserve sovereignty), and that this interest is paralleled by refugee advocates (whose interest is in preserving the strong rights regime of the Refugee Convention). The separation of refugees and migrants serves both of these purposes well. But it ensures that analysis of the law and politics of migration is impaired by failing to keep all the complexities in view simultaneously. Bloemraad confronts this problem directly, and several other contributors (Vogl; Ghezelbash; Galloway; Vives and Williams) present work that engages directly with the problem and demonstrates its consequences. Despite this, more attention to what is lost by embracing the analytical separation of migrants and migrants-who-are-refugees would be an important addition in some future iteration of a handbook on the law and politics of migration. The second notable absence that is highlighted by the concluding group of chapters is the lack of work that begins from a global South perspective. Spijkerboer addresses this persistent problem in Western migration scholarship head-on in his chapter, and offers a cogent account of the explanations for this pattern. But aside from including such an account, this Handbook does not succeed in countering this trend. This too ought to be a next-step priority for future scholars. The story of the work collected here sheds some light on why this pattern persists: aside from the specific national case studies, each of these chapters attunes to the global South; the chapters focused on international governance engage the global South directly; much of this work is highly original, and takes inspiration from a deep concern about people and lives in global South states. None of this is the same as beginning this enterprise from a Southern perspective and with a Southern voice. At the time of writing, the globe is six months into the COVID-19 pandemic. It is already apparent that the pandemic is challenging global and local understandings of migration. Remarkably, several of the chapters in this book are already offering interpretations of the import of COVID-19 – a risky but tantalizing enterprise in mid-2020, to be sure. It is still possible to hope, as I do, that the pandemic may subside, thwarted by vaccine, over the coming year. If that comes to pass, the new normal may not look so terribly different from the old. But if this optimism proves foolhardy, COVID-19 may yet stress the linkage between the law and politics of migration to such an extent that utterly new forms emerge.

6  Research handbook on the law and politics of migration The principal achievement of this Handbook is to demonstrate the increasing overlap between migration law and migration politics. This is a fraught terrain, where the past two decades have brought significant change, marking a path that is very different from that of the twentieth century. A complete intertwining of law and politics puts the rule of law in peril. This collection provides ample evidence of such peril. Given the amplification in recent years of states’ most draconian powers, there is a vital need for the rule of law. The work presented here suggests that we have yet to heed this warning. Indeed in the international sphere, the Global Compact for Safe, Orderly and Regular Migration (especially in contrast to the Compact on Refugees) suggests we are in danger of being seduced by the deceptive ease of politics in comparison with the sharp lines of law. It is in the space between law and politics that the rule of law can – must – thrive. It is this space that migrant advocates must urgently work to preserve, and that scholars must continue to chart.

NOTES 1. This is an argument that I explored at length in The New Politics of Immigration and the End of Settler Societies. 2. See James C Hathaway (2018). See also, the entire collection of articles in the International Journal of Refugee Law (2018) volume 30, issue 4.

WORKS CITED Dauvergne, C. (2016) The New Politics of Immigration and the End of Settler Societies, New York: Cambridge University Press. Hathaway, J. C. (2018) ‘The Global Cop-Out on Refugees’, International Journal of Refugee Law, 30(4): 591–604.

PART I FRAMING THE LAW AND POLITICS OF MIGRATION

2. The politics of migration law: interests, ideas, and institutions Irene Bloemraad

In studying migration law and politics, normative ideas matter to legal scholars, political theorists, and philosophers. They are centrally concerned with what is just or fair or democratically sound, and they ask whether laws live up to these moral or normative standards. In contrast, most social scientists analyse empirical data to understand the factors and processes that produce law and drive politics. This research is dominated by theories of interests and institutions. This chapter synthesizes the ‘politics of immigration’ literature to take on the relative importance of interests, ideas, and institutions, drawing on scholarship on the United States, Canada, and Western Europe.1 I argue that a useful way to bridge normative and empirical work is to examine the role of law on the politics of immigration and asylum policy, conceptualizing law as both a tactical strategy and a source of discursive claims-making. In synthesizing the research on migration politics, it is analytically useful to distinguish between law as a dependent or an independent variable, even while acknowledging interdependencies and recursive causal processes. In the language of statistical hypothesis-testing, law can be considered a ‘dependent variable’, that is, something to be explained. What determines migration law? Do normative or political ideas affect the contours of eventual laws? Alternatively, law can be considered an ‘independent variable’, that is, a determinant or cause of other phenomena. How important is the law in driving migration politics, relative to political interests, resources, institutional power, and so forth? Do moral ideas embedded in law affect migration politics? Law may provide moral legitimacy to some viewpoints over others; it may constrain action because of its normative weight; or it might serve as a coercive instrument. Considered this way, for much of the research on immigration politics, ‘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 or interests influence policy and law; these views or interests are usually identified as economic or cultural. Yet a focus on ordinary voters, understandable in advanced democracies, leaves us with a paradox: since the Second World War, Western democracies have generally admitted more migrants (immigrants and asylum seekers) than the public says it wants. To understand the politics of migration, we thus need alternative models. Some alternatives focus on elite or powerful groups’ interests as driving immigration law. Other approaches underscore the importance of institutions, as constraints and opportunities, or how norms (such as liberal constitutionalism) may shift policy and law to more expansive orientations. Reviewing the literature, we also find that scholarship on asylum and refugee policy is fairly disconnected from that on immigration politics. Social science explanations for humanitarian policy have focused more on foreign policy, as well as the influence of rising human rights norms, than on voting interests or institutions. However, the current popular backlash against asylum seekers suggests that, moving forward, researchers should analyse 8

The politics of migration law  9 all ‘entry’ policies using similar frameworks of interests, ideas, and institutions, rather than marginalizing refugee policy as a specialized area of study. There has been less empirical work that considers law as an independent variable, that is, as something that shapes legislative or policy outcomes. This should be an important cornerstone of future research. I propose a greater focus on law as a tactic and as discourse. Thus, in this chapter I do not focus on the influence of case law or the impact of specific court decisions for immigration politics. Rather, I consider the role of law in migration politics more broadly. Social science research highlights how 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 (such as in the many challenges to United States President Donald Trump’s executive orders). Studying court challenges as a tactic opens up questions beyond a particular court decision. What are the trade-offs of legal strategy as political action and how might this vary across legal and political systems? In what legal systems or time periods does law advance migrant-inclusive practices, and when is law conservative and exclusionary? Second, a burgeoning social science literature around immigrants’ collective action also understands the law as a cultural and political discourse (or even resource) that articulates or frames claims, and provides individuals with legal consciousness. What are the possibilities and limits of law as such a political tool? In short, the literature on the law as strategy or discourse is much less developed than the voluminous scholarship on the law as legislative outcome. Looking forward, I argue that we need greater cross-fertilization between standard political science models, research on social movements, and scholarship in the field of law and society, with a particular emphasis on the claims-making of migrants and their allies.

LAW AS A ‘DEPENDENT VARIABLE’: EXPLAINING IMMIGRATION LAW AND LEGISLATION2 The bulk of social science research on the politics of immigration law seeks to explain the contours of entry policy, notably the rules regulating the migration of foreigners who wish to stay in a country beyond a few weeks of tourism or business travel.3 I synthesize this literature by focusing on researchers’ attention to interests, ideas, and institutions as explanatory factors, and I argue for more bridging across a scholarly divide separating those studying immigration or refugee and asylum law. Interests, Immigration Politics, and ‘Entry’ Law A common approach to explaining immigration law adopts an interest group perspective that models power relations between competing domestic actors. One version views migration law as the outcome of electoral contests embedded in pluralistic politics. Parties and politicians compete for votes, and public opinion is consequential. Conventional wisdom – and some scholars – assume that the public’s views on immigration largely stem from voters’ sense of economic threat or opportunity (e.g., Scheve & Slaughter 2001). However, the bulk of research on public opinion and immigration finds that restrictionist orientations are not strongly tied to an individual’s personal economic situation or even the level of immigration in a country, but instead correlate weakly to the overall state of the economy (Wilkes, Guppy, & Farris 2008). Even then, the relative weight of economic factors in driving public opinion on immigration

10  Research handbook on the law and politics of migration policy is limited. More salient are people’s cultural concerns, their prejudice toward minorities or outsiders, or the degree to which they feel that migrants change a country’s national values or identity (Burns & Gimpel 2000; Sides & Citrin 2007; Hainmueller & Hopkins 2014).4 Some social scientists consequently envision immigration politics (and resulting law) as driven by both cultural concerns and economic interests, motivations that can cut across traditional ‘right’ or ‘left’ party orientations. For instance, historically in the United States, business interests entered into coalitions with progressive cultural pluralists to open entry, while labour unions found common cause with cultural conservatives to support restrictions (Zolberg 1999; 2006; Tichenor 2002). A voter-centred electoral model is simple and elegant, and it fits with the assumption that democratic countries are governed by majority rule and the outcomes of elections. Yet many researchers who study elections and public opinion acknowledge a curious failure in the electoral model for immigration politics: the number of immigrants entering and settling in a country tends to be consistently higher than what the public wants. A special report on How the World Views Migration commissioned by the International Organization for Migration found that in all G20 counties, less than a third of survey respondents thought migration should be increased. Indeed, large majorities in countries such as the Russian Federation (70 per cent), the United Kingdom (69 per cent), and Italy (67 per cent) explicitly wanted less migration.5 Even in immigrant-friendly Canada, 30 per cent of respondents wanted fewer immigrants, 45 per cent supported present immigration levels, and only 22 per cent thought the country should increase the number of immigrants. Of course, Russia, the UK, and Italy presently do have political leaders who embrace harsh immigrant-restrictive language, and worries over immigration have featured prominently in recent political contests, including the Brexit vote that pushed the UK to leave the European Union. So voters’ preferences do play out in public discussion. However, in these countries and others, the political rhetoric tends not to be matched with actual change in migration policy or demographic trends in immigration numbers. Various studies find policy convergence over time and across economically advanced democracies, convergence that – perhaps surprisingly – moves in the direction of more liberalized entry (Helbling & Kalkum 2017; de Haas, Natter, & Vezzoli 2016).6 Given the gap between ordinary voters’ policy preferences and actual immigration law, an alternative interest group explanation conceives of political contention over immigration not as a simple product of pluralistic politics, but rather as a contest between collective actors embedded in a capitalist system that favours concentrated economic power. For example, Freeman’s (1995) influential model argues that the benefits of immigration are concentrated among particular businesses or economic sectors and that these groups have the resources and organizational capacity to determine immigration law, sometimes in partnership with ethnic lobbies. The opposition, Freeman contends, is relatively weak since the costs of migration are diffuse and those who compete with immigrants in the labour market are poorly organized and have few resources. Messina (2007), reviewing change in European immigration policy from World War Two through to the 1990s, similarly underscores the weight of economic logics, though in the European case such logics were also advanced by bureaucrats and government planners eager for migrant labour to rebuild war-torn economies, not just by private capitalists.

The politics of migration law  11 Beyond Interests: The Power of Ideas and Values Whether pluralistic or embedded in an unequal political economy, ‘interest’ approaches privilege the material and cultural motivations of individual voters and organized groups. A different explanation of what Cornelius, Martin, and Hollifield (1994) call the ‘control gap’ paradox – that is, between voter preferences and actual migrant entry – focuses on the causal impact of ideas and norms – in particular, liberalism and human rights. In an early argument in this vein, James Hollifield (1992) contended that both economic and political liberalism align with an expansive view of migration. Economic liberalism believes in the inherent value – and economic productivity – of free markets, defined not just by limited regulation of finance and capital, but also by the relatively free flow of labour, or people. Political liberalism similarly embraces individual freedom and a robust set of civil, political, and social rights to protect people from the state, with limited restrictions on individuals’ ability to act in what they see as their own best interests, including decisions around migration.7 In a complementary but distinct argument, Yasemin Soysal (1994) concluded, in the same decade, that human rights norms were raising ‘personhood’ above traditional state sovereignty such that country-specific citizenship became less important in the face of individual rights guarantees that provided non-citizen migrants in Europe with civil rights, social rights, and even some political rights. Unlike ‘interest’ models, these explanations privilege ideas and ideals as a determinant of immigration politics and law. Building from the ‘ideas’ approach, a key question is the location of values and ideals. Scholars such as Hollifield (1992) and Soysal (1994) do not argue that such norms are necessarily pervasive among the general public, influencing migration policy through electoral systems. Rather, moral values are embraced by elite decision-makers and, especially, are embedded in the courts of liberal-democratic countries or regional judicial or administrative bodies. In the next section, I elaborate further on research that examines whether the courts – and the law in general – are an explanatory factor that drives immigration policy and politics. Here it suffices to note that some scholars believe that expansive ideas about human rights and individual self-determination matter in explaining immigration policy, but that such ideas or norms must be held by specific, consequential actors, such as party leaders, or powerful institutions, such as the European Court of Human Rights. Others who believe that ideas matter take a more integrative approach. For instance, Hampshire’s (2013) synthetic framework identifies four constitutive features of the liberal, democratic state – representative democracy, constitutionalism, capitalism, and nationhood – that drive the competing interests and norms of immigration politics. In his words, ‘Mobilization through majoritarian democratic institutions, often based on claims about the protection of national identity and values, generates pressure for more restrictive immigration and integration policies, whereas employer demand for migrant labour and appeals to universal rights both generate pressure for more open, inclusive policies’ [3]. Actual immigration law is, in this approach, an outcome from the battle between both interests and values. Interests and Ideas as Embedded in Institutions A third approach to explaining immigration law and policy goes beyond interests and ideas to consider the significance of institutions, especially separation of powers between executive, legislative, and judicial branches of government, as well as the configuration of electoral and

12  Research handbook on the law and politics of migration court systems. Institutions are important, it is argued, because they shape the very articulation of interests and ideas in society. They also set up the rules of the political game and the relative power of actors in such a way as to make particular immigration policies and legal outcomes more likely than others. Put differently, we might imagine that, across liberal democracies, roughly similar (economic and cultural) interests and (restrictive or expansive) ideas on immigration are at play, and yet countries vary significantly in their policies, both on the number of immigrants permitted entry and on the types of immigrants (permanent or temporary; economic, family, or humanitarian). The United States, for example, has great difficulty in passing immigration law through legislative means, even though Congress is designated the key institution for migration law. Congressional gridlock consequently produces substantial interventions by the judicial and executive branches. Tichenor (2002) argues that United States immigration gridlock occurs because of the multiple institutional ‘veto points’ in the American separation-of-powers system. This allows opponents to block reforms through multiple pathways. In countries with fewer veto points and a more tightly integrated legislative and executive political structure, migration law should be easier to change. In short, institutional dynamics have a determinative impact on immigration policy and law. Humanitarian Migration Law and Policy: Refugees and Asylum Seekers Much of the politics research viewing immigration law as a dependent variable concentrates on family reunification or economic migration. Scholars who study refugee or asylum law have remained somewhat apart from these debates, more firmly rooted in the fields of law or forced migration studies. An open question for researchers is whether the political battle over migrant entry varies by the type of migration. I posit that explanations attentive to interests, ideas, and institutions can also help us to understand the contours of policy and law for humanitarian migration. Such an extension is not, however, prevalent in existing scholarship.8 When it comes to humanitarian migration, the historical record suggests a new set of interests beyond those held by individual voters or interest groups such as unions or business lobbies. Scholars of refugee policy underscore the foreign policy interests of the state as an additional determinant of law. For example, during the Cold War, United States refugee and asylum policy favoured those leaving Communist regimes and refused the claims of those fleeing countries allied with the United States (Zucker & Zucker 1992; Loescher & Scanlan 1986). After the Cold War, acceptance rates declined and deterrence policies proliferated, causing some researchers to suggest that asylum seekers had become less valuable to Western states once they lost their geopolitical power to critique communism (Chimni 1998; Hamlin 2012). One way to reconcile the study of migration politics across humanitarian and other types of migrants is to posit that ‘interests’ matter, but the particular types of interests vary by the legal migrant category under question. Hampshire (2013), for example, contends that economic interests are less important for asylum policy than for other migrant entry policies, reducing one of the ‘expansionist’ pressures on migration. Future research needs to study whether this is, indeed, the case. Ideas are a key argument in research seeking to explain humanitarian migration law. In total, 147 countries have ratified the 1951 Refugee Convention or the 1967 Protocol, pledging to accept and adjudicate asylum claims on their territory and not to send back people determined to be bona fide refugees (the principle of non-refoulement). An important reason for the widespread support (at least on paper) for such humanitarian protections lies in moral ideals:

The politics of migration law  13 the horrors of the World War Two and growing postwar acceptance of human rights make it hard for countries to reject the idea of asylum. This ideal presumably feeds into actual law and policy. Indeed, as with economic and family-based entry policy, research reveals a liberalization in asylum acceptance across economically advanced democracies, though one paired with increased control (Helbling & Kalkum 2017; de Haas, Natter, & Vezzoli 2016).9 In fact, some scholars have argued that the ideas and internationalism that drove asylum law over the past seven decades also played a determinative role for entry policy more generally (FitzGerald & Cook-Martín 2014). This again suggests that future scholarship should close the gulf between those who study what produces ‘immigration’ law and those who study refugee and asylum law. Finally, the third approach to immigration politics – institutionalism – is also relevant to humanitarian law and policy. Since the vast majority of liberal democracies have signed up to the United Nations Convention or Protocol – a common document for the world of nations – we might expect roughly similar outcomes in refugee acceptance and asylum determination. Yet, as Hamlin (2014) shows, there is striking variation in acceptance rates between receiving countries, even holding constant asylum seekers’ country of origin. Hamlin argues that variation occurs because countries have developed distinct institutional models for conducting refugee determination. These systems are more or less insulated from the politics of border control, such that similar refugee claims are more successful in Canada than in Australia. American asylum policy tends to be particularly influenced by foreign policy objectives (Salehyan & Rosenblum 2008). Beyond cross-national variation, scholars also document internal variation in asylum decision-making, raising further questions about the relative importance of ideas and institutions. In the United States, for example, the individual decision-maker or regional adjudication system to which an asylum seeker is assigned can be the single biggest determinant of whether they are granted refugee status, even when applicants’ country of origin is held constant (Ramji-Nogales et al. 2009; Rottman et al. 2009). In short, just as in economic or family-based migrant entry, interests, ideas, and institutions matter for humanitarian migration law, policy, and outcomes.

LAW AS AN ‘INDEPENDENT VARIABLE’: HOW LAW SHAPES THE POLITICS OF IMMIGRATION The bulk of social science research on immigration politics considers the ‘law’ as a dependent variable; that is, it seeks to explain the ‘law on the books’ that determines the rules of entry for labour migrants, family reunification, or humanitarian migration. More recently, a dynamic, growing social science literature has considered the law as an ‘independent’ variable, influencing immigration politics. The focus is not on a particular legal case or the specific arguments debated before a judge or panel of judges, but rather the impact of ‘law’ more generally. I focus on two ways to consider law as an independent variable: law as a tactic, and law as a cultural or political discourse that has political and social power. Law and Recourse to Courts as Political Tactic Much of the scholarship on immigration politics, irrespective of whether it takes an interests, ideas, or institutional perspective, is primarily concerned with electoral and institutionalized politics. But as Bloemraad, Voss, and Lee (2011) argue, in the case of non-citizens, a social

14  Research handbook on the law and politics of migration movements perspective can be more appropriate. Social movement scholars focus on unconventional or extra-institutional politics: the collective, often disruptive activities of people who feel shut out of electoral or elite politics and who try to enact political change through protest, demonstrations, and other contentious actions. In the United States, millions of immigrants took to the streets in 2006 to call for comprehensive immigration reform (Voss & Bloemraad 2011; Zepeda-Millán 2017). Over this time, and into the Obama presidency, the ‘DREAMer’ movement of undocumented youth and their allies helped to drive the creation of the Deferred Action for Childhood Arrivals (DACA) programme (Nicholls 2013). Immigrants and their allies have also mobilized outside of the United States, sometimes taking to the streets in very public displays, as in Italy (Oliveri 2012; Cappiali 2016); at other times, they work underground to help asylum seekers or clandestine migrants in a ‘new’ sanctuary movement (Toubøl 2017). Research on other social movements finds that movements often develop distinct streams of activism: some advocates engage in direct action, others try to influence legislators, and yet others attempt to use the courts to advance movement goals (Munson 2008). In the United States, the African American civil rights movement is often seen as a touchstone. In militating for equal rights in the 1950s and 1960s, the civil rights movement engaged in moral suasion directed at legislators and the American public, with street-level activism from marches to bus boycotts, and it advanced claims through litigation in the courts. Key court decisions such as Brown v Board of Education 1954, which sought to desegregate public schools, are held up – at least in the public imagination – as major successes that advanced integration and equal rights, and also encouraged further activism.10 These examples also inspired activists in other social movements, including those who advocate for immigrant rights. Some see the United States Supreme Court decision Plyler v Doe 1982 as an analogous key court case: the court here declared that undocumented children had a constitutional right to attend primary and secondary school. Appeals to law and the court system can thus be seen as a tactic in the contestation around immigration politics. The tactical advantage of law and courts should be conceptualized as disparate over time and countries. It is likely more useful in moments of threat, and in institutional systems with strong judicial review. During the Trump administration, migrant advocates in the United States regularly took recourse to the courts to stop executive actions against refugees, asylum seekers, Muslim migrants, the undocumented, and a range of other non-citizens. Observers have also underscored immigrants’ juridical strategies in Europe, especially as litigants move between domestic and European courts. While scholars debate whether court rulings are shaped mostly by domestic administrative or constitutional norms (Joppke 1998; Guiraudon & Lahav 2000) or by supranational law and institutions (Sassen 1996; Soysal 1994), they concur that courts are critical actors shaping entry policy and politics. As important actors, courts are often presumed to push a more expansive or inclusionary approach to immigration. More recently, however, scholars with a constructivist legal approach argue that courts have been quite moderate – not judicial activists. These analysts claim that the influence of legal decisions in expanding entry or staving off deportation is overstated, whether in the United States and France (Kawar 2015) or in German family migration law (Bonjour 2016). Still, even revisionist scholars believe that rights language and the selective appeal to court decisions by politicians and civil society actors can influence immigration politics due to the moral standing of law and the courts.

The politics of migration law  15 Future research needs to investigate more systematically whether courts have helped to advance immigrant rights – and push politics into a more inclusionary direction – or whether legal appeals are a way to reinforce sovereignty and exclude non-citizens. For example, rights protections in the United States are in some ways expansive, but in others they are restrictive. The protections of the Bill of Rights and key constitutional amendments refer to ‘persons’, not citizens. Nevertheless, the courts have given Congress broad latitude to control the entry of people onto United States territory and to permit the deportation of non-citizens, even long-time residents with legal resident status. Arguably, the courts reinforce a ‘hard’ external border against non-citizens, and allow for their deportation – especially when national security is evoked – but are ‘softer’ and more protective of non-citizens’ rights once in the country (Bosniak 2008). In 1994, for example, the courts declared as unconstitutional a California initiative to eliminate virtually all social services for unauthorized immigrants, but in 2018 the United States Supreme Court upheld President Donald Trump’s travel ban against nationals from seven countries, five of which are Muslim-majority countries, as falling within the bounds of presidential authority and state sovereignty. Court battles are an integral part of understanding immigration politics and policy, but their progressive record is mixed. We also need to better understand whether recourse to the law and courts, as a movement strategy, works better in some social and political contexts than in others. In the United States debates over immigration frequently find their way into courts, but this happens less in Canada. Bloemraad and Provine (2019) posit that in Canada, policy formation and administration are more firmly rooted in the bureaucratic state. In the United States, judicial review has been institutionalized – and accepted as a political strategy – from the earliest days of the republic. The American constitution gives courts significant power to enforce individual rights against local, state, and federal legislative and executive action. In contrast, the Canadian equivalent to the US Bill of Rights, the Canadian Charter of Rights and Freedoms (Charter), did not become part of the constitution until 1982, almost 200 years later. Prior to the Charter, the system of parliamentary supremacy in Canada meant that legislation could not be directly challenged through individual rights claims in the courts. With the adoption of the Charter a ‘rights revolution’ started in Canada, bringing advocates’ available strategies closer to the United States system, but significant differences in the articulation and use of courts and rights language remain. Law as Political Discourse, Cultural Resource, and Social Standing Law also matters for immigration politics in more discursive, symbolic, and cultural ways. Rights language arguably has more resonance in the United States than in other Western democracies due to the long history of constitutional review and the legacy of court rulings in impacting civil rights and immigration policy. But at a personal level, law can also build a sense of standing among immigrants – or undermine their sense of personhood – thereby affecting their willingness to engage in political action. The growing research on immigration and legal consciousness is informative here. Because legal status and rights carry the imprimatur of law as well as governmental and social legitimacy, they create moral legitimacy and a sense of standing (Gleeson 2010). For instance, Abrego (2008; 2011) argues that passage of AB 540 (An act to add Section 68130.5 to the Education Code, relating to public postsecondary education 2001), a California state law that allows undocumented young people in California to pay in-state tuition at Californian

16  Research handbook on the law and politics of migration post-secondary institutions, gave those young people a sense of legal standing and consciousness. Being recognized in a law passed by the state’s legislative assembly helped to mitigate the stigma of illegal residence and spurred young people’s mobilization, even as the actual number of students who were able to take advantage of broadened educational access was modest. In a similar way, a country’s designation of citizenship to immigrants through naturalization law might increase new citizens’ feelings of legitimacy and standing – and their claims-making – even if they previously held legal residency (Bloemraad 2006; 2018). The process of government selection and state-directed settlement may also affect refugees, providing a message of recognition and legitimacy that could help them to challenge some of the vulnerabilities they face (Brown 2011).11 With a sense of standing, these individuals, whether newly naturalized or partially recognized undocumented residents, might become more active in the political system.

THE PAST AS AN INTERPRETATIVE MIRROR: CRYSTAL BALL OR A WARPED REFLECTION? Existing social science scholarship on immigration politics and law necessarily studies the events of the past, even if that history was only last year. The frameworks of interests, ideas, and institutions, or the insights from social movement research on law as tactic and discursive resource, are built on past actions, actors, and outcomes. Do these insights serve as a crystal ball to understand the present and future, or do these frameworks offer a warped reflection of the present, like a carnival house of mirrors? Researchers should attend to a number of trends that might make the future different from the past. First, whether in the United States or in various other liberal democracies, political polarization has intensified to an alarming degree, with immigration as one key dividing line. The old ‘strange bedfellows’ political coalition around immigration in the United States (or some European countries) has broken down, at least for the moment. Wong (2016) argues that over the past decade, United States political parties have taken entrenched partisan positions rooted in views on ethno-racial diversity and the long-term pay-offs of a demographically changing electorate. Peters (2017) also argues that the interest group landscape has shifted dramatically, though she points to the impact of globalization, which has led many business interests to move factories overseas rather than advocate for low-skilled migration; business off-shoring leaves room for nativist groups to push for restriction. Second, with the end of the Cold War, the appeal to foreign policy and national security – which at some moments meant generosity to (some) migrants – has become decidedly exclusionary, especially combined with the post-9/11 ‘war on terror’. Not only do political scares about (Islamic) terrorists spotlight the fragility of the West’s commitment to humanitarianism; they also underscore the constructedness of categories such as ‘refugee’. The politics of humanitarian migration has become, for most intents and purposes, like any other immigration policy. If much of the post-World War Two period up to 2001 saw convergence among liberal democracies to more generous and inclusionary migrant policies, the twenty-first century might instead be witnessing a turn to joint deterrence (Dauvergne 2016; Mountz 2010). Finally, a possible bright spot is the increasing incorporation of immigrants and their children into regular, formalized politics. While no European country has wholescale birthright citizenship, unlike most countries in the Americas, most children of immigrants in liberal

The politics of migration law  17 democracies become citizens of the country where they reside.12 They and their parents are comprising an increasingly significant share of the population and the electorate. Older, native-born voters tend to be the most suspicious of immigrant-driven diversity, but their political voice will diminish over the next decade or two. There is no guarantee that immigrants and their children will be more generous in how they treat non-citizens and would-be migrants – long-settled immigrants famously look down on the newest wave to ‘step off the boat’ (or the plane) – but they are likely to have more inclusionary views than those without immediate migrant ancestors. If public opinion and elections matter for immigration politics, then the growing immigrant-descended electorate offers some hope for optimism regarding the future generosity of migration law and policies.

NOTES 1. 2. 3. 4. 5. 6. 7.

8.

9.

10.

The focus on North America and Western Europe is partly due to my limited expertise outside these regions, and partly reflects the fact that the bulk of research focuses on these countries. Research on the politics of immigration law must become more global in its analysis. This section draws on ideas elaborated more fully in Bloemraad and Hamlin (2020). Other areas of law and policy – such as the determinants of integration policy (citizenship, multiculturalism, refugee resettlement), deportation policy, or denationality – have drawn less attention. Given space constraints, I focus on entry policy. Reviewing the literature on public opinion on immigration, Hainmueller and Hopkins (2014) call the economic self-interest argument a ‘zombie theory’ – an argument that comes back time and again, seemingly immune to the significant evidence disproving (or ‘killing’) it. In the European Union, an estimated 48 per cent of the general public wants decreased immigration (and only 8 per cent want an increase); in the United States, the numbers are 40 per cent and 23 per cent, respectively (International Organization for Migration 2015, [41]). For example, in their analysis of family-based and economic immigration policy across 33 OECD countries from 1980 to 2010, Helbling and Kalkum (2017) find a liberalization in entry even as, simultaneously, countries exert greater control to monitor migrants and prevent clandestine entry. It is worth noting that there tends to be little disagreement among liberal theorists that people should have the right to leave their country, or emigrate, even as they debate states’ responsibility to allow wholesale immigration. Restrictions on emigration were widespread among Communist countries during the Cold War, and thus an object of attack by those who advanced alternative liberal viewpoints. The distinction between normative and empirical scholarship might again be relevant. Some legal scholars, concerned about the fate of humanitarian migrants, draw sharp distinctions between refugee law and immigration law in order to lift up the moral arguments in favour of the former and thereby protect them. Social scientists are more likely to question (or ignore) refugee/nonrefugee distinctions when they model migration flows or study migration politics. One way to understand the seeming contradiction between liberalized asylum and increase in deterrence (Dauvergne 2016; Mountz 2010) is to realize that if deterrence policies limit the number of people who apply for asylum in wealthy states, these countries can then allow relatively high acceptance rates among the small number of people who actually manage to access asylum determination systems. It is not clear whether this is empirically the case, but if so, wealthy liberal democracies could then simultaneously embrace lofty ideals and restriction. There is substantial debate among law and society scholars as to the effectiveness of litigation for advancing the civil rights agenda. Some argue that cases such as Brown v Board of Education yielded important direct gains and produced consequential indirect effects for people within and outside the movement, such as providing hope, political openings, and media attention. Others not only dispute the impact of the Brown decision, but also contend that a litigation strategy channels

18  Research handbook on the law and politics of migration scarce movement resources toward elite lawyers and the inherently conservative legal system, de-fanging more impactful direct confrontation strategies (e.g. Rosenberg 1991). 11. Asylum policy can change and evolve over time, as asylum seekers are categorized and conceptualized more like refugees in some political moments, and more like illegal immigrants in others (Hamlin 2015). 12. In 2016, of the 177 countries studied, approximately 18 per cent offered automatic birthright citizenship to the children of immigrants born on the country’s territory. Almost all of those countries are located in the Americas, including South, Central and North America, as well as the Caribbean (Piccoli 2018).

WORKS CITED Abrego, L. (2008) ‘Legitimacy, social identity, and the mobilization of law: The effects of Assembly Bill 540 on undocumented students in California’, Law & Social Inquiry, 33(3): 709–34. Abrego, L. (2011) ‘Legal consciousness of undocumented Latinos: Fear and stigma as barriers to claims-making for first- and 1.5-generation immigrants’, Law & Society Review, 45(2): 337–70. Bloemraad, I. (2006) Becoming a Citizen: Incorporating Immigrants and Refugees in the United States and Canada, Berkeley: University of California Press. Bloemraad, I. (2018) ‘Theorizing citizenship as claims-making’, Journal of Ethnic and Migration Studies, 44(1): 4–26. Bloemraad, I. and Provine, D. (2019) ‘Managing diversity: Civil rights and immigration’, in P. Quirk (ed.) The United States and Canada: How Two Democracies Differ and Why It Matters, Oxford: Oxford University Press, pp. 266–89. Bloemraad, I. and Hamlin, R. (2020) ‘Immigration, asylum, integration, and citizenship policy’, in J. Misra, T. Janoski, C. de Leon, and S. Mudge (eds.) The New Handbook of Political Sociology, Cambridge: Cambridge University Press, pp. 880–908. Bloemraad, I., Voss, K. and Lee, T. (2011) ‘The immigration rallies of 2006: What were they, how do we understand them, where do we go?’ in K. Voss and I. Bloemraad (eds.) Rallying for Immigrant Rights, Berkeley: University of California Press, pp. 3–43. Bonjour, S. (2016) ‘Speaking of rights: The influence of law and courts on the making of family migration policies in Germany’, Law & Policy, 38(4): 328–48. Bosniak, L. (2008) The Citizen and the Alien: Dilemmas of Contemporary Membership, Princeton, NJ: Princeton University Press. Burns, P. and Gimpel, J.G. (2000) ‘Economic insecurity, prejudicial stereotypes, and public opinion on immigration policy’, Political Science Quarterly, 115(2): 201–225. Cappiali, T.M. (2016) ‘Activism of immigrants in vulnerable conditions and radical-left allies: A case study of Italy’s struggle of the crane’, Journal of Ethnic and Migration Studies, 42(15): 2508–27. Chimni, B.S. (1998) ‘The geopolitics of refugee studies: A view from the South’, Journal of Refugee Studies, 11(4): 350–74. Cornelius, W.A., Martin, P.L. and Hollifield, J.F. (1994) ‘Introduction: The ambivalent quest for immigration control’, in W.A. Cornelius, P.L. Martin, and J.F. Hollifield (eds.) Controlling Immigration: A Global Perspective, 1st edition, Stanford: Stanford University Press, pp. 3–41. Dauvergne, C. (2016) The New Politics of Immigration and the End of Settler Societies, New York: Cambridge University Press. de Haas, H., Natter, K., and Vezzoli, S. (2016) ‘Growing restrictiveness or changing selection? The nature and evolution of migration policies’, International Migration Review, 52(2): 324–67. FitzGerald, D.S. and Cook-Martín, D. (2014) Culling the Masses: The Democratic Origins of Racist Immigration Policy, Cambridge, MA: Harvard University Press. Freeman, G. (1995) ‘Modes of immigration policies in liberal democratic states’, International Migration Review, 29(4): 881–902. Gleeson, S. (2010) ‘Labor rights for all? The role of undocumented immigrant status for worker claims making’, Law & Social Inquiry, 35(3): 561–602.

The politics of migration law  19 Guiraudon, V. and Lahav, G. (2000) ‘A reappraisal of the state sovereignty debate: The case of migration control’, Comparative Political Studies, 33(2): 163–95. Hainmueller, J. and Hopkins, D.J. (2014) ‘Public attitudes toward immigration’, Annual Review of Political Science, 17: 225–49. Hamlin, R. (2012) ‘Illegal refugees: Competing policy ideas and the rise of the regime of deterrence in American asylum politics’, Refugee Survey Quarterly, 31(2): 33–53. Hamlin, R. (2014) Let Me Be a Refugee: Administrative Justice and the Politics of Asylum in the United States, Canada, and Australia, New York: Oxford University Press. Hamlin, R. (2015) ‘Ideology, international law, and the INS: The development of American asylum politics 1948–present’, Polity, 47(3): 320–336. Hampshire, J. (2013) The Politics of Immigration: Contradictions of the Liberal State, Cambridge: Polity. Helbling, M. and Kalkum, D. (2018) ‘Migration policy trends in OECD countries’, Journal of European Public Policy, 25(12): 1779–1797. Hollifield, J.F. (1992) Immigrants, Markets, and States: The Political Economy of Postwar Europe, Cambridge, MA: Harvard University Press. International Organization for Migration (2015) How the World Views Migration, online: . Joppke, C. (1998) ‘Why liberal states accept unwanted migration’, World Politics 50: 266–93. Kawar, L. (2015) Contesting Immigration Policy in Court: Legal Activism and Its Radiating Effects in the United States and France, New York: Cambridge University Press. Loescher, G. and Scanlan, J. (1986) Calculated Kindness: Refugees and America’s Half-Open Door, 1945 to the Present, New York: Free Press. Messina, A.M. (2007) The Logics and Politics of Post–WWII Migration to Western Europe, New York: Cambridge University Press. Mountz, A. (2010) Seeking Asylum: Human Smuggling and Bureaucracy at the Border, Minneapolis: University of Minnesota Press. Munson, Z.W. (2008) The Making of Pro-Life Activists: How Social Movement Mobilization Works, Chicago: University of Chicago Press. Nicholls, W.J. (2013) The DREAMers: How the Undocumented Youth Movement Transformed the Immigrant Rights Debate, Stanford: Stanford University Press. Oliveri, F. (2012) ‘Migrants as activist citizens in Italy: Understanding the new cycle of struggles’, Citizenship Studies, 16 (5–6): 793–806. Piccoli, L. (2018) ‘Global Birthright Indicators’, GLOBALCIT, online: . Ramji-Nogales, J., Schoenholtz, A.I., and Schrag, P.G. (2009) Refugee Roulette: Disparities in Asylum Adjudication and Proposals for Reform, New York: New York University Press. Rottman, A.J., Fariss, C.J., and Poe, S.C. (2009) ‘The path to asylum in the US and the determinants for who gets in and why’, International Migration Review, 43(1): 3–34. Salehyan, I. and Rosenblum, M.R. (2008) ‘International relations, domestic politics, and asylum admissions in the United States’, Political Research Quarterly, 61(1): 104–121. Sassen, S. (1996) Losing Control? Sovereignty in an Age of Globalization, New York: Columbia University Press. Scheve, K.F. and Slaughter, M.J. (2001) ‘Labor market competition and individual preferences over immigration policy’, The Review of Economics and Statistics, 83(1): 133–45. Sides, J. and Citrin, J. (2007) ‘European opinion about immigration: The role of identities, interests and information’, British Journal of Political Science, 37(3): 477–504. Soysal, Y. (1994) Limits of Citizenship: Migrants and Postnational Membership in Europe, Chicago: University of Chicago Press. Tichenor, D.J. (2002) Dividing Lines: The Politics of Immigration Control in America, Princeton: Princeton University Press. Toubøl, J. (2017) ‘Differential recruitment to and outcomes of solidarity activism: Ethics, values and group style in the Danish refugee solidarity movement’, PhD Thesis, University of Copenhagen. Voss, K. and Bloemraad, I. (eds.) (2011) Rallying for Immigrant Rights, Berkeley: University of California Press.

20  Research handbook on the law and politics of migration Wilkes, R., Guppy, N., and Farris, L. (2008) ‘‘No thanks, we’re full’: Individual characteristics, national context, and changing attitudes toward immigration’, International Migration Review, 42(2): 302–29. Zepeda-Millán, C. (2017) Latino Mass Mobilization: Immigration, Racialization, and Activism, New York: Cambridge University Press. Zolberg, A.R. (1999) ‘Matters of state: Theorizing immigration policy’, in C. Hirschman, P. Kasinitz, and J. DeWind (eds.) The Handbook of International Migration: The American Experience, New York: Russell Sage Foundation, pp. 71–93. Zolberg, A.R. (2006) A Nation by Design: Immigration Policy in the Fashioning of America, Cambridge, MA: Harvard University Press. Zucker, N.L. and Zucker, N.F. (1992) ‘From immigration to refugee redefinition: A history of refugee and asylum policy in the United States’, Journal of Policy History, 4(1): 54–70.

CASE LAW Brown v Board of Education [1954] 347 US 483. Plyler v Doe [1982] 457 US 202.

PRIMARY LEGAL SOURCES AB 540, An act to add Section 68130.5 to the Education Code, relating to public postsecondary education, 2001 (ch. 814) California.

3. Unsettling migration studies: Indigeneity and immigration in settler colonial states Antje Ellermann and Ben O’Heran1

INTRODUCTION Despite the prominence given to settler colonial states in migration studies (Freeman 1995, 2006; Hampshire 2013; Hollifield et al. 2014; Janoski 2010; Joppke 2005), the field routinely fails to consider the constitutive role played by settler colonialism in the development of settler states and their societies. Instead, migration scholars commonly assume a world in which people cross borders, rather than borders crossing peoples; where settler states legitimately exercise control over their territories, where settler citizenship is an emancipating institution, and where immigrants’ adoption of settler identity is celebrated. This chapter brings insights from the fields of Critical Indigenous Studies and settler colonial studies to bear on foundational concepts in migration studies as applied to settler colonial states. We argue that an engagement with on-going processes of settler colonialism challenges us to rethink our understanding of the concepts of borders, sovereignty, citizenship, and immigrant integration in settler colonial states. In keeping with the geographic context in which the study of settler states in migration studies emerged, we limit our analysis to states with British colonial foundations where immigration served the purpose of colonization and nation-building. While the chapter’s analysis mostly focuses on Canada, its arguments apply to the four Anglo-American settler states – Canada, the United States, Australia, and Aotearoa/New Zealand – more broadly.

MIGRATION STUDIES TREATING SETTLER COLONIALISM AS AN EVENT Migration scholars commonly classify Canada, the United States, Australia, and Aotearoa/ New Zealand as ‘countries of immigration’, ‘nations of immigrants’, and ‘settler societies’. The editors of one of the field’s leading textbooks, for instance, group together the United States, Canada, and Australia as ‘nations of immigrants’ that were ‘founded, populated, and built by immigrants in modern times; as a result, immigration is a fundamental part of the founding myth, historical consciousness, and national identity of these countries’ (Hollifield et al. 2014, [10]). Similarly, one of the earliest taxonomies of immigration regimes describes the ‘English-speaking settler societies’ as societies in which the politics of immigration was institutionalized ‘during eras when population movements were vital to national development or even survival … producing a receptive cultural context for further waves of migrants’ (Freeman 1995, [887]). While there is widespread recognition that this relative openness to immigration went hand-in-hand with the exclusion of racialized immigrants, migration scholars – with few exceptions2 – have remained largely silent on the constitutive role of settler 21

22  Research handbook on the law and politics of migration colonialism in the social, economic, and political development of these states. While migration scholars may acknowledge settler colonialism as an event in the distant past, few regard it as relevant to the study of contemporary immigration and citizenship. Instead, prevailing narratives of nationhood and identity in migration studies centre immigration, rather than settler colonialism, as the foundation of nationhood in Anglo-American settler states. Conceiving of settler colonial states as ‘countries of immigration’, however, deflects from the fact that these countries owe their existence to the occupation of, and continued assertion of sovereignty over, Indigenous lands. It reflects a rewriting of history that asserts that immigrants and their descendants ‘belong’ on these lands, and that these lands ‘belong’ to them. In her political theory of forgetting, Leti Volpp (2015) exposes the ways in which the study of United States immigration law ‘imagines away’ pre-existing Indigenous peoples [289]. In constructing a narrative of the United States as a nation of immigrants, she argues, immigration fulfils the function of ‘the settler’s alibi’ [316]. Thus, ‘[i]mmigration is responsible for Indigenous dispossession. But it also provides the alibi. Thus, immigration functions as both the reason for – and basis of – denial. The settler state is naturalized as the nation of immigrants’ (2015, [325]). The country-of-immigration narrative fulfils two distinct yet interconnected functions. First, as settlers are reimagined as immigrants, settler identity is whitewashed into a less politically consequential nation-of-immigrants identity. Second, as Jodi Byrd (Chickasaw) (2011) argues, by constructing Indigenous populations as immigrants, the immigration narrative erases Indigenous nationhood. This dual form of erasure was clearly at display during the early decades of the Cold War era, which marked the advent of the settler state’s celebratory immigration folklore. As Donna Gabaccia’s (2010) genealogy of the phrase ‘nation of immigrants’ shows, the construction of an ethnically inclusive American identity was carefully constructed and employed by immigration progressives to demand an end to longstanding racial exclusions. This new and all-embracing conception of the United States as a nation of immigrants not only allowed for the settlement of racialized immigrants, but also constructed Indigenous persons as immigrants themselves. Thus, in the same speech in which John F. Kennedy celebrated the United States as a ‘nation of immigrants’, he noted that ‘some anthropologists believe that the Indians themselves were immigrants from another continent’ (Kennedy 1964). Canadianization campaigns during the Cold War similarly constructed Indigenous peoples as ‘immigrants, too’ and subjected them to assimilation campaigns modelled after those directed at immigrants (Bohaker & Iacovetta 2009). This chapter calls on migration scholars to reverse these acts of forgetting that have produced a country-of-immigration narrative cleansed of settler colonialism. It calls on the field to integrate insights from Indigenous scholars who centre the settler colonial state in their research (such as Coulthard 2014; Green 1995; Kuokannen 2019). Taking seriously the past and present of settler colonialism, then, challenges us to rethink understandings of borders, sovereignty, citizenship, and immigrant integration in migration studies. Before we take on this challenge, we will first define the term settler colonialism.

SETTLER COLONIALISM AS A STRUCTURE, NOT AN EVENT From our contemporary vantage point, the ability to ‘imagine away’ Indigenous nations from the field of migration studies has been made possible through a series of interlocking processes

Unsettling migration studies  23 that seek to eliminate Indigenous nations (Wolfe 1999). This process of attempted elimination imagines away Indigenous nations as self-determining nations capable of affecting the political and economic landscapes of the settler states they find occupying their territories. Thus, when Indigenous nations assert their powers to destabilize the business-as-usual governance practices of the settler state, this is seen as the exception, rather than the rule (A. Simpson 2014). To account for this imagining away, migration scholars must analyse how migration practices have and continue to allow settlers to maintain control over Indigenous lands, bodies, and governance practices. Tracing this process of imagining away Indigenous nations requires us to recognize that settler colonialism is not an event with a concrete beginning and end. Settler colonialism is not the relic of a bygone era of colonialism. As Patrick Wolfe (2006) famously put it, ‘settler colonizers come to stay: invasion is a structure not an event’ [388]. What distinguishes settler colonialism from other forms of colonialism is the fact that the colonizers – or settlers – never left. Indigenous peoples in settler colonial states thus continue to feel the historic and continuing effects of settler colonialism on their bodily, territorial, and political integrity (Kuokannen 2019), prompting the question: ‘What? Postcolonialism? Have they left?’ (Tuhiwai Smith 1994, [24]). Instead of treating settler colonialism as a bygone historical event, migration scholars need to recognize settler colonialism as an ever changing, ‘shape shifting’ structure that continues to dispossess Indigenous nations in the present (Taiaiake & Corntassel 2005). Through this shape-shifting process, settler colonialism erects new colonial societies with their racial, gendered, and economic hierarchies on the dispossessed lands of Indigenous nations (Coulthard 2014). Understanding settler colonialism as a continuously adapting set of hierarchical social relations allows migration scholars to better conceptualize why many of the perceived benefits allotted to most members of settler societies – such as citizenship and economic opportunity – are not a progressive cornucopia. The benefits enjoyed by most settlers have been made possible through continually evolving policies that have sought to eliminate the ability of Indigenous nations to act as self-determining nations. Early policies of elimination relied on physical force to domesticate Indigenous nations – such as the use of military force to relocate Indigenous nations to small, isolated reserves in the United States and Canada. Over time, these policies evolved to rely on cultural violence through the creation of a state-sponsored, church-run residential school system that was firmly premised on assimilation and cultural genocide. This change in policy reflected changing cultural norms that saw Indigenous persons as capable of assimilating into settler society, as well as a political calculus that Indigenous nations would no longer threaten the sovereignty of the settler state in the way they once did. In the end, whatever its means, the goal of elimination remained unchanged: to remove Indigenous peoples from their territories and to open up land for capitalist exploitation (Coulthard 2014; L.B. Simpson 2017). While immigration in settler states cannot be separated from Indigenous dispossession, it is important to remember that not all migration to settler states has been consensual. Nor have all immigrants benefited equally from the spoils of settler colonialism. For example, Jodi Byrd’s (2011) analysis of the forced enslavement and relocation of Africans to the United States allows her to develop the category of ‘arrivant’ to ‘signify those people forced into the Americas through the violence of European and Anglo-American colonialism and imperialism around the globe’ [xix]. Similarly, Iyko Day’s (2016) study of Asian immigration to Canada and the United States complicates settler colonial analyses by documenting how the alignment

24  Research handbook on the law and politics of migration of Asian bodies and labour with capitalist forms of production became one of settler colonialism’s foundational and defining characteristics. In tracing the complicated genealogies of immigration to settler states, migration scholars need to be mindful of its complex histories of intersecting hierarchies, while at the same time recognizing the structures that enable all settlers to act as settlers. We will now use the lens of settler colonialism to ‘unsettle’ some of the foundational concepts of migration studies.

UNSETTLING BORDERS With the rise of the nation-state in early modern Europe and the subsequent creation of the international state system, sovereignty and governance became firmly territorial in nature (Jackson & Rosberg 1982; Spruyt 1994; Tilly 1990). Whereas for much of human history territories had been marked by ill-defined and porous borders and overlapping jurisdictions, contemporary states for the most part claim exclusive control over clearly delineated territories3 (Morris 1998). Borders thus became naturalized as firm, exclusive, and permanent markers of territory, especially in regions where states developed the infrastructural capacity for border enforcement. Historically, the process of turning porous boundaries into exclusive and unshifting borders was supported by states’ monopolization of the right to regulate movement within their territory. Intent on exercising control over movement, states began to codify national communities through identity documents, and regulated cross-border travel through the creation of passport and visa regimes (Torpey 2000). Yet, the naturalization of borders as taken-for-granted markers of belonging and nationhood – a process particularly powerful in the global North – hides the fact that the delineation of borders oftentimes has been arbitrary, crossing through pre-existing cultural and political communities. Even in Europe, the birthplace of the modern nation-state, its creation did not establish full congruence between territory and nation. The arbitrariness of borders is most pronounced in postcolonial and settler colonial contexts, where borders represent inventions of colonial rule that ran roughshod over pre-existing political communities. Understanding the nature of borders in contemporary settler colonial states requires us, in the words of Audra Simpson (Kahnawà:ke Mohawk) (2014), ‘[to] challenge what most perceive as settled. […] This is the presumption that the colonial project has been realized: land has been dispossessed; its owners have been eliminated or absorbed’ [11–12]. In contrast to prevalent understandings of borders as legitimate and settled, the treaties and agreements that created the ‘international’ borders that carved up Turtle Island (the North American continent) were unilaterally negotiated and signed by colonizers alone. Those Indigenous nations whose territories the borders transected were neither consulted nor gave their consent. The creation of these borders thus constituted outright violations of Indigenous sovereignties – sovereignties that were subsequently affirmed by treaties between Indigenous nations and colonizers (Luna-Firebaugh 2002). While in some cases Indigenous nations were able to negotiate separate agreements to protect cross-border access to their traditional lands, in many cases settler-imposed borders have had lasting social, cultural, and economic consequences for those Indigenous nations in their path. As Eileen Luna-Firebaugh (Choctaw/ Cherokee) elaborates in her aptly titled article ‘The Border Crossed Us’ (2002), the consequences of arbitrarily imposed borders include the denial of access to religious and cultural

Unsettling migration studies  25 sites, loss of hunting lands and sites of resource procurement, and the separation of families and communities. At one extreme, nations were permanently split, as was the case for the Blackfeet whose territory straddles the US–Canada border. Renamed by colonizers as the Blood (Canada) and the Blackfeet (United States), the nation today identifies as two separate peoples (Luna-Firebaugh 2002). With historically loosely policed borders having become a site of heightened state surveillance and militarization, resistance by Indigenous peoples continues to build. In Mohawk Interruptus (2014), Audra Simpson examines the varied practices of ‘refusal’ by the Kahnawà:ke Mohawks who are part of the Haudenosaunee or Iroquois Confederacy. The use of the Haudenosaunee passport by many members of the Confederacy is a stark reminder that Indigenous sovereignty continues to challenge the settler state’s borders and legitimacy. By refusing the ‘gifts’ of Canadian and American citizenship, Haudenosaunee passport holders affirm that Indigenous sovereignties persist apart from settler governance. On July 17, 2010, the Iroquois National Lacrosse Team pulled out of the World Lacrosse League Championship in Manchester because the United Kingdom refused to recognize their Haudenosaunee passports, issued by the chiefs of the Iroquois Confederacy, which predates the United Kingdom and United States by hundreds of years (A. Simpson 2014). Indigenous refusal thus challenges prevalent understandings of ‘borders as static, while people are in motion’ (Volpp 2015, [296]). In settler colonial states, ‘borders cross people’ as settler sovereignty continues to be superimposed on pre-existing nations and sovereignties.

UNSETTLING SOVEREIGNTY Unsettling conversations about sovereignty in migration studies can fruitfully begin by challenging the notion that claims to sovereignty within settler colonial states have been settled. Emulating nation-states in early modern Europe, settler colonial states conceive of sovereignty as territorial, hierarchical, and exclusive. As sovereign nation-states, they claim – or seek to claim – exclusive control over the land, populations, and natural resources within their borders. In doing so, they refute any competing claims to sovereignty by ethnic, linguistic, or national minorities within their territory (Corntassel & Woons 2018). In claiming exclusive sovereignty over the lands and bodies of Indigenous nations within their borders, settler states continue to violate pre-existing sovereignties. The imagining away of Indigenous peoples from the political landscapes of settler societies thus goes hand-in-hand with colonial governance practices that imagine away Indigenous sovereignty and legal traditions that predate the creation of their Western counterparts (Borrows 2002). By enacting this epistemic violence, settler states obscure the fact that the recognition of Indigenous nations as sovereign nations serves as a foundational legal concept for many settler states (Williams 1999). Aotearoa/New Zealand, Canada, and the United States all view treaties – or the lack of – with Indigenous nations as an important foundation for their own legal and constitutional orders (Borrows 2016). In Canada, the long history of treaty-making between Indigenous nations and the Crown represented in the numerous treaties of ‘Peace and Friendship’ and ‘Numbered Treaties’ are based on the recognition that Indigenous peoples possessed rights and title to their lands and that the Crown had to enter into treaties with them in order to allow for the lawful settlement of those territories. Canada’s present legal order presumes that these treaties have been implemented, while simultaneously obscuring, distorting,

26  Research handbook on the law and politics of migration and minimizing the rights of Indigenous peoples in practice (Starblanket 2019). In doing so, the Canadian state has failed to engage with the treaties and Indigenous legal orders that serve as the very locus of Indigenous peoples’ distinct political relationship with the Canadian state. The notion that sovereignty is territorial, hierarchical, and exclusive contrasts with the multitude of Indigenous legal and international relations practices that do not conceptualize sovereignty and self-determination in such terms. Instead, many Indigenous legal orders – or the laws embedded in Indigenous social, political, economic, and spiritual institutions (Napolean 2007) – have sought to accommodate multiple and often competing legal orders through various treaty-making practices. These practices include recognizing the sovereignty of other Indigenous nations and non-Indigenous governments (King 2017; L.B. Simpson 2008), as well as other-than-human communities including plants, animals, and fish (L.B. Simpson 2008, 2017). Examining the erasure of Indigenous thought in foreign policy, Anishinaabe scholar Hayden King (2017) documents how Indigenous international agreements such as the Dish with One Spoon sought to accommodate multiple legal orders by recognizing the autonomy of multiple treaty partners. The Dish with One Spoon agreement is represented by a wampum belt of white beads that has a purple lozenge in the centre, symbolizing a bowl or dish. Practising the treaty requires treaty partners to recognize multiple human and non-human nations living in the dish and having mutual obligations to each other to ensure that the dish never runs empty. In doing so, treaty partners do not surrender their authority or jurisdiction, but instead recognize their responsibilities to each other and to the lands that sustain the treaty relationship. ‘In other words, the Dish With One Spoon encouraged distinct political and communities to share the same territory in peace. A terrain mapped not by exclusive sovereignty but mutual obligations’ (King 2017). Even after centuries of attempted elimination, Indigenous nations continue to unsettle the sovereignty of settler states in a multitude of ways. For example, the past 40 years have seen a number of court cases – including the landmark Delgamuukw and Tsilqot’in decisions in Canada and Milirrpum v Nabalco Pty Ltd in Australia – that have forced settler states to recognize the Aboriginal Rights and Title of Indigenous nations.4 At the same time, many Indigenous nations, such as the Secwepemc Nation in south central British Columbia, have embarked on reconnecting their communities and ‘restoring their campfires’ after decades of isolation under the Indian Act (Shuswap Nation Tribal Council 2012). Some nations have even begun to (re)create powerful confederacies. Since 2014, signatories of the Buffalo Treaty, including members of the Blackfoot, Blood, and Cree nations, have sought to renew their political relationships with each other and the Buffalo nation whom they consider to be kin by reintroducing buffalo back onto their lands (Lightfoot & MacDonald 2017). Finally, the decades-long process of drafting the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) has forced many settler states to adapt to a quickly changing political landscape where Indigenous peoples are able to exert pressure at the international level in ways that had not previously been possible (Lightfoot 2016; Manuel & Derrickson 2015).

UNSETTLING CITIZENSHIP Citizenship is commonly understood as a normative good that provides its holders with legal entitlements and membership in a national community, in exchange for performing certain

Unsettling migration studies  27 duties toward the state (Marshall 1950). Critical migration and citizenship scholars have long examined the myriad of ways in which both the regulation and the practice of citizenship fall far from this ideal of inclusion and equality. In particular, scholarship has taken aim at how inequalities in access to citizenship and its benefits have been stratified by social group membership. Whether explicitly or implicitly, social hierarchies based on attributes such as race, gender, and class continue to serve as axes of inclusion and exclusion in the politics of citizenship (Ellermann 2019). While critical scholarship has firmly debunked the myth of equal citizenship, the notion of citizenship as an unequivocally desirable and inclusionary ideal has received little interrogation in migration studies. Comparative research on citizenship regimes, which classifies countries along a restrictionist–liberal axis, commonly celebrates settler colonial states for their inclusive citizenship policies that provide for citizenship acquisition by birth, short residency requirements for naturalization, and the toleration of dual nationality (Howard 2006). However, the conception of citizenship as an institution (or at least as the ideal) of social inclusion comes under challenge when we follow critical decolonization and Indigenous resurgence scholars (Coulthard 2014; L.B. Simpson 2011; Taiaiake 2009) in understanding the liberal democratic nation-states of settler societies as colonial states. In unmasking the settler state as a colonial structure, we challenge the legitimacy of the state’s territorial sovereignty and its institution of national citizenship. For most of their history, settler colonial states treated citizenship as a privilege to be selectively and conditionally extended to Indigenous persons. It was not until the 1960s that the political rights of citizenship were fully and unconditionally extended to Indigenous persons in the United States, Australia, and Canada. In Canada, the Gradual Civilization Act of 1857 sought to assimilate ‘educated Indian[s]’ of ‘good moral character’ through naturalization. As the Act’s preamble declares, ‘it is desirable to encourage the progress of Civilization among the Indian Tribes ... and the gradual removal of all legal distinctions between them and Her Majesty’s other Canadian Subjects’ (An Act to encourage the gradual Civilization of the Indian Tribes in this Province, and to amend the Laws respecting Indians 1857, preamble). In exchange for colonial citizenship, voting rights, and access to ownership of land allotments carved from their home reserve, Indigenous persons would be stripped of their legal Indian status and, hence, their right to band membership and life on reserve. When Indigenous peoples refused to surrender their treaty rights and overwhelmingly rejected the offer of British citizenship, the colonial state responded with amendments to the Indian Act that provided for the compulsory enfranchisement of university-educated status Indian men, clergy, and veterans, as well as status Indian women (and their children) who married non-status men. Compulsory enfranchisement was only gradually abolished, and it was not until 1960 that Indigenous persons were able to vote in Canadian federal elections without being stripped of their Indian status. While exclusions from, and conditionalities attached to, settler state citizenship gradually disappeared from the colonial legal order, the ‘inclusivity’ of settler citizenship continues to operate within the structures of settler colonialism which leave state sovereignty unchallenged. As political theorist Glen Coulthard (Yellowknives Dene) (2014) states, ‘the relationship between Indigenous peoples and the [settler colonial] state has remained colonial to its foundation’ ([6], emphasis in original). Thus, the ‘inclusive’ citizenship of settler colonial states continues to be imposed over and against Indigenous sovereignties and pre-existing rights to self-determination. Because settler states refuse to recognize the sovereignty of Indigenous nations, settler citizenship disregards the political significance of pre-existing Indigenous citi-

28  Research handbook on the law and politics of migration zenships. In her aptly titled essay ‘The Impossibility of Citizenship Liberation for Indigenous People’, Joyce Green (2017), who is of English, Ktunaxa, and Cree-Scottish Metis descent, presents a powerful critique of settler state citizenship: [C]itizenship is not an unalloyed benefit to Indigenous people. To begin with, there’s that little land theft matter: Indigenous citizenship in the state is a relationship with the state, which is occupier and oppressor. The loss of land and sovereignty is a profound injury to Indigenous nations, for land is not simply a domain and a source of wealth (although it is also that), but a set of historical and contemporary relationships which produce identity, which create and practice culture, which encode knowledge and frame epistemologies, which construct and convey political, economic, and cultural leadership, and which frame the relationships with the Creator and what, for the sake of simplicity, we’ll call Mother Earth and all my relations … The ancient relationship with specific territories produces citizenship for Indigenous peoples – but in relation to the land, not to the colonial state. That same state has ceaselessly worked to divorce Indigenous peoples from their lands, thus violating that ‘landed’ citizenship. ([179–80], emphasis in original)

Green continues by reflecting on what a decolonized citizenship – a citizenship that refuses Indigenous incorporation into the colonial state – might look like. For citizenship to be liberating, she argues, Indigenous sovereignty has to be recognized as prior to settler state sovereignty, and settler state citizenship has to be ‘nested within a priori Indigenous citizenship’ [181]. Only then is it possible, she argues, ‘to conceive of a citizenship regime that is legitimized by Indigenous nations’ [181]. By nesting settler citizenship in Indigenous citizenship, then, we can reconceive citizenship as an instrument of social inclusion and liberation. To make the notion of nested citizenship more concrete, we could consider the regulation of citizenship within the European Union (EU), where EU citizenship is nested within prior member state citizenship. While EU citizenship provides rights beyond the rights of national citizenship, it does not exist independently of national membership and is only available to those who hold citizenship in a member state. Thus, we might conceive of settler citizenship as a form of membership that is first and foremost extended by Indigenous nations and only subsequently affirmed, or topped up, by the settler state.

UNSETTLING IMMIGRANT INTEGRATION Scholars of immigrant integration examine the ways in which immigrants adapt to their host society (see Issakyan 2015). Normative and empiricist theories differ in important ways in their treatment of difference between immigrants and the native-born. Whereas classical theorists of assimilationism conceive of assimilation as ‘the social processes that bring ethnic minorities into the mainstream of American life’ (Alba & Nee 1997, [828]), more recent variants such as segmented assimilation theory reject the conception of host society as a unified mainstream into which all immigrants assimilate and instead explain ‘why some ethnic groups are more likely than others to move into the mainstream society while others to become trapped on the host society’s margin’ (Zhou 2012, [384]). Theorists of multiculturalism, by contrast, reject the desirability of cultural convergence altogether and emphasize the importance of cultural integrity and the preservation of collective identities (Taylor 1992). While integration scholars have long recognized that structures of social stratification and marginalization in host societies pose formidable obstacles to immigrant integration, few have opened up the ‘great (white) box’ (Favell 2014, [118]) of host society itself. As many migration

Unsettling migration studies  29 scholars continue to reproduce an image of society into which immigrants are in need of integrating (Schinkel 2013), society continues to serve as the unexamined reference point against which the success or failure of newcomers’ integration is measured. Thus, society’s median income functions as the reference point for newcomers’ economic immigration, fluency in the host society’s official language(s) serves as the marker of cultural integration, and convergence of immigrant attitudes with those of the native-born public counts as evidence of political integration. What if, however, we shift our focus from newcomer to society and consider the possibility that it is society, not only the immigrant, that is in need of change? As long as we fail to interrogate society itself, national identity in settler societies will remain blind to its historic and present colonialism. Without this interrogation, however, newcomer integration will inadvertently reproduce settler colonialism, as newcomers augment the ranks of settlers. What, then, might a decolonized narrative of belonging in settler societies look like? Some scholars of Critical Indigenous Studies suggest the impossibility of decolonized settler belonging. In ‘Decolonization is Not a Metaphor’, Eve Tuck (Unangax) and Wayne Yang (2012) emphasize that ‘decolonization brings about the repatriation of Indigenous land and life’ [1], with the logical conclusion that ‘all settlers become landless’ [27]. Likewise, legal scholar Johnny Mack (Nuu-chah-nulth) (2010) writes in response to the question how would taking [Indigenous] stories seriously transform what goes on in treaty negotiations? … The settler population would relinquish its claim to any lands and authority not granted to it, apologize for its actions, and be willing to leave the territory if asked to do so … If they wanted to stay and showed an earnest desire to conduct themselves respectfully in observance of Indigenous customs and law, perhaps a probationary period would be appropriate. [288]

For the purpose of unsettling immigrant integration – which is predicated on possibilities of belonging – we draw on less radical, though nonetheless challenging, perspectives developed by, among others, Cree writer and legal scholar Harold Johnson. Writing in a small territory in central Saskatchewan (the 1889 adhesion to Treaty No. 6 in Canada), Johnson (2007) describes the relationship between Indigenous peoples and settlers as one of ‘two families’. Building on the relational logic of Cree law, Johnson (2007) writes: Kiciwamanawak, my cousin: that is what my Elders said to call you. When your family came here and asked to live with us on this territory, we agreed. We adopted you in a ceremony that your family and mine call treaty […] At Treaty No. 6 the Cree adopted the Queen and her children. We became relatives. [90]

This relational argument, then, opens up the possibility of belonging to Canadian settler populations in Treaty territory: I will never suggest that you go back where you came from, for I assure you Kiciwamanawak that you have a treaty right to be here […] Your Constitution is subservient to and dependent of the treaties for its legitimacy. There is no other legitimate basis for your occupation and use of this territory. It is only by treaty that you have any rights here […] (Johnson 2007, [14, 105])

While the treaty right to be here contrasts with Indigenous positions of refusal (A. Simpson 2014) and resurgence (L.B. Simpson 2011) in offering a basis for settler belonging, it is nonetheless highly conditional in nature. For settlers and newcomers to have a right to be here, settler states and settlers have to honour treaties in their full intent and spirit, in line

30  Research handbook on the law and politics of migration with Indigenous understandings and interpretations, and based on the recognition that prior Indigenous sovereignties were never extinguished by the treaties. To the extent that treaties can serve as a basis for decolonization, they have to be understood as giving settlers permission to share Indigenous lands, not to claim sovereignty over Indigenous territories (Asch 2014). Decolonized belonging in settler colonial states thus is only possible where settler states and settlers respect Indigenous sovereignty, laws, and legal traditions, where treaties are upheld as agreements between sovereign nations, where new treaty agreements ‘grow out of [Indigenous] stories’ (Mack 2010, [292]), and where relations with the land are based on shared stewardship and reciprocity. Let us, then, return to the question of immigrant integration in settler colonial states. Unsettling the assumption that it is newcomers, rather than receiving society, who are in need of change allows us to engage with the imperative of decolonization. As long as settler colonialism persists, newcomers – whether racialized or white, forced or voluntary – by virtue of their settlement on contested lands and their tax payments to the state (including its police forces, prisons, and child welfare system, all of which disproportionately target Indigenous persons) are implicated in the settler colonial project which remains premised on the denial of Indigenous sovereignty and self-determination. Recognizing the shared complicity of long-established settlers and newcomers alike in perpetuating settler colonialism places a joint responsibility on all non-Indigenous members of society to confront these structures and commit to decolonization. It is by the standard of decolonized belonging, rather than assimilation into settler society, then, that we should measure the success or failure of immigrant integration.

DECOLONIZATION AND THE FUTURE OF IMMIGRATION IN SETTLER COLONIAL STATES Given the longstanding implication of immigrants in the settler colonial project, can immigration and citizenship policy shed their colonial ties? The Truth and Reconciliation Commission of Canada, which was established to document the history and impacts of the Indian residential school system on Indigenous communities, in 2012 issued its calls to action, which included two calls pertaining to ‘Newcomers to Canada’: 93. We call upon the federal government, in collaboration with the national Aboriginal organizations, to revise the information kit for newcomers to Canada and its citizenship test to reflect a more inclusive history of the diverse Aboriginal peoples of Canada, including information about the Treaties and the history of residential schools. 94. We call upon the Government of Canada to replace the Oath of Citizenship with the following: I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada including Treaties with Indigenous Peoples, and fulfil my duties as a Canadian citizen. ([10–11], emphasis added)

While the Canadian government is currently in the process of overhauling the citizenship guide and revising the oath, these reforms will have limited impact without a concurrent commitment to decolonization. In November 2019, British Columbia was the first province to pass

Unsettling migration studies  31 the B.C. Declaration on the Rights of Indigenous Peoples Act in order to align the province’s laws with UNDRIP. Passed in 2007, UNDRIP has far-reaching implications for Indigenous– settler relations and while, as a body of Western international law, it ‘remains fixated on the state as the sole, legitimate international actor’ (Kuokannen 2019, [28]), it nevertheless can provide some guidance for what a politics of decolonization might look like. Affirming the inherent Indigenous right to self-determination, the Declaration requires settler colonial states to respect the right of Indigenous communities to give, withhold, and retract consent on any project that will affect them or their territories (Free, Prior and Informed Consent). Most radically, the Declaration opens the door to land return: Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired … States shall give legal recognition and protection to these lands, territories and resources. (UNDRIP, art. 26) Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent. (UNDRIP, art. 28)

The Declaration’s implications for immigration and citizenship policy have not yet been explored. There is no question, however, that the principle of free, prior, and informed consent cannot co-exist with the settler state’s exclusive jurisdiction over immigration. Deciding on who and how many newcomers to admit must become a shared jurisdiction in Treaty territory, and possibly the sole jurisdiction of Indigenous nations in unceded territory. Moving beyond legal reform, decolonization requires the challenge of colonial narratives (Mack 2010) as uncontested parameters of the possible. In this chapter, we have questioned narratives of borders, sovereignty, citizenship, and immigrant integration that are prevalent in migration studies but rarely engage with settler colonialism itself. By drawing on the work of scholars in Critical Indigenous Studies and settler colonial studies, we have centred settler colonialism and Indigeneity in the study of migration and citizenship in settler colonial states. In doing so, we have challenged conceptions of borders as demarcations of nations, of settler state sovereignty as legitimate, of settler citizenship as liberating, and of immigrants’ adoption of settler identity as an unalloyed good.

NOTES 1. We thank Efrat Arbel, Geraldine Pratt, and Rima Wilkes, as well as an anonymous reviewer, for their insights and engagement with this work. This chapter would not have been written without the discussions of the Migration & Indigeneity Group of the UBC Centre for Migration Studies. We gratefully acknowledge financial support from UBC’s Excellence Funds. 2. See Abu-Laban (2019), Dauvergne (2016), Johnston & Pratt (2017), Mann (2017), in addition to works discussed in more detail in this chapter. 3. With some exceptions, most notably the European Union. 4. Delgamuukw v British Columbia [1997] 3 SCR 1010; Tsilqot’in Nation v British Columbia [2014] 2 SCR 257, 2014 SCC 44; Milirrpum v Nabalco Pty Ltd [1971] 17 FLR 141.

32  Research handbook on the law and politics of migration

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Unsettling migration studies  33 Joppke, C. (2005) Selection by Origin: Ethnic Migration in the Liberal State, Cambridge, MA: Harvard University Press. Kennedy, J.F. (1964) A Nation of Immigrants, New York City: Harper Collins. King, H. (2017) ‘The erasure of Indigenous thought in foreign policy’, Open Canada, online: . Kuokannen, R. (2019) Restructuring Relations: Indigenous Self-Determination, Governance, and Gender, Oxford: Oxford University Press. Lightfoot, S.R. (2016) Global Indigenous Politics: A Subtle Revolution, London: Routledge. Lightfoot, S.R. and MacDonald, D. (2017) ‘Treaty relations between Indigenous peoples: Advancing global understandings of self-determination’, New Diversities, 19(2): 25–41. Luna-Firebaugh, E.M. (2002) ‘The border crossed us: Border crossing issues of the Indigenous peoples of the Americas’, Wicazo Sa Review, 17(1): 159–81. Mack, J. (2010) ‘Hoquotist: Reorienting through storied practice’ in H. Lessard, R. Johnson, and J. Webber (eds.) Storied Communities: Narratives of Contact and Arrival in the Constitution of Political Community, Vancouver: UBC Press, pp. 286–307. Mann, J. (ed.) (2017) Citizenship in Transnational Perspective: Australia, Canada, and New Zealand, London: Palgrave Macmillan. Manuel, A., and Derrickson, R.M. (2015) Unsettling Canada: A National Wake-Up Call, Toronto: Between the Lines. Marshall, T.H. (1950) Citizenship and Social Class: And Other Essays, Cambridge: Cambridge University Press. Morris, C.W. (1998) An Essay on the Modern State, Cambridge and New York: Cambridge University Press. Napolean, V. (2007) Thinking about Indigenous Legal Orders, Ottawa: National Centre for First Nations Governance. Schinkel, W. (2013) ‘The imagination of “society” in measurements of immigrant integration’, Ethnic and Racial Studies, 36(7): 1142–61. Simpson, A. (2014) Mohawk Interruptions: Political Life across the Borders of Settler States, Raleigh: Duke University Press. Simpson, L.B. (2008) ‘Looking after Gdoo-naaganinaa: Precolonial Nishnaabeg diplomatic and treaty relationships’, Wicazo Sa Review, 23(2): 29–42. Simpson, L.B. (2011) Dancing on Our Turtle’s Back: Stories of Nishnaabeg Re-Creation, Resurgence, and a New Emergence, Winnipeg: Arbeiter Ring Publishing. Simpson, L.B. (2017) As We Have Always Done: Indigenous Freedom through Radical Resistance, Minneapolis: University of Minneapolis. Spruyt, H. (1994) The Sovereign State and Its Competitors, Princeton: Princeton University Press. Starblanket, G. (2019) ‘The numbered treaties and the politics of incoherency’, Canadian Journal of Political Science, 52(3): 443–59. Sushwap Nation Tribal Council (2012) Secwepemc Unity Declaration, online: . Taiaiake, A. (2009) Wasase: Indigenous Pathways of Action and Freedom, Toronto: University of Toronto Press. Taiaiake, A. and Corntassel, J. (2005) ‘Being Indigenous: Resurgences against contemporary colonialism’, Government and Opposition, 40(4): 597–614. Taylor, C. (1992) ‘The politics of recognition’, in A. Gutmann (ed.) Multiculturalism: Examining the Politics of Recognition, Princeton: Princeton University Press, pp. 25–74. Tilly, C. (1990) Coercion, Capital and European States, AD 990–1990, Cambridge, MA: Basil Blackwell. Torpey, J. (2000) The Invention of the Passport: Surveillance, Citizenship and the State, Cambridge, UK: Cambridge University Press. Truth and Reconciliation Commission of Canada (2012) Truth and Reconciliation Commission of Canada: Calls to Action, Winnipeg: Truth and Reconciliation Commission of Canada. Tuck, E. and Yang, K.W. (2012) ‘Decolonization is not a metaphor’, Decolonization: Indigenity, Education & Society, 1(1): 1–40.

34  Research handbook on the law and politics of migration Tuhiwai Smith, L. (1994) Decolonizing Methodologies: Research and Indigenous Peoples, London: Zed Books. Volpp, L. (2015) ‘The Indigenous as alien’, U.C. Irvine Law Review, 5(2): 289–326. Williams, R.A. (1999) Linking Arms Together: American Indian Treaty Visions of Law and Peace, 1600–1800, New York: Routledge. Wolfe, P. (1999) Settler Colonialism and the Transformation of Anthropology, New York: Cassell. Zhou, M. (2012) ‘Segmented assimilation and the American experience of Asian immigrant children’, in M.R. Rosenblum and D.J. Tichenor (eds.) Oxford Handbook of the Politics of International Migration, Oxford: Oxford University Press, pp. 383–409.

PRIMARY LEGAL SOURCES An Act to encourage the gradual Civilization of the Indian Tribes in this Province, and to amend the Laws respecting Indians, S.C. 1857, (c. 26). Indian Act, R.S.C 1985 (c. I-5). United Nations Declaration on the Rights of Indigenous Peoples, 2 October 2007, UN Doc A/ RES/61/295.

4. Migration politics at the meso-level Erin Aeran Chung

INTRODUCTION Although the majority of English-language scholarship on immigration focuses on flows from the global South to the global North, or from East to West, intra-regional and South–South migration are the dominant forms of international migration in the contemporary world. According to the United Nations Migration Report, more than 40 per cent of the 244 million international migrants in 2015 lived in developing countries and, among them, almost 90 per cent originated from other developing countries. The number of internal migrants in developing countries, moreover, is roughly three times that of international migrants, at an estimated 740 million in 2015. The number of China’s internal migrants alone is almost double the total number of international migrants worldwide. A truly global theorization of migration politics requires, at the minimum, that we develop methodological tools and theoretical frameworks that better reflect these empirical realities by grappling with understudied cases outside of North America and Europe and critically re-evaluating our assumptions about migration politics. This imperative has been widely acknowledged by scholars in the field. The question at hand is how. The Asian region, with its mix of industrial democracies and authoritarian regimes as well as the world’s largest economies and highest rates of poverty, provides an especially interesting set of cases for studying migration politics as it includes recent countries of immigration, major sending countries of origin, and countries that are simultaneously migrant countries of origin, destination, and transit. Studies of migration politics in Asia have, moreover, underscored the problems of focusing exclusively on migration policy. While extant theories of migration policy have helped us to understand migration politics in a wide array of countries, they tend to take as a given that the countries in question have relatively open migration policies to begin with. They thus do not sufficiently explain patterns among countries that have resisted large-scale importation of foreign labour. They also tend to assume that migration policies reflect deliberate decision-making by policymakers who engage in grand ‘balancing’ acts when migration policy-making in fact tends to be haphazard, inconsistent, and contradictory. And migration policies may be less consequential in cases where the rule of law holds little weight and where informality prevails. Instead, studies of migration politics in Asia point to the significant roles played by meso-level institutions and actors. This chapter uses ‘meso-level’ to refer to intermediate institutions, both formal and informal, between the macro-level and the individual (Chung, Draudt, & Tian 2020; Faist 2010; Fine 2012; Turner 2012). A growing body of scholarship in political science and political sociology has increasingly examined meso-level institutions and organizations in studies of migration and citizenship to understand the process by which individual migrants interpret and respond to state policies and directives (Andersen & Cohen 2005; Bloemraad 2006; de Graauw 2016; Hochschild & Mollenkopf 2009; Marrow 2005; Wong 2006). These works demonstrate how local organizations such as advocacy groups and faith-based institutions 35

36  Research handbook on the law and politics of migration give voice to migrant interests, shape public debate and policies on immigration and immigrants, and work with state and non-state actors to ‘make immigrant rights real’, as de Graauw (2016) puts it. Others have examined how meso-level institutions constrain access to rights and services, especially for populations marginalized by racialized and gendered hierarchies, and create multiple forms of political membership associated with partial citizenship rights, or ‘semi-citizenship’ (Cohen 2009; Glenn 2002). And studies focusing on South Asia and the Gulf States have highlighted how citizenship and migration policies interact at the meso-level during the process of nation-building or re-building, through the denationalization of specific populations, and in iterated quotidian practices (Abbas 2016; Lori 2019; Sadiq 2009). This chapter takes stock of the growing scholarship on migration politics in Northeast Asia (hereafter ‘East Asia’) – referring to Japan, South Korea (hereafter ‘Korea’), Taiwan, and China – 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 actors and institutions mediate migration and citizenship policies and practices, this chapter seeks to shed light on the gaps between policy intent, interpretation, and outcomes. While I consider the comparative implications of this research agenda for other cases in the Asian region, I limit this chapter to East Asian countries in order to focus on two areas of study: civil society and the household registration system. The first main section analyses how civil society mediates immigrant incorporation in order to offer insights into the meso-level actors who play central roles in enforcing, challenging, and/or undermining migrant policies on the ground. While acknowledging that the concept is highly contested, this chapter applies Pharr’s (2003) definition of civil society as ‘sustained, organized social activity’ that is voluntary in nature, organized in groups, and autonomous from the state and the market [xii; 318]. Analysing immigrant incorporation through the lens of civil society is especially effective because the latter is a relational concept that offers a window into how local actors understand, negotiate, and contest immigration and citizenship policies; the place of immigrants in society; and the meaning of membership. Research that prioritizes the role of civil society in studies of East Asian immigration politics helps us to better understand the intra-national contradictions between exclusionary national policies and relatively inclusionary incorporation patterns at the local level, on the one hand, and cross-national variations between similarly situated countries with overlapping immigration and citizenship policies, on the other. The second main section examines the scholarship on the household registration system that demonstrates how meso-level institutions regulate internal and external borders, highlighting the relationship between citizenship and migration as well as subnational and national membership. Comparative studies of citizenship regimes have increasingly disaggregated the geographical and conceptual boundaries of the institution of citizenship and highlighted the interaction of its multiple levels of jurisdiction (Chung, Draudt, & Tian 2020; Vink 2017; Vink & Baubock 2013). Although East Asian citizenship regimes are commonly classified as ‘ethnic’ models that are based on ethnocultural descent, citizenship policies in East Asia are in fact built around the household registration system, which is a distinctly modern institution that codifies collectivities based on kinship. The research in this area highlights how the household registration system is tied to both membership and movement by serving an important mediating function in determining descent in citizenship attribution policies, on the one hand, and providing states with a flexible tool to regulate internal and external movement, on

Migration politics at the meso-level  37 the other. I conclude the chapter with a brief discussion of comparative implications and areas for further research on migration politics at the meso-level.

HOW CIVIL SOCIETY MEDIATES IMMIGRANT INCORPORATION Based largely on European and North American case studies, the dominant scholarship on immigration and citizenship suggests that immigration policies shape immigrant incorporation patterns. That is, we should expect that restrictive immigration and citizenship policies will result in exclusionary immigrant incorporation outcomes, such as limited migrant rights, limited avenues for migrant permanent settlement, low naturalization rates, and no political voice for migrants. On the other end of the spectrum, liberal immigration and citizenship policies should, in principle, result in relatively inclusionary immigrant incorporation outcomes, such as generous migrant rights, high rates of permanent settlement that includes family formation, high naturalization rates, and meaningful political representation of immigrants. Although East Asian democracies share with their North American and European counterparts overlapping challenges of immigration in an era of globalization, they appear to be going against what, until recently, was widely deemed a convergence toward increasingly liberal immigration and citizenship policies. Despite labour shortages dating from the late 1960s in Japan and the 1980s in Taiwan and Korea, the three countries have maintained relatively restrictive immigration policies that had closed or partially closed their borders to unskilled migrant labour until recently (1989 in Taiwan, 2004 in Korea, and 2019 in Japan), and that continue to prohibit or discourage permanent settlement for such labourers. All three countries have, furthermore, preserved citizenship policies that are based almost entirely on descent, regardless of nativity or generational status. Contrary to what we might expect to find among countries commonly classified as representing ‘ethnic’ or ‘exclusionary’ models of immigrant incorporation, however, institutionalized rights for specific categories of migrants are comparable to and in some cases surpass those in democracies with more liberal policies. Japan makes almost no distinction between Japanese citizens and long-term foreign residents in the area of social welfare benefits, which includes health insurance, unemployment assistance, and childcare allowances. Foreign residents in Japan are also eligible to vote in local referenda and can participate in local foreign resident assemblies. Korea’s guestworker programme, the employment permit system, guarantees migrant workers the same protections and rights as native Korean workers. Korea additionally stands out as the only Asian country to grant foreign residents local voting rights (since 2006) and the only Northeast Asian country to recognize dual citizenship (since 2010). Japan, Korea, and Taiwan have, moreover, enacted a series of policies and programmes centred on variants of ‘multiculturalism’. While comparative studies of immigration and citizenship politics have focused on domestic elites and international norms as the drivers of policy change, the dominant approaches do not sufficiently explain patterns among countries that have maintained relatively closed immigration policies. Most reforms to Korea, Japan, and Taiwan’s immigration policies reflect each government’s aim to better control immigration, particularly unauthorized immigration, rather than to incorporate immigrants. International norms have likewise had an uneven impact on the extension of migrant rights and have not pushed policymakers to liberalize immigration policies themselves.

38  Research handbook on the law and politics of migration One of the distinguishing characteristics of migration regimes among East Asian democracies is the sequence of their immigration and immigrant policies and programmes: immigrant incorporation preceded immigration policy reform. That is, immigrant incorporation programmes were implemented at the meso-level even before policymakers and bureaucrats acknowledged the presence of immigrants within their borders. Because countries in East Asia maintained highly restrictive immigration policies throughout the 1980s and 1990s, international migrants were populations to be returned or expelled, not incorporated. Policies pertaining to immigration and citizenship were concerned primarily with delimiting the body politic, not incorporating migrants. The question of migrant rights became an important part of the equation only when civil society actors forced it onto the agenda. Comparative studies of immigration politics in East Asia offer an important intervention in the scholarship by highlighting how civil society mobilization for migrants can shape relatively inclusionary immigrant incorporation patterns out of restrictive immigration and citizenship policies. By examining the gap between national state policies that exclude immigrants and meso-level practices that have helped foreign residents gain access to services and institutionalized rights, this scholarship offers a window into how local actors confront the challenges of immigrant incorporation and negotiate immigration and citizenship policies. This approach further pushes us to go beyond essentializing categories and inclusionary/ exclusionary binaries that obfuscate the multiple actors and institutions that shape immigrant incorporation. These studies build on the burgeoning scholarship on civil society and democracy in East Asian democracies that emerged from the early 1990s. In Korea and Taiwan, civil society is credited as the central force for democratization against decades of authoritarianism. Beginning with student-led protests that toppled Syngman Rhee’s regime during the so-called April Revolution of 1960 and moving on to the nationwide anti-government demonstrations that pressured the Roh Tae Woo administration to enact a series of sweeping democratic reforms from June 1987, Korea’s civil society – led by a cross-section of radical and moderate labour unions, students, intellectuals, women’s organizations, religious leaders, and middle-class citizens’ groups – continues to feature prominently in studies of Korea’s democratic transition, consolidation, and deepening (Armstrong 2002; S. Kim 2001; Koo 1993; N. Lee 2007; Shin & Chang 2011). In Taiwan, the movement for democratization went hand-in-hand with grassroots pressures for indigenization (or ‘Taiwanization’) of the power structure and the public sphere, in opposition to the decades of martial law and accompanying Sinicization policies enacted by the minority of mainland Chinese who dominated the ruling Kuomintang until the late 1980s (Chun 2000; Y. Lee 2011; Minns & Tierney 2003; Yang 2007). Finally, the scholarship on civil society in Japan has focused on the so-called non-profit organization boom of the 1990s, which had followed the burst of the ‘bubble economy’ at the end of the 1980s and ruptured a postwar political economic order that had prioritized the interests of political elites and big businesses over those of average citizens for decades (Haddad 2007; Martin 2011; Pekkanen 2006; Schwartz & Pharr 2003; Smith 2000). An ineffectual response to the 1995 Hanshin Earthquake by the ruling Liberal Democratic Party in particular brought to the fore longstanding public distrust of the central government and a broad shift toward increasingly pluralized grassroots movements. Rather than focus solely on structural factors at the level of the state or psychological factors at the level of the individual, this scholarship adopts a relational, interactive approach to understanding immigrant incorporation. Studies of the migrant workers’ movement in Korea

Migration politics at the meso-level  39 have demonstrated how the strategic participation of a cross-section of civil-society actors with deep roots in Korea’s democratization movement – including labour unions; Protestant, Catholic, and Buddhist leaders; women’s organizations; citizen groups; and human rights lawyers – imbued migrant advocacy with significant magnitude and potency disproportionate to actual migrant numbers (Chung 2010b; D. Kim 2011; J.K. Kim 2003; J-k. Lee 2010; Lim 2003). Applying the tried-and-true strategies of mass demonstrations and public awareness campaigns, migrant workers and their advocates adopted the language and symbols of Korea’s democratization movement to reframe the debate away from the dangers that migrants posed to Korean society, to the threat that exploitative practices used against migrant workers posed for the hard-fought rights of Korean workers (Chung 2020; Lim 2010). Similarly, Taiwan’s immigrant movement, made up of citizen organizations, human rights lawyers, scholars, religious organizations, and migrants themselves, appealed directly to the three central themes of Taiwan’s democratization movement – democracy, human rights, and multiculturalism – in pushing for reforms to Taiwan’s immigration policies, on the one hand, and the recognition of ‘marriage migrants’ (predominantly female migrant spouses of Taiwanese nationals) among Taiwan’s major ‘multicultural’ groups, on the other (Chung 2020; Hsia 2009; 2013). In both cases, pro-migrant advocacy built on the tradition of civil society activism in earlier movements for democratization and democratic deepening not only to secure rights for migrants, but to further the democratic process. Research on immigration politics in Japan has focused on partnerships between state and civil society actors that have generated an assortment of local immigrant incorporation services and programmes (Milly 2014; Pak 2000; Roberts 2000; Yamanaka 2006). Departing from earlier studies that juxtaposed progressive civil society groups that challenged rigid state actors, the work in this area highlights local attempts to solve specific problems faced by immigrants and the communities in which they reside through partnerships involving like-minded activists, legal associations, labour unions, religious organizations, non-profit organizations, and local government officials (Shipper 2008). Others examine how foreign residents themselves mobilize democratic ideals, international norms, and/or local pressures to negotiate the terms of their political incorporation (Chung 2010a; Gurowitz 1999; Kremers 2014). The East Asian cases thus point to the significant roles played by civil society in shaping paths for immigrant incorporation and political empowerment, which raise questions about the conventional approach to understanding immigrant incorporation as a two-way relationship between the state and individual immigrants. Further, as Hochschild and Mollenkopf (2009) point out, this process is not necessarily ‘linear or temporally predictable’, as it can be subject to reversal, or disincorporation [25]. Examining immigrant political incorporation in countries with descent-based citizenship policies, moreover, forces us to take a more nuanced approach to understanding political incorporation. Because citizenship acquisition is neither procedural nor automatic at birth, these countries necessarily produce non-national residents who are generations removed from their immigrant ancestry, thereby providing insights into political incorporation across multiple generations of foreigners. Incorporation is thus equivalent neither to full legal membership as national citizens nor to socio-cultural assimilation (Chung 2019).

40  Research handbook on the law and politics of migration

REGULATING MIGRATION AND MEMBERSHIP THROUGH THE HOUSEHOLD REGISTRATION SYSTEM A second major area of research on migration management in East Asia brings our attention to the centrality of meso-level institutions that regulate both internal and external borders. While the dominant English-language scholarship on migration focuses primarily on international migration, movement within national territorial boundaries constitutes by far the largest source of migration in the contemporary world. The research on the household registration system in East Asia, in particular, challenges the common understanding that culture, specifically claims of ethnocultural homogeneity, explains restrictive immigration and citizenship policies; instead, this area of inquiry highlights a distinctly modern meso-level institution that corresponds neither with the territorial boundaries of the nation-state nor with immutable blood ties that traverse nation-states (Chung, Draudt, & Tian 2020). Internal migrants are native populations who are neither legally nor culturally foreign but are often stripped of their full citizenship rights based on movement. In mainland China, the very documents that authenticate internal migrants’ juridical membership in the nation-state – that is, the household registry or hukou – often impede their substantive citizenship in their local communities of residence (Chung 2017). On the one hand, native Chinese must be registered as members of a household, referring to a collective unit based on kinship ties, in order to be recognized as nationals of the People’s Republic of China. The household registry additionally serves as a form of identification that ties an individual to a family unit and a locality, much like civil registration records elsewhere. On the other hand, China’s contemporary household registration system became the basis for classifying citizens into rural or urban based on their geographical location, and agricultural or non-agricultural family units based on their socioeconomic status, which in turn determined their mobility rights and access to state-rationed goods and services. Because of the close association between the rural/urban and agricultural/ non-agricultural classifications, this system compelled specific populations to become migrant through mass resettlements of previously urban households to rural areas and their conversion into agricultural households (Cheng & Selden 1994). The vast scholarship on the household registration system in China suggests that it remains one of the most important tools – if not the single most important – used by the state to regulate access to education, health care, employment, and housing (see Wu & Treiman 2004; Zhang 2018). Chan and Zhang’s (1999) seminal article describes how this descent-based, meso-level registration system served as a type of domestic citizenship regime from its formal establishment in the late 1950s to monitor population movement, much like the Soviet propiska (internal passport) system, which included the application of migration permits, quotas, and urban entry fees. These practices further gave rise to ‘undocumented’ migrants in urban areas being among those unable to change their hukou registration from rural to urban and convert their hukou status from agricultural to non-agricultural in a process called nongzhuanfei. Without an urban hukou, migrants were excluded from basic educational, employment, and health care rights, much like undocumented international migrants elsewhere (Solinger 1999). Although the Xi Jinping administration abolished the nongzhuanfei requirement and relaxed controls on internal movement, the household registration system continues to serve as the institutional basis for differential citizenship rights and as an important instrument for state surveillance. While the formal distinction between rural and urban residents has been phased out, each household’s migration history is nevertheless visible since the household registry

Migration politics at the meso-level  41 records up to three generations of the household and the local districts in which they are registered (Hao & Liang 2016). And despite the removal of strict controls on spatial mobility, the digitization of household registration information and the development of biometric technology have facilitated the surveillance of targeted populations, who may be blocked from applying for or renewing their passports, purchasing travel tickets, or booking accommodation (Liu 2009; Wang 2005). Studies of the household registration system in other parts of East Asia have shown how this meso-level institution has also become the foundation for governing citizenship attribution and, in some cases, immigration policies (Chapman & Krogness 2014; Hwang 2004; Winther 2008). Although the household registration system overlaps with the principle of jus sanguinis, it is a strictly formal institution that cannot be substituted by evidence of common ethnic ancestry: an individual must be registered in a household located within the given country in order to be recognized as a national citizen. Native populations without a household registry are, in effect, stateless (Chen 2014). Blood lineage and primordial descent are thus insufficient for determining national membership in East Asia (Chung, Draudt, & Tian 2020). Established as a system to register subjects according to households by Meiji Japan (1868–1912), this practice of authenticating juridical membership extended to Japan’s colonies and re-emerged in postwar Japan and postcolonial Taiwan and South Korea. Whereas imperial Japan applied the koseki system to distinguish between colonizers and colonial subjects in Japan’s empire, postwar Japan used it as the basis for denationalizing former colonial subjects. The location of one’s koseki became the basis for extending the 1946 Alien Registration Law to those residing in Japan proper, which set the stage for the denationalization of all former colonial subjects in 1952 (Chung 2010a). While Taiwan’s household registration system has its roots in the colonial era, the location of an individual’s hukou became central to Taiwan’s citizenship policies only after Taiwan’s democratic transition. Rigger (2002) argues that authoritarian-era Taiwan maintained a generous definition of Taiwanese nationality to include all persons with Chinese parents in order to support the ruling Kuomintang’s claim that the Republic of China represented all of China; at the same time, Taiwanese nationality came with few citizenship rights during the authoritarian era and could thus be extended generously at little cost. Rather than redefine Taiwanese nationality post-democratization, the 1992 Act Governing Relations between the People of the Taiwan Area and the Mainland Area established that only Taiwanese nationals with household registration in the ‘free’ or ‘Taiwan Area’ of the Republic of China would be eligible for full civil, social, and political citizenship rights, thereby separating formal national membership (that is, Taiwanese nationality) and full citizenship rights on the basis of an individual’s meso-level membership in a household registry (Chung 2020; Friedman 2015; Lan 2008). Korea’s hojeok system has been the primary institution determining inheritance through patrilineage since its establishment during the colonial era. Although Korea’s citizenship policies are built around the household registration system, a well-organized women’s movement successfully challenged the latter’s legal primacy in the 1990s, drawing attention to the system’s patriarchal practices that were rooted in Japanese colonial rule (D.Y. Kim 2015; H-K. Lee 2008). Despite revisions to the household registration law since 2008, the hojeok continues to feature prominently in Korea’s immigration policies, specifically those pertaining to co-ethnic immigrants. Whereas co-ethnic immigration policies in countries such as Spain, Germany, and Israel generally provide an expedited path to citizenship on the basis of common descent

42  Research handbook on the law and politics of migration (Dumbrava 2014; Joppke 2005; Skrentny et al. 2007), Korea’s co-ethnic policies apply only to those who have a household registry in Korea (Chung, Draudt, & Tian 2020; J. Kim 2016). In sum, studies of the household registration system in East Asia provide insights into how meso-level institutions mediate both citizenship attribution and migration management. Unlike citizenship policies based primarily on jus soli or jus sanguinis, national membership in East Asia is organized around neither territorial nor ethnocultural inclusion but rather the local institutional domain of the household registry that codifies household corporate units in positive law. This meso-level institution not only determines citizenship attribution but is also an important tool used by the state to regulate internal and external entry and exit for citizens and non-citizens alike. Across East Asia, individuals who are not citizens of another country must be registered in a household in order to be recognized as a national citizen; unregistered native populations are effectively stateless. At the same time, the very institution that authenticates an individual’s legal juridical membership in the nation-state has served as the institutional basis for differential citizenship rights based on gender, local origins, and/or socioeconomic status (Chung, Draudt, & Tian 2020). The location of one’s household registry, moreover, is a crucial determinant of eligibility for preferential immigration policies, visas, and citizenship rights in Japan, Korea, and Taiwan. In China, internal migrants without local household registration in their area of residence have faced forms of exclusion and discrimination similar to those faced by undocumented international migrants elsewhere. The research in this area thus challenges us to critically examine our dichotomous worldviews about citizens/non-citizens, internal/international migrants, and civic/ethnic or liberal/illiberal citizenship and immigration policies.

CONCLUSION The study of migration and citizenship in East Asia points to their dynamic relationship. Not only does migration shape citizenship policies and practices, but citizenship policies and practices may be the primary drivers for migration. Examining the meso-level actors and institutions that mediate migration management, immigrant incorporation, and citizenship attribution sheds light on the local interactions between state and non-state actors over contested claims to migrant rights and recognition. Meso-level analysis thus helps us to better understand the gaps between immigration policies and immigrant political behaviour, divergent immigrant incorporation patterns among similarly situated countries, subnational variations, and contradictions within migration regimes. Rather than assume that exclusionary policies are driven by ethnocultural understandings of nationhood or that liberal policies necessarily result in inclusionary immigrant incorporation outcomes, for example, research on the meso-level of migration politics pushes us to consider the intermediary organizations, local institutions, and networks that facilitate, inhibit, undermine, and challenge the laws on the books. This area of research also contributes to the scholarship on multi-level citizenship that examines the interdependent, overlapping spheres of jurisdiction at the subnational, national, and supranational levels (Bauböck 2010; Maas 2017; 2013). Further comparative research that analyses the formal and informal institutions that mediate membership and movement has the potential to move us beyond simple liberal/illiberal and ethnic/civic dichotomies and contribute insights into the grey areas between citizens and non-citizens and internal and international migrants. The very meso-level institutions that

Migration politics at the meso-level  43 extend quasi-dual citizenship rights to co-ethnic international migrants, for example, may also create pockets of ‘undocumented’ populations among native citizens due to the absence of official documentation (Sadiq 2009) or through informal practices that limit access to citizenship rights (Abbas 2016). Meso-level institutions that extend beyond national boundaries can also generate ‘in-between’ statuses among both native and migrant populations, excluding some native populations and including some external populations based on colonial classifications, kinship networks, and religion, for example (Lori 2017). This area of research also has far-reaching comparative implications for understanding the role that documentation plays in the political participation of non-citizens in developing democracies. In societies where the bureaucratic capacity of the state is limited and large numbers of people lack identity documentation, documentation can blur the lines between citizens and non-citizens, and, consequently, raise the question of who is eligible to engage in the electoral process (Chung & Abbas 2018). Similarly, international migrants may have greater educational and employment opportunities than native internal migrants due to disparities in access to formal paperwork (Chung 2017). Finally, meso-level analysis offers fertile ground for rethinking how states manage migration and mobility during the process of state-building and re-building (Adamson & Tsourapas 2019). The formal and informal institutions that are grounded in religion, ethnicity, and kinship inform both citizenship attribution and loss, bringing to light how some native populations come to be defined as foreign and made migrant (Lori 2019). A research agenda that prioritizes the meso-level of migration politics requires a radical remapping of what we consider the ‘global’, going beyond not only the dominant North American and Western European cases but also conventional global North/South contrasts and regional groupings. We need to expand not just our cases but also our core questions and concepts. Rather than question the relevance or ‘fit’ of our cases to dominant theoretical frameworks and models in the study of migration politics, the question at hand is whether or not existing concepts in the field can sufficiently explain migration politics in a variety of contexts.

WORKS CITED Abbas, R. (2016) ‘Internal migration and citizenship in India’, Journal of Ethnic and Migration Studies, 42(1): 150–68. Adamson, F.B. and Tsourapas, G. (2019) ‘The migration state in the global South: Nationalizing, developmental, and neoliberal models of migration management’, International Migration Review, online, doi:​10​.1177/​0197918319879057. Andersen, K. and Cohen, E.F. (2005) ‘Political institutions and incorporation of immigrants’, in C. Wolbrecht and R. Hero (eds.) The Politics of Democratic Inclusion, Philadelphia: Temple University Press, pp. 186–205. Armstrong, C. (ed.) (2002) Korean Society: Civil Society, Democracy and the State, London and New York: Routledge. Bauböck, R. (2010) ‘Studying citizenship constellations’, Journal of Ethnic and Migration Studies, 36(5): 847–59. Bloemraad, I. (2006) Becoming a Citizen: Incorporating Immigrants and Refugees in the United States and Canada, Berkeley: University of California Press. Chan, K.W. and Zhang, L. (1999) ‘The Hukou system and rural-urban migration in China: Processes and changes’, The China Quarterly, 160: 818–55. Chapman, D. and Krogness, K.J. (eds.) (2014) Japan’s Household Registration System and Citizenship: Koseki, Identification and Documentation, Hoboken: Taylor and Francis.

44  Research handbook on the law and politics of migration Chen, T-s. (2014) ‘Officially invisible: The stateless (Mukokusekisha) and the unregistered (Mukosekisha)’, in D. Chapman and K.J. Krogness (eds.) Japan’s Household Registration System and Citizenship: Koseki, Identification and Documentation, Hoboken: Taylor and Francis, pp. 221–38. Cheng, T. and Selden, M. (1994) ‘The origins and social consequences of China’s Hukou System’, The China Quarterly, 139: 644–68. Chun, A. (2000) ‘Democracy as hegemony, globalization as indigenization, or the “culture” in Taiwanese national politics’, Journal of Asian and African Studies, 35(1): 7–28. Chung, E.A. (2010a) Immigration and Citizenship in Japan, New York: Cambridge University Press. Chung, E.A. (2010b) ‘Workers or residents? Diverging patterns of immigrant incorporation in Korea and Japan’, Pacific Affairs, 83(4): 675–96. Chung, E.A. (2017) ‘Citizenship in non-Western contexts’, in A. Shachar, R. Bauböck, I. Bloemraad, and M.P. Vink (eds.) Oxford Handbook of Citizenship, Oxford: Oxford University Press, pp. 431–52. Chung, E.A. (2019) ‘Creating hierarchies of noncitizens: Race, gender, and visa categories in South Korea’, Journal of Ethnic & Migration Studies, online, doi:​https://​doi​.org/​10​.1080/​1369183X​.2018​ .1561061. Chung, E.A. (2020) Immigrant Incorporation in East Asian Democracies, New York and Cambridge: Cambridge University Press. Chung, E.A. and Abbas, R. (2018) ‘Noncitizen political engagement’, in G. Liu-Farrer and B.S.A. Yeoh (eds.) Routledge Handbook of Asian Migrations, New York: Routledge, pp. 264–76. Chung, E.A., Draudt, D. and Tian, Y. (2020) ‘Regulating membership and movement at the meso-level: Citizen-making and the household registration system in East Asia’, Citizenship Studies, 24(1): 76–92. Cohen, E.F. (2009) Semi-Citizenship in Democratic Politics, Cambridge and New York: Cambridge University Press. de Graauw, E. (2016) Making Immigrant Rights Real: Nonprofits and the Politics of Integration in San Francisco, Ithaca: Cornell University Press. Dumbrava, C. (2014) ‘External citizenship in EU countries’, Ethnic and Racial Studies, 37(13): 2340–60. Faist, T. (2010) ‘The crucial meso-level’, in M. Martiniello and J. Rath (eds.) Selected Studies in International Migration and Immigrant Incorporation, Amsterdam: Amsterdam University Press, pp. 59–90. Fine, G.A. (2012) ‘Group culture and the interaction order: Local sociology on the meso-level’, Annual Review of Sociology, 38: 159–79. Friedman, S.L. (2015) Exceptional States: Chinese Immigrants and Taiwanese Sovereignty, Berkeley: University of California Press. Glenn, E.N. (2002) Unequal Freedom: How Race and Gender Shaped American Citizenship and Labor, Cambridge, MA: Harvard University Press. Gurowitz, A. (1999) ‘Mobilizing international norms: Domestic actors, immigrants, and the Japanese state’, World Politics, 51(3): 413–45. Haddad, M.A. (2007) Politics and Volunteering in Japan: A Global Perspective, New York: Cambridge University Press. Hao, L. and Liang, Y. (2016) ‘The spatial and career mobility of China’s urban and rural labor force’, Management and Organization Review, 12(1): 135–58. Hochschild, J.L. and Mollenkopf, J.H. (2009) ‘Modeling immigrant political incorporation’, in J.L. Hochschild and J.H. Mollenkopf (eds.) Bringing Outsiders In: Transatlantic Perspectives on Immigrant Political Incorporation, Ithaca and London: Cornell University Press, pp. 15–30. Hsia, H.-C. (2009) ‘Foreign brides, multiple citizenship and the immigrant movement in Taiwan’, Asian and Pacific Migration Journal, 18(1): 17–46. Hsia, H-C. (2013) ‘The tug of war over multiculturalism: Contestation between governing and empowering immigrants in Taiwan’, in A.E. Lai, F.L. Collins, and B.S.A. Yeoh (eds.) Migration and Diversity in Asian Contexts, Singapore: Institute of Southeast Asian Studies, pp. 130–59. Hwang, K.M. (2004) ‘Citizenship, social equality and government reform: Changes in the household registration system in Korea, 1894–1910’, Modern Asian Studies, 38(2): 355–87. Joppke, C. (2005) Selecting by Origin: Ethnic Migration in the Liberal State, Cambridge, MA: Harvard University Press. Kim, D. (2011) ‘Promoting migrants’ rights in South Korea: NGOs and the enactment of the employment permit system’, Asian and Pacific Migration Journal, 20(1): 55–78.

Migration politics at the meso-level  45 Kim, D.Y. (2015) ‘Bargaining citizenship: women’s organizations, the state, and marriage migrants in South Korea’, PhD Thesis, Johns Hopkins University. Kim, J. (2016) Contested Embrace: Transborder Membership Politics in Twentieth-Century Korea, Stanford: Stanford University Press. Kim, J.K. (2003) ‘Insurgency and advocacy: Unauthorized foreign workers and civil society in South Korea’, Asian and Pacific Migration Journal, 12(3): 237–69. Kim, S. (2001) Politics of Democratization in Korea: The Role of Civil Society, Pittsburgh: University of Pittsburgh Press. Koo, H. (ed.) (1993) State and Society in Contemporary Korea, Ithaca: Cornell University Press. Kremers, D. (2014) ‘Transnational migrant advocacy from Japan: Tipping the scales in the policy-making process’, Pacific Affairs, 87(4): 715–41. Lan, P-C. (2008) ‘Migrant women’s bodies as boundary markers: Reproductive crisis and sexual control in the ethnic frontiers of Taiwan’, Signs: Journal of Women in Culture and Society, 33(4): 834–61. Lee, H-K. (2008) ‘International marriage and the state in South Korea: Focusing on governmental policy’, Citizenship Studies, 12(1): 107–23. Lee, J-k. (2010) Service Economies: Militarism, Sex Work, and Migrant Labor in South Korea, Minneapolis: University of Minnesota Press. Lee, N. (2007) The Making of Minjung: Democracy and the Politics of Representation in South Korea, Ithaca: Cornell University Press. Lee, Y. (2011) Militants or Partisans: Labor Unions and Democratic Politics in Korea and Taiwan, Stanford: Stanford University Press. Lim, T.C. (2003) ‘Racing from the bottom in South Korea? The nexus between civil society and transnational migrants’, Asian Survey, 43(3): 423–42. Lim, T.C. (2010) ‘Rethinking belongingness in Korea: Transnational migration, “migrant marriages” and the politics of multiculturalism’, Pacific Affairs, 83(1): 51–71. Liu, G. (2009) ‘Changing Chinese migration law: From restriction to relaxation’, Journal of International Migration and Integration, 10(3): 311–33. Lori, N. (2017) ‘Statelessness, “in-between” statuses, and precarious citizenship’, in A. Shachar, R. Bauböck, I. Bloemraad, and M. Vink (eds.) Oxford Handbook of Citizenship, Oxford: Oxford University Press, pp. 743–66. Lori, N. (2019) Offshore Citizens: Permanent Temporary Status in the Gulf, Cambridge and New York: Cambridge University Press. Maas, W. (2017) ‘Multilevel and federal citizenship’, in A. Shachar, R. Bauböck, I. Bloemraad, and M. Vink (eds.) Oxford Handbook of Citizenship, Oxford: Oxford University Press, pp. 644–68. Maas, W. (ed.) (2013) Multilevel Citizenship, Philadelphia: University of Pennsylvania Press. Marrow, H.B. (2005) ‘New destinations and immigrant incorporation’, Perspectives on Politics, 3(4): 781–99. Martin, S.L. (2011) Popular Democracy in Japan: How Gender and Community Are Changing Modern Electoral Politics, Ithaca: Cornell University Press. Milly, D.J. (2014) New Policies for New Residents: Immigrants, Advocacy, and Governance in Japan and Beyond, Ithaca: Cornell University Press. Minns, J. and Tierney, R. (2003) ‘The labour movement in Taiwan’, Labour History, 85(November): 103–27. Pak, K.T. (2000) ‘Foreigners are local citizens, too: Local governments respond to international migration in Japan’, in M. Douglass and G. Roberts (eds.) Japan and Global Migration, New York: Routledge, pp. 244–74. Pekkanen, R. (2006) Japan’s Dual Civil Society: Members without Advocates, Stanford: Stanford University Press. Rigger, S. (2002) ‘Nationalism versus citizenship in the Republic of China on Taiwan’, in M. Goldman and E.J. Perry (eds.) Changing Meanings of Citizenship in Modern China, Cambridge, MA: Harvard University Press, pp. 353–72. Roberts, G. (2000) ‘NGO support for migrant labor in Japan’, in M. Douglass and G. Roberts (eds.) Japan and Global Migration, New York: Routledge, pp. 275–300. Sadiq, K. (2009) Paper Citizens: How Illegal Immigrants Acquire Citizenship in Developing Countries, Oxford and New York: Oxford University Press.

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5. The problem of boundaries: the Constitution and the meaning of citizenship Asha Kaushal1

INTRODUCTION The regulation of migration is underwritten by political questions about community and membership. At the bottom of all immigration laws lie certain presumptions about boundaries and closure. Political theorists wrestle with these same presumptions when they justify the scope of democracy, the reach of coercion, or the basis for membership. In political theory terms, this is sometimes called ‘the boundary problem’: the prior need to delimit the people who will count for determining the boundaries. One of the most salient functions of boundaries is to act as the gatekeeper of membership. The form of legal membership that matters most in the contemporary era of sovereign statehood is citizenship. This chapter examines the meaning of citizenship in Canada through the aperture between permanent residence and citizenship. By examining instances in which citizenship is claimed or sought, the tensions embodied in the category of long-term residence are revealed.2 I examine these claims through the constitutional framework for citizenship in Canada, with a view to understanding the legal form of this tension. Although this chapter focuses on the Canadian legal framework, it is nonetheless germane to other countries of immigration. In light of the ubiquitous presence of political communities and borders, theoretical inquiries into the relationship between political theory and law may prove useful outside of particular national contexts. Similar questions may arise and similar forms and concerns may already be visible on the horizon. In Canada, the legal framework that governs these citizenship claims is conscribed by the ambiguous relationship between statutory and constitutional law.3 This legal framework is the gatekeeper of citizenship in Canada. Its circumscription may be fruitfully analysed through immigration law’s complicity in the boundary problem. Immigration law’s reliance on political and territorial boundaries reveals the importance of citizenship’s legal location for its meaning, scope, and adhesion. This location matters for the content of citizenship, and also for its political malleability. Citizenship could become more inclusive if it were to squarely address the boundary problem. The proliferation of recent scholarly concepts that address the inclusion of long-term residents often frame their claims using citizenship’s own criteria of residence, community, and ties. The language of these claims exposes what the boundary problem papers over: the political basis of citizenship. It reveals, in other words, the fundamentally political foundations of immigration law. The chapter proceeds in four sections. I begin by setting out the intensifying problem posed by long-term permanent residents in immigration states. At the same time as these states have prioritized the removal and deportation of noncitizens with criminal convictions, the long-term residence of these noncitizens presents compelling reasons to let them remain. The following section explains the boundary problem in political theory and its importance for immigration 47

48  Research handbook on the law and politics of migration law. In the third section, I set out the legal regime that establishes the citizen/noncitizen distinction in Canadian constitutional law. Section 6 of the Canadian Charter of Rights and Freedoms (Charter) embodies this distinction and has been literally and restrictively interpreted by courts. The chapter concludes by considering what concepts such as that of the ‘denizen’ add to a robust and inclusive understanding of citizenship.

THE PROBLEM POSED BY LONG-TERM PERMANENT RESIDENTS Long-term permanent residents are a source of simmering tension in liberal democratic immigration states. Often, their lived experience closely resembles that of citizens: they immigrated as small children; they do not speak the language of their home country; they have families, communities, and jobs; and they consider their country of residence to be their home. However, they lack some of the rights of citizenship as well as the ability to enforce them, and they are perpetually vulnerable to deportation. For a short while in the late 1990s and early 2000s, it seemed this tension could be sidestepped by the reach of international human rights norms, which introduced a rapprochement between citizen status and resident status. Scholars theorized that citizens and residents enjoyed similar rights and privileges, making citizenship a less important status than had been the case in the past (Jacobson 1996; Soysal 1994; Bosniak 2000; Joppke 2010). The European Court of Human Rights found that resident status as a third country national entailed certain rights (see Maslov v Austria 2008). Long-term permanent residents were able to conduct a nearly-citizen life in their host countries. As Peter Spiro (2007) wrote, ‘the real prize is legal residency, not citizenship’ [159]. Matthew Gibney (2013) tangibly explained how permanent residents often enjoy ‘rights to vote in local elections, access to welfare on par with nationals, greater security of residence, and most other social, economic, and civil rights’ [221]. Then, in a wave of non-concerted but remarkably comparable moves, immigration states ramped up their removal and deportation of foreign criminals. It is this wave that brings the tensions embodied by permanent residents back to the fore. Against very different sets of background conditions, the US, the UK, and Canada (among others) began concentrating their political rhetoric, laws, and resources on deporting foreign criminals (Gibney 2011). By the time the wave reached Canada, it was a transparent political manoeuvre to stir up public support for divisive and essentialized immigration politics (Faster Removal of Foreign Criminals Act 2013; Citizenship and Immigration Canada 2012; see also Kaushal 2016). Underlying this wave was the political calculation that noncitizen criminals were not part of the national political community and would not attract public sympathy or support. Although perhaps less sympathetic than other permanent residents, noncitizen criminals bring to the surface the same tensions. They have often been in the country since early childhood, they have families and children who are citizens, and their work and communities are in their country of residence. They are, in most respects, analogous or at least proximate to citizens. The tensions present in Canada have been held in place by a specific interpretation of the Charter’s section 6 mobility provision. According to this reading, ‘citizen’ does not have any constitutionally independent meaning, but rather is whatever the legislature – through statute – says it is. The menace posed by a conception of citizenship unmoored from constitutional law

The problem of boundaries  49 and without outer limits is that the politics of the day may wholly define who is a citizen. This is saturated with discriminatory potential.4 This chapter compiles a set of cases about the reach and meaning of section 6 and places them against the background of the boundary problem. The cases provide a snapshot of the interpretative legal framework that governs the long-term permanent resident’s claim to some kind of substantive citizenship protection. The tensions present in this scheme are based on specific assumptions about political community, temporality, and closure. In this framework, immigration comes after the political community has set its boundaries. The justice or authority of those boundaries is up for grabs, but that problem is located in political theory, not in immigration law. The long-term permanent resident contests those boundaries, making claims for the extension of the political community. These claims personify the contingency of those boundaries and immigration law’s participation in their construction and maintenance. The boundary problem articulates this contingency, and shows that immigration law is working with an under-theorized understanding of political community (Song 2016, [226]).

THE BOUNDARY PROBLEM AND POLITICAL FOUNDATIONS When Frederick Whelan coined the term ‘the boundary problem’, he was concerned with the question of how to constitute the demos in political theory.5 This is the puzzle of ‘how to decide who legitimately make up “the people” and hence are entitled to govern themselves’.6 This question is theoretically important because, as Seyla Benhabib (2004) explained, ‘democratic laws require closure precisely because democratic representation must be accountable to a specific people’ [219]. The boundary problem goes by different names in constitutional theory and it is important there for slightly different reasons. Sometimes called the problem of constituent power or the paradox of constitutionalism, it matters for justifying the authority of the constitution for those whom it covers (Loughlin & Walker 2017). Although these theorists do not use the vocabulary of ‘membership’ or ‘citizenship’, the boundary problem effectively describes the parameters of membership. The people represented in a democracy or the people protected by a constitution are almost always also the citizens of the state. Thus, boundaries matter in similar but not identical ways in democratic theory, constitutional theory, and immigration theory. In immigration law, the boundary problem highlights the extent to which the bounds of membership remain under-theorized and under-justified. Like political and constitutional theory, immigration law treats the members of the political community as pre-existing and determinative. It is concerned with boundary maintenance. While the justice and authority of those boundaries may be contingent and questionable, those arguments are located in the temporally prior world of political theory, not in immigration law. Immigration takes the community and its members as it finds them. Bosniak (2006) identified this problem in her book The Citizen and the Alien. Citizenship, she explained, is a divided concept: citizenship conveys a state of belonging and inclusion, but it is premised on a ‘conception of community that is bounded and exclusive’ [1]. She describes these as the inward-looking and boundary conscious worlds of citizenship discourse [2]. The reason why citizenship scholars focus on citizenship within the state is because ‘reliance on the premises of completion and closure permit scholars to avoid a host of crucial normative questions inti-

50  Research handbook on the law and politics of migration mately linked to debates over citizenship … Questions, in particular, about the scope of our moral identifications’ [7]. Bosniak is concerned with this moral nationalism because it is descriptively inaccurate in an era of interpenetration and introgression of borders, and because it is ‘nonsensical in purely formal terms’ [8]. She is referring to the boundary problem: ‘there is no way to coherently address the substantive citizenship dynamics within a community until we contend with the citizenship questions of who belongs and how decisions about who belongs are to be reached’ [9]. Into this incoherence steps immigration law, the primary instrument of boundary maintenance, patrolling entry to the community of citizen members without answers to the questions of who belongs and how to decide. As Catherine Dauvergne (2008) observed, immigration laws establish the pool of potential citizens, choosing members in a setting unconstrained by citizenship law’s lofty ideals of equality and neutrality. The political community is in the very near background of immigration laws, its own boundaries unjustified and yet nonetheless determinative of the rules for future members. There have been various responses to the boundary problem. In her work, Sarah Song (2012) explores the scope of political theory concepts in the immigration and citizenship context. As she explains, sometimes theorists simply permit the boundary question to be answered by the ‘contingent forces of history’.7 At other times, they presuppose ‘the existence of a political community bounded by a territorial state’.8 Some put forward a nationalist answer, which typically relies on some idea of a pre-political cultural nation (see for example Walzer 1983; Miller 1995). For Michael Walzer (1983), ‘we who are already members do the choosing’ [29, 32]. That ‘we’, for Walzer, is a group that shares a cultural identity. For David Miller (1995), nations are communities bound by ‘natural sentiments’ entitled to decide [58]. More recently, political theorists have suggested theoretical principles to guide the drawing and reach of boundaries; for example, the principle of affected interests or the coercion principle (Song 2012, [40]).9 The latter two principles expand the universe of people who may be included within the boundaries of a community or demos (which is not necessarily a state). As Song (2012) concludes, they are ‘radically inclusionary in scope’ [51]. In immigration matters, there is little room for these principles. The state and its existing boundaries are determinative, and the first three justifications – contingency, presupposition, and nationalism – are the ones which hold sway in immigration law. Not all of this analysis is new; some aspects of these debates have been part of the immigration law canon for decades. However, isolating the boundary problem in the particular context of claims to substantive citizenship protections in Canadian constitutional law reveals the limits of citizenship.10 This chapter focuses on how, in the moments when long-term permanent residents make citizenship claims (to broaden its scope or function), the boundary problem comes to the surface. They show the unresolved political foundations of membership. In some senses, it is the boundary question which most clearly identifies the reason why the claims of long-term permanent residents are simultaneously compelling and insoluble in the existing framework of citizenship.

The problem of boundaries  51

THE LEGAL REGIME GOVERNING LONG-TERM PERMANENT RESIDENTS The relationship between immigration law and its political foundations is visible in the various parts of the legal regime governing permanent residents. In this section, I examine the constitutional framework that governs the citizen/permanent resident distinction and the case law interpreting that distinction. The Constitution: Tracing the History of Section 6 Canadian courts have not interpreted the constitutional framework to include robust protection for noncitizens (Dauvergne 2013). Jurisprudence has found that the right to life, liberty, and security of the person in section 7 does not reach most individuals and families in the web of removal and deportation, and the right to equality in section 15 does not admit immigration status as an enumerated or analogous ground of discrimination (Grey 2016; Heckman 2017; Irshad (Litigation guardian of) v Ontario; Toussaint v Canada 2011; Doctors for Refugee Care v Canada 2013). Against this backdrop, section 6 is the poor cousin of Charter provisions: neither a fundamental freedom nor a legal right; rarely invoked and less often adjudicated. It nonetheless expresses the citizen/noncitizen distinction that has come to embody and underwrite the interpretative framework that governs immigration law, and so it is important to trace its negotiating and judicial history. The Charter sets out several rights and fundamental freedoms. Most Charter provisions apply to ‘everyone’, ‘anyone’, and ‘any person’ (ss. 2, 7, 8, 9, 10, 12, 17). Section 15 applies to ‘every individual’. Voting rights, international mobility rights, and minority language education rights are conferred only upon ‘citizens’ (ss. 3, 6, 23). Section 6 distinguishes between citizens and permanent residents, providing the former with the international mobility rights ‘to enter, remain in, and leave Canada’ and the latter with internal mobility rights between the provinces and territories. Section 6 reads: (1) Every citizen of Canada has the right to enter, remain in and leave Canada. (2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right (a) to move to and take up residence in any province; and (b) to pursue the gaining of a livelihood in any province. (3) The rights specified in subsection (2) are subject to (a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and (b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services. (4) Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada.

Subsections 1 and 2 are mobility rights, while subsections 3 and 4 are limitations on those rights. Section 6 is helpfully considered as two separate provisions: the first, section 6(1), is concerned with the right to enter, remain, and exit Canada, while the second, sections 6(2),

52  Research handbook on the law and politics of migration (3), and (4), are concerned with interprovincial mobility and its limits. In the early years after the passage of the Charter, scholars and courts focused on the second part of the provision, often explaining that section 6’s primary purpose was to overcome the ‘economic balkanization’ of Canada (Russell 1983; Bernhardt 1987). As Peter Russell (1987) explained, citing the Honourable Jean Chrétien, the mobility rights in section 6 aim at overcoming balkanization by giving citizens and permanent residents the right ‘to take up residence and to pursue a livelihood anywhere in Canada without discrimination based on the previous province of residence’ [38]. He compared them to the language clauses: exempt from the section 33 notwithstanding clause (meaning the provinces could not override them), and expressing ‘pan-Canadian nationalism’ [38]. In this view of section 6, it ‘deals only with labour mobility’ [39]. This understanding is bolstered by both the negotiating history of section 6 and the early cases interpreting its scope. The members of the Special Joint Committee of the Senate and the House of Commons on the Constitution were instrumental in drafting the Charter, and the transcripts of their questions and consultations provide further insight (Dodek 2018). In his commentary to the transcripts, Adam Dodek (2018) explains that ‘mobility rights were a key component of Trudeau’s vision of the Charter as a nation-building instrument’ [160–1].11 The discussion at the Joint Committee primarily focused on several discrete issues having to do with the second part of section 6. The transcript excerpts reveal the underlying economic nature of the mobility principle and a corollary focus on internal mobility. Concerns were raised that section 6 heightened provincial restrictions on mobility and created a ‘series of sovereign states’ inside the federation (Dodek 2018, [163]). With respect to section 6(1), there was limited discussion about the citizen/permanent resident distinction. Professor Max Cohen stated: ‘[W]e are concerned that the section begins, “Every citizen”. We are not sure if you really want to confine that mobility right only to citizens. What about permanent residents? … We ought not to have two, three, or four categories of mobile citizens in Canada’ (Dodek 2018, [161]). There is one line that is particularly striking: ‘we feel the words “permanent resident” has (sic) now become a term of art and should be regarded as such, and, therefore, they should have the full protection as well as the citizens of Section 6(1)’ – a nod to the unconsidered limits of section 6(1) (Dodek 2018, [161]). Nothing came of these comments and no amendments were made to the provision (Dodek 2018). The early cases under the Charter that concerned section 6 were primarily concerned with the meaning of section 6(2) in the context of the rest of section 6 and as limited or not by section 1. The first case to analyse section 6(2) was Law Society of Upper Canada v Skapinker 1984, which challenged the requirement that all members of the Ontario bar must be citizens. The Supreme Court then addressed section 6 in two more significant cases about interprovincial mobility: Black v Law Society of Alberta 1989 [Black] and Canadian Egg Marketing Agency v Richardson 1998. This chapter, however, is not concerned with section 6(2) as regards interprovincial mobility; it focuses instead on claims to citizenship as they are framed under and around section 6(1) of the Charter. There is nonetheless a relationship between them. Citizenship carries certain rights, including typically some mobility rights.12 Despite the overriding concerns about economic union, Justice La Forest in Black confirmed: But citizenship, and the rights and duties that inhere in it are relevant not only to state concerns for the proper structuring of the economy. It defines the relationship of citizens to their country and the rights that accrue to the citizen in that regard … This approach is reflected in the language of s. 6 of the Charter, which is not expressed in terms of the structural elements of federalism, but in terms of

The problem of boundaries  53 the rights of the citizen and permanent residents of Canada. Citizenship and nationhood are correlatives. Inhering in citizenship is the right to reside wherever one wishes in the country and to pursue the gaining of a livelihood without regard for provincial boundaries. [612]

This characterisation begins to articulate citizenship in light of section 6(1) as a bundle of rights. One of those rights, pace Justice La Forest, is the right to reside and to pursue a livelihood anywhere in the country. This understanding of citizenship holds both promise – ‘it defines the relationship of citizens to their country’ – and peril – ‘the rights that accrue to citizens in that regard’. The former indirectly invokes membership in the political community, while the latter is concerned with the catalogue of rights that inure to the status of citizenship. Over the following years, the courts would focus on the scope and content of those rights, embedding them firmly in a statutory, not constitutional, framework. What is elided in this focus is precisely the implications of the boundary question. Section 6(1): Case Law and the Meaning of Citizenship The language of section 6(1) of the Charter loosely tracks that of Article 12 of the International Covenant on Civil and Political Rights, the treaty considered to inspire its inclusion, which states: 1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.  2. Everyone shall be free to leave any country, including his own.  3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.  4. No one shall be arbitrarily deprived of the right to enter his own country.13

On the one hand, section 6 is slightly broader than Article 12, expressly including a right to remain in the country for citizens, while Article 12 covers only entry and exit. On the other hand, with respect to categories of people, Article 12 is broader, distinguishing only between those ‘lawfully within the territory of a State’ and the right to enter ‘his own country’, while section 6 distinguishes between permanent residents and citizens but does not refer to others lawfully within the state. The United Nations Human Rights Committee (1999) has interpreted ‘his own country’ to denote a concept wider than nationality: ‘[I]t is not limited to nationality in a formal sense …; it embraces, at the very least, an individual who, because of his special ties to or claims in relation to a given country, cannot be considered to be a mere alien’ [para. 20].14 The Committee’s reference to ‘special ties or claims’, and the term’s use in later cases, echo the bases of nationality in the early Nottebohm case from the International Court of Justice. In her critical account of Nottebohm’s legacy, Audrey Macklin (2018) refers to this as a ‘sociological account of membership’.15 These international interpretations of Article 12 confirm that it is broader and deeper than formal nationality or citizenship.16 Moreover, its international human rights ancestry seems to compel a core constitutional meaning for citizenship, which ought to be included in the Charter alongside other rights because of its human rights character. But, as noted above, it is not located under fundamental freedoms, democratic rights, or

54  Research handbook on the law and politics of migration legal rights; it is part of mobility rights. This placement has had the curious result of underwriting citizenship as a purely statutory creation, rather than a constitutional status or right. Section 6(1) has been raised in various legal contexts, including extradition, deportation, prisoner transfer, passports, and citizenship revocation. In what follows, I examine the interpretation of section 6(1) chronologically, pausing on Chiarelli to highlight its unobvious pairing of sections 6 and 7, and then turn to its more recent forms (Canada (Minister of Employment and Immigration) v Chiarelli [Chiarelli] 1992).17 What emerges from this review is a finding of reliance on the use of statutory terms and meanings to limit the meaning and content of citizenship in section 6(1). This permits the category of citizen to escape constitutional scrutiny so that its political foundations are obscured. The proximity of long-term permanent residents to citizenship cannot find any footing in this interpretative context. In the first case to thoroughly canvass section 6(1), United States of America v Cotroni 1989, the Supreme Court considered whether a Canadian citizen could contest his extradition to the United States based on section 6. Justice La Forest found that extradition did violate the right of every citizen to remain in Canada under section 6, but he ultimately determined that the Extradition Act was saved under the Charter’s section 1 justification provision. He found that section 6(1) extended beyond situations of being ‘expelled, banished, or exiled’ – which were the delimiting terms used in some international instruments – by virtue of its broader wording [18]. But, despite this finding, he expressly noted that ‘the infringement of section 6(1) that results from extradition lies at the outer edges of the core values sought to be protected by that provision’ [19].18 This raises the question of what core values section 6 seeks to protect. The answer to this question would roll out piecemeal over subsequent cases. In 1992, the Supreme Court of Canada decided Chiarelli. This case is the lodestar of judicial interpretation in immigration matters when it comes to the Charter. Chiarelli was a permanent resident who was convicted of serious crimes. He challenged his deportation. The Court found that his criminal acts violated the terms of his contract with the state – a fairly explicit reference to his provisional membership in the political community – and that the deportation process which would remove him did not violate the fundamental principles of justice. The manner in which the Court reached that finding, based on a field-specific contextual approach, is the reason for Chiarelli’s significance: ‘the most fundamental principle of immigration law is that non‑citizens do not have an unqualified right to enter or remain in the country’ [733].19 The Court supported this fundamental principle in part by reference to section 6:20 The distinction between citizens and non-citizens is recognized in the Charter. While permanent residents are given the right to move to, take up residence in, and pursue the gaining of a livelihood in any province, in s. 6(2), only citizens are accorded the right ‘to enter, remain in and leave Canada,’ in s. 6(1).

Thus, the Court concluded, ‘Parliament has the right to adopt any immigration policy and enact legislation prescribing the conditions under which non-citizens will be permitted to enter and remain in Canada’ [20–1]. In other words, the Court used the section 6 distinction to support a plenary type of legislative authority with respect to noncitizens. This broad grant of legislative power to govern the citizen/noncitizen distinction has meant that the distinction is underwritten by statute. The heft of the Chiarelli decision continues to be felt and was recently the subject of two unsuccessful constitutional challenges (Heckman 2017; Grey 2016).21 However, it was in the Federal Courts that the relationship between section 6 and the meaning of citizenship would be solidified.

The problem of boundaries  55 In Canepa v Canada 1992 [Canepa], the Federal Court of Appeal directly addressed the appellant’s claim to an intermediate status of ‘non-expellable alien’ or ‘de facto citizen’. Canepa, a long-term permanent resident convicted of a series of crimes, argued that sections 7 and 12 of the Charter conferred this status on those who have a ‘sufficiently substantial connection’ with Canada [para. 5]. There was even a common law basis for this category in Blackstone’s concept of the ‘denizen’, which captured a category between ‘aliens’ and ‘natives’. The Federal Court of Appeal rejected the common law argument out of hand, finding a lack of precedent for such a de facto status, and concluding that the denizen is properly analogized to ‘a present-day citizen rather than a non-citizen immigrant’ [para. 6]. Turning to the Charter basis for such a claim, the Federal Court of Appeal dismissed the appellant’s section 7 and 12 arguments in light of the Supreme Court of Canada’s decision in Chiarelli.22 Then, in 2000, the Federal Court of Appeal again addressed the meaning of citizenship in Canada in Solis v Canada 1992 [Solis]. Solis was also a long-term permanent resident convicted of several crimes and found to be a danger to the public. The certified question on appeal was: ‘Does the word “citizen” in s. 6 of the Charter of Rights and Freedoms have a meaning independent from statute? If the answer to this question is yes, does a [danger] opinion violate a s. 6 right?’ [para. 2]. Essentially, Solis contended that his permanent resident status under the then Immigration Act underwrote a common law right to be treated as a citizen because of his family ties and roots in Canada. In other words, although Solis was not a citizen under the Citizenship Act, he argued that for Charter purposes he was a citizen [para. 3]. This independent Charter-based right was, he submitted, in addition to the statutory provisions for citizenship. If successful, this argument would have meant that he was entitled to remain in Canada under section 6(1) of the Charter. The Federal Court of Appeal did not agree with Solis, finding that ‘the word “citizen” in section 6 of the Charter has no meaning independent from statute’ [para. 5]. Although the Citizenship Act is subject to the Charter, Solis was not challenging the Citizenship Act, but rather suggesting an additional Charter-based notion of citizenship. The Federal Court of Appeal stated: ‘We agree with Professor Hogg that the concept of citizenship has no meaning apart from statute. Citizenship is a creature of federal statute law.’ [para. 4] Together, Canepa and Solis provide the architecture for a restrictive statute-based understanding of citizenship. The result focuses on the requirements for citizenship under the Citizenship Act, rather than the relationship captured by citizenship status. By ramification, this approach rules out the possibility of an intermediate category for permanent residents based on the constitutional, conceptual, or theoretical meaning of citizenship. Four years later, in Van Vlymen v Canada 2004, Justice Russell canvassed the case law in the context of a prisoner treaty transfer application. He reiterated: In Chiarelli v. Canada (Minister of Employment & Immigration) (1992), 90 D.L.R. (4th) 289 (S.C.C.), at 303-4, the Supreme Court held that non-citizens only have qualified rights and that, as regards  Charter rights, there is a clear distinction between a citizen and non-citizen. In Solis v. Canada (Minister of Citizenship & Immigration) (1998), 147 F.T.R. 272 (Fed. T.D.), at 279-80, a landed immigrant facing deportation argued an entitlement to s. 6 Mobility Rights. The Court rejected the argument holding that citizenship has always been a statutory matter and that to attempt to give any meaning to the word ‘citizen’ outside of the definition in the Citizenship Act would render it meaningless. [para. 17]

56  Research handbook on the law and politics of migration In Taylor v Canada (Taylor), the Federal Court (2006) and later the Federal Court of Appeal (2007) directly confronted the history and concept of citizenship in Canada. Taylor was the son of a Canadian father and a British mother. His father was a soldier during the Second World War, and his mother was a British citizen. Taylor was born out of wedlock, and the issue was whether Taylor had properly lost his Canadian citizenship when he turned 24 years old, as set out in the Citizenship Act. Taylor tells the convoluted history of Canadian citizenship and explains how British subjecthood first placed citizenship under immigration law. In the Federal Court, Justice Martineau explained that the 1910 Immigration Act was the first Canadian legal instrument to introduce the particular status of ‘Canadian citizenship’ into the law. It defined ‘citizen’ as (1) a person born in Canada who has not become an alien, (2) a British subject domiciled in Canada, or (3) a person naturalized in Canada not having lost domicile or become an alien. [para. 88]

Thus, until the passage of the first Citizenship Act, the concept of Canadian citizenship existed only within the realm of immigration law (Saufert 2007, [525]). This followed from Parliament’s authority to adopt immigration laws prescribing the terms of entry for noncitizens; by necessary implication, these laws distinguished noncitizens from citizens. As Donald Galloway (1999) observes, there is considerable overlap between the definition of ‘citizen’ and the category of persons with a Canadian domicile. At the Federal Court, Justice Martineau ventured that this expressed an intent to identify citizens while not challenging colonial superiors [para. 94]. Prior to the Citizenship Act, then: [C]itizenship or nationality laws were determined by three statutes: the Canadian Immigration Act of 1910, designed to meet the needs of immigration and deportation; the Naturalization Act of 1914, adopted in order to meet the needs of imperial nationality; and the Canadian Nationals Act of 1921, enacted to meet the needs of participation in the international community, the League of Nations particularly. [para 40]23

The Federal Court of Appeal reversed the Federal Court, finding that Taylor did not have Canadian citizenship. Justice Décary relied on the Supreme Court’s view in Benner v Canada 1997: ‘before 1947, there was no concept of Canadian citizenship.’24 For the Federal Court of Appeal, the Citizenship Act replaced any prior versions of citizenship status. Justice Décary went on to cite Solis for the proposition that ‘citizenship has no meaning apart from statute’ [para. 50]. These are puzzling interpretations. Surely it cannot be the case that citizenship had no meaning before 1947, or that its functional inclusion in immigration laws was the full extent of its meaning. The colonial relationship undoubtedly introduced additional complexity, but it did not foreclose the possibility of citizenship as a status-based concept of inclusion or membership, even if Canada was not yet an independent sovereign state. Further, citizenship as a status must mean more than the sum total of the statute. As Peter Bernhardt (1999) remarks, otherwise ‘it may thus be argued that Parliament could avoid this provision of the Charter by altering the definition of “citizen”’ [206]. But, as he points out, since Parliament does not undertake to define other terms found in the constitutional documents, it would seem to be open to the courts to determine how terms such as ‘citizen’ are to be defined for purposes of the Charter, independently of their use in other statutes [206].

The problem of boundaries  57 The initial use of citizenship as a tool of immigration law, its subsequent use in several other statutes, and its eventual consolidation in the Citizenship Act matter for the interpretation of section 6 of the Charter. At its core, section 6 is a mobility rights provision. The citizen/ non-citizen distinction simply governs which borders – international or national – may be crossed as of constitutional right. It tracks the early use of citizenship in immigration law. It is not about citizenship writ large and it does not encompass the entirety of its meaning. The judicial understanding of citizenship as wholly statutory confuses citizenship as a mobility status with citizenship as a bundle of rights with citizenship as a political and legal relationship between a state and the people inside it. The first is the basis for entry, stay, and exit; the second is the basis for rights; and the third is the basis for inclusion. In terms of limiting citizenship to a bundle of rights, this obscures the political relationship that underwrites those rights and their enforcement. The Supreme Court gestured toward the political idea of citizenship in Sriskandarajah v United States of America 2012, confirming that the core of section 6(1) is protection against exile and banishment, or ‘exclusion from membership in the national community’.25 Then, one year later, the Supreme Court found that section 6 did not provide a citizen with the automatic right to serve his sentence in Canada. In Divito v Canada 2013, Justice Abella observed: The protection for citizens in s. 6(1), like most modern human rights protections, had its origins in the cataclysmic rights violations of WWII. Writing in the aftermath of that war about her own experience, Hannah Arendt observed that a ‘right to have rights’ flows from citizenship and belonging to a distinct national community. [para. 24]

Referring to the rights set out in section 6(1), Justice Abella stated, ‘they are among the most cherished rights of citizenship’ [para. 1]. They follow from citizenship; in other words, they render citizenship as Audrey Macklin’s (2015) meta-right or Hannah Arendt’s (1979) ‘right to have rights’. In Hassouna v Canada 2017, the Federal Court stated that what follows from citizenship is: [A] bundle of derivative rights such as the right to vote (a right under section 3 of the Charter), the right to enter or remain in Canada (a right under subsection 6(1) of the Charter), the right to travel abroad with a Canadian passport, and access to the Federal Public Service. These are the rights they obtain once they transition from being permanent residents to citizens. [para. 77]

The problem lies in locating the threshold of the right to citizenship. The bundle of rights that flows from citizenship is important, but the prior concept of citizenship – the relationship between state and member – is the foundation for them. By hewing to the statutory definition of citizenship as a bundle of rights, the courts further avoid the moral implications of the boundary problem for long-term residents and remove any basis for their claims to some category of membership.

OF CITIZENS AND DENIZENS The long-term permanent resident challenges these judicial conceptions of citizenship by invoking the spectre of inclusion in the political community. By requiring justification to keep them out of the circle of membership despite their long-term residence inside the state, these

58  Research handbook on the law and politics of migration residents materialize the interface between immigration law and the political community. In one of its earliest formulations, the term ‘denizen’ captured the political implications of this interface. Before the epoch of modern constitutional statehood, the terms ‘subject’ and ‘denizen’ were often used in contexts which would now suggest use of the term ‘citizen’ (Koessler 1946, [58]). For a period, as the United Kingdom in particular commuted some of its colonies, the terms ‘subject’ and ‘citizen’ would be used interchangeably. In his Commentaries, Sir William Blackstone (1979) explained that the denizen is ‘in a kind of middle state between an alien, and a natural born subject, and partakes of both of them’. A similar kind of contemporary middle ground has been suggested by various scholars. Tomas Hammar (1990) follows Blackstone in calling long-term permanent residents ‘denizens’; Elspeth Berry (2009) refers to them as ‘virtual nationals’; and Michelle Foster (2009) calls them ‘aliens by the barest of threads’. Linda Bosniak (2000) uses the term ‘territorial personhood’ [55], while Hiroshi Motomura (2006) argues that there is a gradient of noncitizen immigrants whose treatment depends on the ties they have formed in the country, which he calls ‘immigration as affiliation’ [11]. Joseph Carens (2013) calls this ‘social membership’ [60, 160], while Ayelet Shachar (2009) has proposed the concept of jus nexi to enlarge the citizenship circle. For these theorists and others, such concepts capture the idea that territorial presence or residence over a period of time generates a relationship between the permanent resident and the state. To the extent that judicial interpretations of section 6(1) foreclose discussion of this relationship, they betray the core meaning of citizenship and merit revisiting. The raison d’être of immigration laws is political. They express the boundaries of political community and the scope of citizenship and they police those boundaries. The wisdom and justice of those laws may be perceived as matters for political theory. However, immigration law, constitutional law, and citizenship law do not only act on the already political state; they also reconstitute it with each decision about citizenship and its limits.

NOTES 1. I am grateful to Catherine Dauvergne for providing the opportunity to write this chapter, to the reviewer who helped to situate this chapter in its broader context, and to Sean Rehaag for helpful comments on an earlier draft. 2. For a theory of citizenship as claims-making see Bloemraad (2017). 3. Constitutional law is entrenched, and it is supreme over other kinds of law, including statutes. See The Constitution Act 1982, s. 52. 4. The Nuremberg citizenship laws were a horrifying example of the stakes of this kind of legal demotion. See The Reich Citizenship Law 1935 and the First Regulation to the Reich Citizenship Law 1935. 5. Song 2012 citing Whelan 1983. 6. Dahl 1970 at 60–1, quoted in Song 2012 at 39. See also Abizadeh (2008): ‘democracy is supposed to refer to a set of civil and political rights enjoyed by persons qua members of particular political communities’ [43]. 7. Song 2012 at 40, citing Nässtrom 2007. 8. Song 2012 at 40, citing Rawls 1999. 9. ‘Affected interests’ refers to the idea that ‘anyone whose interests are affected by a decision should have a voice in the making of that decision’. The ‘coercion principle’ means ‘those subject to the coercive power of a state should have an equal say in how that power is exercised’. 10. The boundary question was identified in the 1970s. Michael Walzer wrote about membership as constituting community in 1981, and Bosniak is among the scholars who picked up this thread in the early 2000s.

The problem of boundaries  59 11. The discrete issues discussed included concerns in the North, preferential hiring, restricting land ownership to provincial residents, and eligibility periods for receipt of social services. 12. Black 1989 citing Winner v S.M.T. (Eastern) Ltd. 1951. 13. Divito v Canada (Public Safety and Emergency Preparedness) 2013 at para. 24, citing Laskin 1982 at 89. See also Sharpe and Roach (2009) at 212. 14. Confirming that ‘the scope of “his own country” is broader than the concept “country of his nationality”’. See also: Nystrom v Australia 2007 and Warsame v Canada 2011. 15. But also observing that the HRC did not refer to Nottebohm in the Nystrom and Warsame Communications. 16. Nationality and citizenship are often not equivalents, but the distinction between them is not consequential for this analysis of section 6. For more, see Rubenstein (2000). 17. I leave to one side the cases about section 6(1) and passports (Kamel v Canada 2013, Abdelrazik v Canada 2009, and Almalki v Canada 2017) because they are about the relationship between entering and leaving Canada and the passport. They are, in other words, more procedural than substantive in terms of the content of citizenship. 18. The scheme proposed in Cotroni was subsequently confirmed and refined in United States of America v Kwok 2001 SCC 18; Lake v Canada (Minister of Justice) 2008; and Sriskandarajah v United States of America 2012. 19. See also Dauvergne (2013), Heckman (2017), Kaushal (2020). 20. The Court also supported this position by referring to Kindler v Canada 1991 and to various provisions of the immigration statute. 21. Chiarelli was the subject of two constitutional challenges: Revell v Canada 2019; Moretto v Canada 2019 leave to appeal to SCC refused, 38964 (2 April 2020). I am not examining those cases, despite their salience for long-term permanent residents, because they do not directly implicate section 6(1) or claims to citizenship. Rather, they argue that other constitutional provisions (specifically, sections 2, 7, and 12) should apply to the deportation of permanent residents. 22. The Federal Court of Appeal addressed the argument that deportation might constitute ‘cruel and unusual treatment’ under section 12 of the Charter, but ultimately decided it did not. 23. Quoting then-Secretary of State, Hon. James Hugh Faulkner. 24. Benner v Canada 1997 at para. 30, cited in Taylor 2007 at para. 49. 25. This understanding was first set out by Justice La Forest in Cotroni 1989.

WORKS CITED Abizadeh, A. (2008) ‘Democratic theory and border coercion: No right to unilaterally control your own borders’, Political Theory, 36(1): 37–65. Arendt, H. (1979) The Origins of Totalitarianism, San Diego: Harcourt. (Original work published in 1951.) Benhabib, S. (2004) The Rights of Others: Aliens, Residents, and Citizens, Cambridge: Cambridge University Press. Bernhardt, P. (1987) ‘Mobility rights: Section 6 of the Charter and the Canadian Economic Union’, Queen’s Law Journal, 12(2): 199–238. Berry, E. (2009) ‘The deportation of virtual national offenders: The impact of the ECHR and EU law’, Journal of Immigration, Asylum and Nationality Law, 23(1): 11–23. Blackstone, W. (1979) Commentaries on the Laws of England: A Facsimile of the First Edition of 1765–1769, Chicago: University of Chicago Press. Bloemraad, I. (2017) ‘Theorising the power of citizenship as claims-making’, Journal of Ethnic and Migration Studies, 44(1): 4–26. Bosniak, L. (2000) ‘Citizenship denationalized’, Indiana Journal of Global Legal Studies, 7(2): 447–509. Bosniak, L. (2006) The Citizen and the Alien: Dilemmas of Contemporary Membership, New Jersey: Princeton University Press. Carens, J. (2013) The Ethics of Immigration, New York: Oxford University Press.

60  Research handbook on the law and politics of migration Citizenship and Immigration Canada (2012) ‘Minister Kenney supports the Faster Removal of Foreign Criminals Act’, online: . Dahl, R. (1970) After the Revolution? Authority in a Good Society, New Haven, CT: Yale University Press. Dauvergne, C. (2008) Making People Illegal: What Globalization Means for Migration and Law, New York: Cambridge University Press. Dauvergne, C. (2013) ‘How the Charter has failed non-citizens in Canada: Reviewing thirty years of Supreme Court of Canada jurisprudence’, McGill Law Journal, 58(3): 663–728. Dodek, A. (2018) The Charter Debates: The Special Joint Committee on the Constitution, 1980–81, and the Making of the Canadian Charter of Rights and Freedoms, Toronto: University of Toronto Press. Foster, M. (2009) ‘An “alien” by the barest of threads: The legality of the deportation of long-term residents from Australia’, Melbourne University Law Review, 33(2): 483–541. Galloway, D. (1999) ‘The dilemmas of Canadian citizenship law’, Georgetown Immigration Law Journal, 13: 201–32. Gibney, M.J. (2013) ‘Deportation, crime, and the changing character of membership in the United Kingdom’, in K. Franko Aas and Mary Bosworth (eds.) The Borders of Punishment: Migration, Citizenship, and Social Exclusion, Oxford: Oxford University Press, pp. 218–36. Gibney, M.J., Anderson, B., and Paoletti, E. (2011) ‘Citizenship, deportation and the boundaries of belonging’, Citizenship Studies, 15(5): 547–63. Grey, C. (2016) ‘Thinkable: The Charter and refugee law after Appulonappa and B010’, Supreme Court Law Review, 76(1): 111–42. Hammar, T. (1990) Democracy and the Nation State: Aliens, Denizens, and Citizens in a World of International Migration, Farnham: Ashgate Publishing. Heckman, G. (2017) ‘Revisiting the application of Section 7 of the Charter in immigration and refugee protection’, University of New Brunswick Law Journal, 68: 312–56. Jacobson, D. (1996) Rights Across Borders: Immigration and the Decline of Citizenship, Baltimore: Johns Hopkins University Press. Joppke, C. (2010) Citizenship & Immigration, Cambridge: Polity Press. Kaushal, A. (2016) ‘The migration footprint: Sex equality, competing identities, and the Migration Continuum’, Journal of Law and Equality, 12: 89–126. Kaushal, A. (2020) ‘The constitution in the shadow of the immigration state’, in D. Dyzenhaus, J. Bomhoff, and T. Poole (eds.) The Double Facing Constitution, Cambridge: Cambridge University Press, pp. 277–310. Koessler, M. (1946) ‘“Subject”, “citizen”, “national” and “permanent allegiance”’, Yale Law Journal, 56(1): 58–76. Laskin, J.B. (1982) ‘Mobility Rights under the Charter’, Supreme Court Law Review, 4: 89–106. Loughlin, M. and Walker, N. (eds.) (2017) The Paradox of Constitutionalism: Constituent Power and Constitutional Form, Oxford: Oxford University Press. Macklin, A. (2015) ‘Kick-off contribution’, in A. Macklin and R. Bauböck (eds.) The Return of Banishment: Do the New Denationalisation Policies Weaken Citizenship, Fiesole, IT: European University Institute, online: . Macklin, A. (2018) ‘Is it time to retire Nottebohm?’ AJIL Unbound, 111: 492–7. Miller, D. (1995) On Nationality, Oxford: Oxford University Press. Motomura, H. (2006) Americans in Waiting: The Lost Story of Immigration and Citizenship in the United States, New York: Oxford University Press. Nässtrom, S. (2007) ‘The legitimacy of the people’, Political Theory, 35(5): 624–58. Rawls, J. (1999) A Theory of Justice, Cambridge, MA: Harvard University Press. Rubenstein, K. (2000) ‘International Citizenship: The Future of Nationality in a Globalised World’, Indiana Journal of Global Legal Studies, 7(2): 519–48. Russell, P. (1983) ‘The political purposes of the Canadian Charter’, The Canadian Bar Review, 61(1): 30–54. Saufert, S. (2007) ‘Taylor v. Canada (Minister of Citizenship and Immigration): discrimination, due process, and the origins of citizenship in Canada’, Alberta Law Review, 45(2): 521–36. Shachar, A. (2009) The Birthright Lottery, Cambridge, MA: Harvard University Press.

The problem of boundaries  61 Sharpe, R.J. and Roach, K. (2009) The Charter of Rights and Freedoms, 4th ed., Toronto: Irwin Law. Song, S. (2012) ‘The boundary problem in democratic theory: Why the demos should be bounded by the state’, International Theory, 4(1): 39–68. Song, S. (2016) ‘The significance of territorial presence and the rights of immigrants’, in S. Fine and L. Ypi (eds.) Migration in Political Theory: The Ethics of Movement and Membership, Oxford: Oxford University Press, pp. 226–48. Spiro, P.J. (2007) Beyond Citizenship: American Identity after Globalization, Oxford: Oxford University Press. United Nations Human Rights Committee (1999) CCPR General Comment No. 27: Article 12 (Freedom of Movement), UN Doc CCPR/C/21/Rev.1/Add.9. Walzer, M. (1983) Spheres of Justice: A Defense of Pluralism and Equality, New York: Basic Books. Whelan, F. (1983) ‘Prologue: Democratic theory and the boundary problem’, Nomos, 25: 13–47. Yasmin, S. (1994) Limits of Citizenship, Chicago: University of Chicago Press.

CASE LAW Abdelrazik v Canada 2009 FC 580, [2010] 1 FCR 267. Almalki v Canada 2017 ONSC 3750, 280 ACWS (3d) 738. Benner v Canada [1997] 1 SCR 538, 143 DLR (4th) 577. Black v Law Society of Alberta [1989] 1 SCR 591, 58 DLR (4th) 317. Canada (Minister of Employment and Immigration) v Chiarelli [1992] 1 SCR 711, 90 DLR (4th) 289. Canadian Egg Marketing Agency v Richardson [1998] 3 SCR 157, 166 DLR (4th) 1. Canepa v Canada [1992] 3 FC 270, 93 DLR (4th) 589. Divito v Canada (Public Safety and Emergency Preparedness) 2013 SCC 47, [2013] 3 SCR 157. Doctors for Refugee Care v Canada 2014 FC 651, [2015] 2 FCR 267. Hassouna v Canada 2017 FC 473, [2017] 4 FCR 555. Irshad (Litigation guardian of) v Ontario [2001] 55 O.R. (3d) 43, 197 DLR (4th) 103. Kamel v Canada 2013 FCA 103, 448 NR 217. Kindler v Canada [1991] 2 SCR 779, 84 DLR (4th) 438. Lake v Canada (Minister of Justice) 2008 SCC 23, [2008] 1 SCR 761. Law Society of Upper Canada v Skapinker [1984] 1 SCR 357, 9 DLR (4th) 161. Maslov v Austria [2008] III ECHR 301, No. 1638/03. Moretto v Canada 2019 FCA 261, 213 ACWS (3d) 4. Nottebohm Case (Liechtenstein v Guatemala), Second Phase, [1955] ICJ Rep 4. Nystrom v Australia [2011] 1557/2007, CCPR/C/102/D/1557/2007. Revell v Canada 2019 FCA 262, 311 ACWS (3d) 378. Sriskandarajah v United States of America 2012 SCC 70, [2012] 3 SCR 609. Taylor v Canada 2006 FC 1053, 299 FTR 158. Taylor v Canada 2007 FCA 349, [2008] 3 FCR 324. Toussaint v Canada 2011 FCA 213, [2013] 1 FCR 374. United States of America v Cotroni [1989] 1 SCR 1469, 96 NR 321. United States of America v Kwok 2001 SCC 18, [2001] 1 SCR 532. Van Vlymen v Canada 2004 FC 1054, [2005] 1 FCR 617. Warsame v Canada [2011] 1959/2010, CCPR/C/102/D/1959/2010. Winner v S.M.T. (Eastern) Ltd. [1951] SCR 887, [1951] 4 DLR 529.

PRIMARY LEGAL SOURCES Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982 (c. 11). Canadian Citizenship Act, S.C. 1946 (c.15). Faster Removal of Foreign Criminals Act, S.C. 2013 (c.16).

62  Research handbook on the law and politics of migration First Regulation to the Reich Citizenship Law, 14 November 1935 (Germany). International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171. The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982 (c. 11). The Reich Citizenship Law, 15 September 1935 (Germany).

6. The trilemma of Canadian migrant worker policy: facilitating employer access while protecting the Canadian labour market and addressing migrant worker exploitation Sarah Marsden, Eric Tucker, and Leah F. Vosko1

INTRODUCTION Canada’s use of migrant labour has been subject to increasing attention in recent years. The number of migrant workers2 in Canada continues to accelerate, and has long outpaced the number of permanent economic class migrants admitted to Canada. We use the metaphor of ‘vectors’ – or directional forces/domains – to describe identifiable forces within migrant worker policy that both occupy space and potentially influence policy direction. This approach allows us to differentiate multiple influences and to theorize their relationship dynamically – we do not posit causal relationships here, but the identification of separate ‘vectors’ allows for an understanding of policy influences in which such influences may operate separately, in tandem, or in tension at different times. Scholars and activists have documented rights shortfalls, exploitation, and abuse of migrant workers, but these issues have also been visible to varying degrees in media reports, which form part of what we call the ‘protectivist’ vector shaping migrant worker policy. The influence of this vector is evident in various measures taken by the federal government in the past ten years, during which time it has shifted from disclaiming responsibility for migrant workers’ workplace rights to adopting a standards and enforcement system empowering federal officers to investigate and sanction employers. Alongside the relatively recent focus on the protection of migrant workers is a longstanding preoccupation with the impact of migrant labour on the Canadian labour market, which we call the ‘protectionist’ vector, shaping migrant worker policy. This vector, too, is reflected in media reports, scholarly work, and federal policy concerned with the protection of work opportunities for Canadians, as well as resistance to the potential for wage depression resulting from the availability of migrant labour. Its influence is evident, for example, in the use of labour market tests that must be conducted before authorization is granted to hire a temporary foreign worker. The protectivist and protectionist vectors, however, have to be considered as working simultaneously in tension and tandem with a third influence, which we call the ‘access’ vector. The access vector represents the ways in which migrant worker policy is driven by the variable but ongoing demand of employers in a variety of sectors, including agriculture, construction, and caregiving, for access to migrant labour to meet their labour needs at what they believe is an acceptable cost. In this chapter, we chart the operation of these three vectors as expressed in discourses about migrant workers in media reports and policy documents, and as manifested in legislative, regulatory, and administrative changes to the regulation of migrant work in Canada since 2005, 63

64  Research handbook on the law and politics of migration focusing in particular on the regulation of closed work permits, or what is now known as the ‘Temporary Foreign Worker’ (TFW) programme. In so doing, we seek to illuminate the relationships between public perception of migrant work programmes, labour market conditions, and policy and legislative reform, albeit without attributing strict causation. That is to say, we view media reports as sites that both report and reflect upon government policy and that from time to time amplify the concerns of activists and interest groups, thereby shaping the political environment in which government policy is developed and implemented. Specifically, we argue that from 2005 to 2019, there are four distinct stages through which it is useful to identify the shifts in media and law/policy discourse with regard to migrant workers. In each period, we trace the ebb and flow of the three vectors of migrant worker protectivism, labour market protectionism, and employer access.These vectors coexist, and while they may have an impact on each other, we do not posit a specific relationship between them. Rather, the three vectors vary in force and prevalence depending on the time and context. That said, labour market protectionism tends to be ‘baked in’ as a broadly accepted basis for limiting migration, although its intensity will vary depending on labour market conditions and public perceptions of the economic impact of migration. On the other hand, a policy of providing employer access to migrant labour, and the conditions under which that access should be provided (for example, closed or open work permits3), is rather more contested, as was illustrated when the media interviewed a tearful Sandy Nelson, a server at a restaurant in Saskatchewan, who reported she was losing her long-term job to temporary foreign workers (Leo 2014). Nevertheless, employer demand for access is recurring, although variable across time and sector, and has significant traction in policy debates. Protectivism is a newer, and perhaps more superficial, driver of Canadian policy. Cynically, however, many protectivist gestures could be read as symbolic, intended more to deflect concerns that could lead to restrictions on employer access by, for example, attempting to promote transparency and/or targeting ‘bad apples’ through ensuring that labour market tests are fulfilled than to provide for significant substantive gains vis-à-vis augmented labour protections for workers (Marsden, Tucker, & Vosko 2020). The exploitation of migrant workers in Canada both historically and contemporaneously is extensively documented, including the propagation of unequal conditions on the basis of race, gender, and class (Preibisch & Binford 2007; Bakan & Stasiulis 1997; Sharma 2006; Pratt 2004). Wage theft, poor and unsafe working conditions, extreme hours, and violence and harassment persist in the working lives of many temporary migrant workers (Strauss & McGrath 2017; Nackache & Kinoshita 2010; Lenard & Straehle 2012). Multiple commentators also implicate law and policy in exacerbating the vulnerability of migrant workers (Fudge & McPhail 2009; Strauss & McGrath 2017; Marsden 2018). These accounts often include a direct or implicit critique of the role of migration policy in promoting the interests of employers over those of workers, but few provide a theoretical framework for examining various themes in influences upon or aims of policy choices. Here, we aim to contribute a method by which to do so, as well mapping the specific tensions which these three vectors reflect and engender – hence the notion of the ‘trilemma’ – through an integrated analysis of their operation.

The trilemma of Canadian migrant worker policy  65

MAPPING THE OPERATION OF ACCESS, PROTECTIONISM AND PROTECTIVISM, 2005 TO THE PRESENT Canada has used temporary migrant labour in specific industries since at least the mid-twentieth century, in the case of domestic workers (Tungohan 2012), and 1966, in the case of agricultural workers (Satzewich 1991). In 1973, Canada introduced the first general-purpose migrant labour programme, which continues today as the Temporary Foreign Worker Program (Fudge & McPhail 2009). However, from the outset, employer access to migrant workers has been framed by government as a last resort, with permission only to be granted if employers could satisfy the government that their labour requirements could not be met through the recruitment of Canadian citizens and permanent residents on the terms and conditions on offer. While labour market tests have never been so strict as to require that employers greatly improve the terms and conditions on offer to the domestic labour force before obtaining permission to recruit migrant labour, labour market protection has remained on the policy agenda, although its strength has varied over time. Concern for the protection of migrant workers against labour market exploitation may not have been present at the birth of migrant labour programmes, but it arose early in their development, especially since the protection of the domestic labour market necessarily entailed a fear that exploitative conditions for migrant workers have a detrimental impact on domestic labour market conditions (for example, unemployment as well as labour standards). As well, early on, social justice advocacy groups worked with migrant workers to build public support for protectivist measures, particularly in relation to two of the first groups of migrant workers: seasonal agricultural workers and live-in caregivers (International Ladies’ Garment Workers Union and INTERCEDE 1993; Bakan & Stasiulis 1997). The full history of the access, protectionist, and protectivist vectors is beyond the scope of this chapter. Instead we focus on the period since 2005, during which federal governments, whether Conservative or Liberal, for the most part aggressively expanded the programme’s scope and magnitude (Figure 6.1), reflecting and reinforcing the longstanding primacy of the access vector while at the same time never completely ignoring the protectionist and protectivist demands. The strength of these demands and their impact, however, varies over time. In what follows we identify four distinct periods in the evolution of policy aimed ostensibly at reducing employers’ reliance on the programme (the protectionist aim), as well as some changes designed to protect workers (the protectivist aim) while sustaining ‘legitimate’ employer access to migrant labour. In what follows, we examine policy changes against the background of varying degrees of media attention in which both the protectivist lens and the protectionist lens are evident. We conducted a survey of Canadian media sources from 2005 to 2019, focusing on the national level and three provinces (Alberta, British Columbia, and Ontario). The survey began with a list of the top Canadian major print dailies (by print circulation). From that list, we selected two national-level newspapers (The National Post and The Globe and Mail) and the highest circulation print newspaper in each of the provinces of interest (Vancouver Sun, Calgary Herald, Toronto Star) for analysis. In addition to these print sources, we included two online news outlets – the CBC News website and the Tyee – as well as reports and submissions by non-governmental organizations (largely migrant worker advocacy groups) and by governmental bodies (for example, Auditor General reports). These sources capture a wide range of political perspectives, from the editorially conservative National Post to the more progressive Tyee. From the complete list of sources, we searched for coverage of Canada’s migrant work

66  Research handbook on the law and politics of migration

Note: This number excludes those holding temporary work permits for humanitarian and compassionate reasons. Sources: Citizenship and Immigration Canada (2014) Facts and Figures: Temporary Residents, Tables 3.1 and 3.2; IRCC (2016) Fact and Figures: Temporary Residents, Tables 3.1 and 3.2; IRCC (2018) Annual Report to Parliament on Immigration, [29].

Figure 6.1

Temporary work permit holders for work purposes, 2005–17

programmes in the period under study. Articles, submissions, and government documents were then archived and organized into a timeline of major events, and descriptively coded according to prominent themes; namely, the three vectors of protectionism, protectivism, and access. The timeline of major programme events as reported by media outlets was then, where possible, corroborated by official government documentation. Alongside this undertaking, we consider changing labour market conditions, primarily as reflected in national and regional unemployment levels. While we will consider each of these three vectors in greater detail below, we begin by presenting an overview of our sources, starting with media stories. Figure 6.2 provides a count of media stories that were either protectionist or protectivist. While these counts by no means provide a scientific measure of media attention on these issues, they are suggestive of particular themes and trends in public sentiment, especially viewed against larger policy changes, and provide some background for the qualitative analysis that follows. Figure 6.3 provides national unemployment figures, as well as figures for Alberta, British Columbia, and Ontario. While we do not make the strong claim that public concern over unemployment drives labour market protectionism, we do think that this is a part of the broader context that shapes public opinion toward and government policy regarding the degree to which access is facilitated/constrained. With these three overarching trends in the background, we now turn to the periodization of protectivism, protectionism, and employer access to labour.

The trilemma of Canadian migrant worker policy  67

Figure 6.2

Protective and protectivist stories in selected Canadian media, 2005–19

Expanding the Temporary Foreign Worker Programme and Initial Attention to Occupational Health and Safety Concerns, 2005–late 2008 During this period, the total number of migrant workers (that is, ‘temporary work permit holders for work purposes’) (Figure 6.1) entering Canada annually increased from approximately 150,000 to 250,000 between 2005 and 2008, at which time the number of entries of temporary work permit holders outstripped the number of economic class permanent residents

Figure 6.3

Annual unemployment rates for Canada, Alberta, British Columbia and Ontario, 2005–18

68  Research handbook on the law and politics of migration for the first time, reflecting developments in immigration policy developments flowing from the 2008–9 recession and public concern over unemployment trends arriving in its trail (Vosko 2019). Unemployment was fairly low and stable during this period as well, running at about 6 per cent nationally during these years (and lower in Alberta and BC), until the recession in the fall of 2008 (Figure 6.3). The expansion was driven in part by employer demand and was reflected in multiple media stories, many of which focused on the challenges of meeting the demands for labour in Alberta’s growing oil patch and BC’s housing boom.4 Not surprisingly, Alberta politicians strongly supported this expansion and, with the election of a Conservative government early in 2006 – led by an Albertan, Stephen Harper – these demands found receptive ears (Barnetson & Foster 2014). To help meet this demand, in 2007 the federal government expanded the maximum period in which temporary foreign workers (TFWs) engaged in blue-collar work may work in Canada from one to two years (Cryerman 2007), added 21 new occupational groups to address labour shortages in BC and Alberta, and introduced expedited labour market opinions (LMOs). This period is one in which employer access to migrant workers increased in response to perceived labour needs. Alongside this expansion, both protectivist and protectionist concerns are evident in the media. With respect to protectivism, there is growing public discourse about the abuse of migrant workers, much of which focuses on the documentation of rights shortfalls and exploitation of workers. A number of news articles chronicle TFWs’ experiences with wage theft, poor housing, extortion in the form of recruitment fees, and fear of reprisal in reporting labour standards or human rights violations and/or attempting to unionize. Many of these articles are focused on food services, but the construction industry is also represented, and the need to better regulate the programme in general is also articulated in several articles (Sandborn 2007; Cryderman 2007). In 2007 two Chinese workers employed by a Canadian subsidiary of a Chinese construction company were killed while working on a construction project in the oilsands, an event that attracted a number of press stories as well (Ebner & Harding 2007; Gray 2011). This period also includes news stories that have a more protectionist tone, especially those covering union leaders’ concerns that low-wage migrant work poses a threat in industries and occupations characterized by high rates of unionization. Unions and union federations express the view that ‘labour shortages’ are a myth employers use to pressure governments to permit them to replace unionized workers with non-unionized TFWs. One prominent example is the BC Federation of Labour’s opposition to the use of TFWs in bridge work in the province (Leung 2006). Another is found in media coverage of a dispute between Alberta trade unions and oil patch employers. However, media reports of resistance to programme expansion during this period are limited largely to Alberta and British Columbia. At the same time, a 2008 Angus Reid poll reported that half of Canadians reject the TFW programme, viewing it as a threat to ‘Canadian jobs’ (Keung 2008). Not surprisingly, Barnetson and Foster’s study of Alberta politicians’ discourse found that they regularly defended programme expansion by reassuring their audience that the TFW programme did not threaten Canadian jobs or result in abusive conditions for migrant workers (Barnetson & Foster 2014). While both protectionist and protectivist threads appear in the media during this period, the expansion of the TFW programmes through policies directly responsive to employer demands is more or less untrammelled; perhaps in part due to the context of low unemployment, the access vector dominates here, despite clear critiques of the conditions of work and the use of the TFW programme in general.

The trilemma of Canadian migrant worker policy  69 Addressing Abuses, but Maintaining Access: Late 2008–Early 2012 In the second period, from late 2008 to 2012, the protectivist theme emerges more strongly in the media, featuring more reports about the exploitation of TFWs. This increase began concurrently with the recession of fall 2008 and the sharp uptick in unemployment that followed, peaking in 2009 and then declining very slowly thereafter, except in Alberta, where there was a sharp drop in unemployment in 2011. At the outset of this period there was also a short-lived drop in the number of total temporary migrant workers entering Canada, but expansion resumed in 2010, driven by growth in the International Mobility Program (IMP), while the TFW programme remained relatively flat. The increase in stories of TFW exploitation begins in late 2008 and runs at a steady pace until 2012, at which point there is a sharp increase. Media reports illustrate discontent over migrant workers’ lack of access to employment insurance (federal government unemployment payments), closed work permits, and lower wage rates (Campion 2009; Smith 2009), and also include strong critiques of the devolution of the TFW programme to the provinces (Cryerden 2009). Very few such stories originated in Alberta, where the recession likely had the least impact. There were few protectionist stories of employer misuse of the programme in the media during this period. Notwithstanding the recession, there was a cluster of stories during this period about the continued need for employers to have access to migrant workers, particularly in certain sectors, such as agriculture, and in certain provinces (for example, in Christmas tree operations in Nova Scotia and other farming in PEI). Notably, while the latter also attend to the fact that these are high (10 per cent-plus) unemployment regions and emphasize that the native-born unemployed should be encouraged to take such jobs, this theme is muted in the discussion (Boesveld 2012; Curry & Taber 2012). In terms of policy, 2008–12 marks a period during which the government began to take measures to better regulate the TFW programme, both in regard to programme abuse and to worker exploitation. A major trigger was the Fall 2009 Auditor General Report (Curry 2009). The report accepted the employer access objective of meeting short-term shortages of labour and was critical of both inefficiencies in processing employer applications and inadequate guidance on the application of the programme criteria (Auditor General of Canada 2009, [paras. 2.98-2.101]). However, the Auditor General also addressed shortfalls with the programme’s fulfilment of the Canadians First protectionist goal. According to the Auditor General, the federal government did not have adequate procedures for assessing the genuineness of job offers, including ‘ensuring the employer exists, can afford to pay the established wages, and that there is a real need for the worker’ [para. 2.103]. The report concluded that the ‘lack of systematic assessment of job offers creates significant risks to the integrity of the Temporary Foreign Worker Program since work permits could be issued for employers or jobs that do not exist’ [para. 2.106]. Finally, the report turned to the protective concern that migrant workers were at risk of exploitation, citing concerns about the Live-in Caregiver programme [para 2.109] and the low-skill pilot programme, which had expanded dramatically between its launch in 2002 and 2008. With the exception of the Expedited LMO programme, for which a pilot compliance review had been created, there was no follow-up to verify that employers were complying with the terms and conditions of the approved offer, including wages and the accommodations provided [para. 2.111]. The report concluded that ‘[t]his lack of follow-up

70  Research handbook on the law and politics of migration on job offers can have implications not only for the integrity of the programs but also for the well-being of foreign workers’ [para. 2.112]. The Harper government was responsive to the Auditor’s recommendations and pointed to measures it had already taken to better monitor employer compliance and to explore changes to the regulations that would enhance its capacity to conduct reviews. Here it was referencing proposed regulatory changes that it had begun to develop in 2007–8 and which were published in October, prior to the release of the Auditor General’s report (Government of Canada 2009b). Thus, 2009 marks the beginning of a shift in government policy away from simply better meeting the demand for TFWs toward addressing both programme abuse and TFW exploitation. Proposed amendments to the regulations were published in 2009 that would clarify the process and establish factors to be considered for assessing the genuineness of offers of employment, provide for the suspension of employers found to have abused the programme for up to two years, and establish a four-year limit for migrant workers, followed by at least six years of not working in Canada, with some exceptions (Government of Canada 2009a). The proposed regulations were promulgated in 2010 and came into force on April 1, 2011 (Government of Canada 2010). This regulation established the Employer Compliance Review system and marked a shift toward direct policing by the federal government of the terms of employment offers, with the imposition of penalties for employers found to be in violation. Sceptics, however, were unconvinced that the government was serious about enforcement and characterized the measures as ‘calculated cynicism’ (Ramsaroop & Gutor 2010). Alongside this initial, limited, commitment to protectivism was a protectionist measure introduced later that year, the so-called four-in-four-out rule, which limited some TFWs’ length of stay in Canada.5 Not all programme changes, however, were either protectivist or protectionist. Policy changes in April 2012 aimed to increase employer access to TFWs. These measures allowed employers of TFWs to offer a wage 15 per cent less than the posted wage (provided it also paid that rate to Canadians or permanent residents), and gave some employers access to an accelerated LMO process for higher skilled positions provided they had clean compliance records and consented to participate in a LMO compliance review (Human Resources and Skills Development Canada 2012). Perhaps the government was under pressure from interests out of Alberta, where unemployment dropped more quickly than in the rest of the country. Alberta politician Jason Kenney was serving as federal Minister for Immigration, Citizenship and Multiculturalism. Moreover, there was popular support for the TFW programme in Alberta, as revealed in an Alberta opinion poll conducted in 2013 which found that a majority of Albertans agreed or strongly agreed that TFWs are needed to fill jobs in the Alberta labour market, while only a minority agreed or strongly agreed that TFWs are taking jobs from Albertans (Doerksen 2015). In this period, several provinces also enacted protective legislation aimed specifically at migrant workers. Manitoba was first off the mark, in 2008, with the Worker Recruitment and Protection Act, which requires all employers and recruiters of foreign workers to register with the province and prohibits charging job-finding or placement fees to workers. These rules are backed up by specific enforcement powers to rescind licences, to investigate allegations, and to recover money owing to workers, as well a broadly worded enforcement provision with fines up to $50,000 (WRPA 2008, ss. 6, 11.1, 15.4, 16.1, 19, 20, 28). Ontario followed suit in 2009 with the Employment Protection for Foreign Nationals Act (EPFNA 2009), which includes similar provisions in terms of recruitment and fees, and also prohibits the retention of

The trilemma of Canadian migrant worker policy  71 property, bans reprisals, and creates positive obligations on employers to provide information on workers’ rights (and in their preferred language), with similar investigatory and offence provisions and an extended limitation period for complaints (EPFNA 2009, ss. 7–11, 20, 24, 27). In Alberta, the 2012 Employment Agency Business Licensing Regulation does not state a specific protective aim with regard to migrant workers, but requires employment agencies to obtain licences, prohibits fees to workers, and prohibits the provision of false information about employment, immigration, rights, and living and working conditions in Alberta (EABL Reg 2012, ss. 2, 12, 13, 16).6 This period can be characterized as being the first time, during the period under study, in which the protection of migrant workers was taken seriously in federal policy as well as in specific new legislation in the provinces dealing with migrant workers in particular. Following some media emphasis on protectivism and the exploitation of workers, as well as the Auditor General’s critical attention to employers’ abuse of migrant workers’ wellbeing and the relevant programme, this period ushers in a new policy focus on worker protection in federal policy with the initiation of Employer Compliance Reviews, new conditions for employers, and enforcement powers, albeit with little action to test the efficacy of these in terms of either reducing migrant worker exploitation or reducing programme abuse by employers in terms of the labour market. In this period, the growth of migrant work in general continued unabated, although much of this was attributable to the newly reclassified IMP, in which no labour market test limits migrant worker access to the Canadian labour market and a majority of workers are not subject to closed work permits. During this period employer demand for access to TFWs remained strong and government policy facilitated a steady flow, notwithstanding the introduction of protectivist measures. The drivers of the growth in the IMP are less well understood, but to the extent that it became an alternative pathway to satisfy employer demand, it was unaffected by restrictions motivated by protectivist or protectionist concerns.7 Growing Scandals and Reining in the TFW Programme: May 2012–2015 This period is marked by a strong reaction against the government’s measures earlier in 2012 to facilitate employer access. Worker exploitation stories become more frequent beginning in May 2012 and continue at a fairly steady level thereafter, while programme abuse stories start to increase sharply in the fall of 2012 and skyrocket in 2013, remaining at the same level in 2014 before dropping sharply in 2015 and after. During this period, there were three major national news stories reporting ‘scandals’ in relation to migrant work programmes, namely: 1) the HD Mining scandal in BC in 2012–13 in which a mining firm was criticized for engaging miners from China under the TFW programme as a means to lower labour costs, rather than training young Canadians in mining trades; 2) the Royal Bank of Canada scandal surfacing in 2012 (e.g. McInnes 2012; O’Neill 2012) and surrounding the bank’s use of a transnational recruitment agency to engage 45 employees, leading to the displacement of ‘Canadian workers’ (e.g. Tomlinson 2013; Dobbie 2013); and 3) the investigation of widespread wage theft at Tim Hortons franchises in western Canada (Doerksen 2015).8 In response to widespread critique, on April 26, 2012 the federal government introduced amendments to the Immigration and Refugee Protection Act (IRPA 2001) as part of its 2012 massive budget implementation bill, the Jobs, Growth and Long-Term Prosperity Act (JGLTPA 2012). The bill, which received royal assent on June 29, enhanced the capacity of Citizenship and Immigration Canada and Human Resources and Skills Development Canada

72  Research handbook on the law and politics of migration to verify employer compliance by authorizing the Governor in Council to make regulations respecting the conditions that may or must be imposed on employers and others in relation to foreign nationals, the power to inspect for the purpose of verifying compliance with these conditions, and the consequences of non-compliance with these conditions. As well, in July 2012, the government directed Human Resources and Skills Development Canada officials not to issue positive labour market opinions for employers operating strip clubs, escort services, or massage parlours (Payton 2012). The federal government continued a review of its migrant worker programmes and one year later, in April 2013, announced a suite of reforms, which included an immediate suspension of the programme that permitted employers to pay foreign workers up to 15 per cent less, as well as of accelerated LMOs. As well, it introduced specific measures to address the mining scandal (banning of language requirements) and the Royal Bank of Canada scandal (additional questions for an LMIA (Labour Market Impact Assessment) to ensure that TFWs are not used to facilitate outsourcing), as well as others. Later that year, the government promulgated a regulation implementing these policy changes with both protectionist and protectivist aims (RAIRP Regulations 2013). In the Regulatory Impact Analysis Statement accompanying the regulation, the stated objectives were to: 1. Protect the integrity of the Canadian labour market by providing enhanced authority to verify employer compliance with TFW program requirements (such as efforts to hire Canadians) and to apply consequences for non-compliance; and 2. Protect TFWs from abuse, including physical, sexual, psychological, and financial abuse.

In April 2014, another public scandal over the TFW programme erupted when McDonald’s franchises in BC were accused of giving preferential treatment to migrant workers. The story set off a series of press reports from across the country of similar practices and by the end of the month the government had announced a ban on hiring migrant workers in the food service sector, while it conducted a full review of the TFW programme (Fudge & Tham 2017). The results of that review were published later that year, in a document whose title made clear the shift in government priorities from access to protectionism: ‘Overhauling the Temporary Foreign Worker Program: Putting Canadians First’ (Government of Canada 2015). The document announced a major overhaul of the migrant work programmes, including division into the TFW programme and the IMP, although it must be emphasized that the IMP’s formal introduction did not represent the start of a new programme. Rather, it was more a form of retroactive reclassification of categories, in which, starting in 2014, all data on migrants from 2002 onwards were reclassified to show the difference between those workers now labelled as IMP and those now labelled as TFW, although previously both had been categorized as temporary foreign workers (Chartrand & Vosko 2020, forthcoming). This rebranding likely reflects a response to the sharp increase in critique aimed at the TFW programme, shifting from using the label ‘TFW’ to apply to all temporary workers to using ‘TFW’ to denote only those workers with a closed work permit hired subject to LMIAs. The rebranding responds in particular to concerns about unfettered programme expansion – because if ‘TFW’ now refers only to a certain subset of workers, the ‘TFW’ programme is smaller than it appeared to be when all workers were grouped together under this label. To be clear: there has long been a group of workers holding closed work permits and subject to labour market tests and a group with open permits and/or without direct labour market tests (and with a more secure, albeit

The trilemma of Canadian migrant worker policy  73 temporary, status in Canada), but under the new classification only the former are labelled temporary foreign workers.9 Other changes introduced during this period were directed specifically to the TFW programme, including a switch from high/low skill levels to high/low wage levels to classify job categories, a 10 per cent cap on the percentage of low-wage TFWs an employer could hire, limiting access to low-wage TFWs to areas of high unemployment, and limiting the duration of stays. Additionally, the government announced reforms to the caregiver programme at the end of October 2014. The government framed these changes as designed to address concerns about mistreatment and they included ending the live-in requirement, clearing the backlog of applications for permanent residence made by caregivers who had satisfied the work requirement, and new criteria for pathway to permanent status (Government of Canada 2014). During this period, the government also announced that it was greatly increasing its enforcement efforts through: ●● Increasing the number and scope of inspections so that one in four businesses employing temporary foreign workers will be inspected by the TFW program each year. ●● Increasing the number of programme requirements that inspectors can review from 3 to 21. ●● Improving and expanding the TFW Tip Line and creating a new ‘Complaints’ website. ●● Expanding the ability to publicly blacklist employers who have been suspended and are under investigation, as well as those who have had an LMIA revoked and are banned from using the programme. ●● Additional funding for the Canada Border Services Agency to allow for an increase in the number of criminal investigations. ●● Improving information sharing among departments and agencies involved in the oversight of the TFW programme, including provincial and territorial governments. ●● Introducing significant monetary fines of up to $100,000 following adoption of new legislative authorities included in the Budget Implementation Act (Bill C-31). Despite these regulatory changes and the public announcements about them, the government did not implement the inspection programme right away. This was reported in the Globe and Mail in February 2015. According to the (then) Minister of Citizenship and Immigration, Jason Kenney, the reason was that the department ‘has not yet encountered a situation with an employer that met the criteria for an on-site inspection’ (Curry 2015). With an election scheduled for later that year, the government was on the defensive and on June 12, 2015 it announced that it was promulgating regulations, pursuant to the authority contained in Bill C-31, to create a system of administrative monetary penalties up to $100,000 for employers who violated the TFW programme and to publish the names of employers who were penalized. The regulation was set to come into force on December 1, 2015, after the federal election scheduled for October 19 of the same year, in which a Liberal majority government was elected (RAIRP Regulations 2015). This period can be characterized as one in which public scandals focused attention on employer abuses that violated the foundational ideological defence of migrant worker programmes as last resort measures. Facing an election in 2015, the Conservative government that had overseen a massive expansion of migrant work adopted measures that promised to prevent employer abuses and to address ongoing public concern over exploitation, perhaps in order to maintain political support both to stay in office and for the long-term viability of maintaining employer access to migrant workers despite some limits on access. Protectivism and protec-

74  Research handbook on the law and politics of migration tionism were both given substance through policy changes mandating conditions to be met by employers, and consequences for failing to meet these conditions, although implementation was delayed. This period also saw some policies limiting employer access to migrant labour by way of removing wage lowering and restricting employment of TFWs in certain sectors. The number of workers in the TFW programme dropped in 2014, and then again in 2015. However, perhaps not incidentally, the driver of the growth in migrant workers was the IMP, where protectionist measures, such as a labour market test, did not apply.10 Scaling Back the TFW Programme but not Temporary Migrant Work, 2016–Present Following the coming into force of the amendments, the federal inspection regime became operational under the new Liberal government. Despite the large-scale policy changes described above, the number of migrant workers entering Canada continued to increase; as discussed in detail below, during this period there was a significant expansion of inspection policy, albeit with limited effectiveness. However, as in previous years, the growth was driven by migrant workers entering under the IMP, while the number entering under the TFW programme remained flat. Yet within the TFW programme the number of agricultural workers increased steadily, reflecting the strong ongoing demand for seasonal agricultural workers and the power of the agricultural lobby (Vosko 2019; Burt & Meyer-Robinson 2016). Overall, media reports regarding employer abuse of the programme declined sharply – arguably the result of several factors. First, compared to the preceding period, no major scandals came to light. Second, unemployment in Canada, with the exception of Alberta, continued to decline; in Alberta it sharply increased in 2015 and 2016, but subsequently subsided. Third, the TFW programme was increasingly dominated by agricultural workers, who are rarely viewed as ‘taking’ Canadian jobs, and one can speculate that this explains the reduced focus on programme abuse. Fourth, because there is no labour market test for IMP workers, because the programme itself is so heterogenous, and because neither the language of ‘temporary foreign work’ nor the ‘Canadians first’ ideology are directed against this programme, its growth does not attract much media attention. Finally, the fact that the government has instituted better procedures for verifying employer applications for LMIAs and established an inspection system for monitoring abuse may have mollified public concerns in this regard. The prevalent theme of media stories after 2015 shifts from protectionism to protectivism – focusing on the abuse of migrant workers by their employers and recruitment agents (Curry 2016; Keung 2017).11 Migrant agricultural workers received the most attention in this regard, including their exploitation in the emerging medical marijuana industry (Grisdale 2016). Furthermore, the newly elected Liberal government decided early in its mandate to conduct yet another review of the TFW programme and in March 2016 the House of Commons Standing Committee on Human Resources (HUMA) moved to begin a study, which it completed that fall. The HUMA report was partially responsive to employer concerns expressed to it about access, recommending more efficient LMIA processing, including a Trusted Employer Program for employers who have demonstrated their trustworthiness in the TFW programme, a modification of worker streams to better match labour market (employer) demand, more flexibility regarding the requirement for employers to transition away from TFWs for high-wage workers, loosening the caps on low-wage workers, and the provision of multiple-entry work

The trilemma of Canadian migrant worker policy  75 permits for seasonal migrant workers. However, the report also responded to protectivist concerns, including the following recommendations: ●● a better policy to prevent the use of temporary foreign workers to fill permanent labour shortages; ●● immediate steps to remove the requirement for employer-specific work permits; ●● develop a policy to create pathways to permanent residency for migrant workers who have integrated into Canadian society and are filling a permanent labour need; and ●● improvements to employer monitoring and compliance regimes, including information sharing with provinces and the establishment of a dispute resolution mechanism for migrant workers. (HUMA Committee 2016, [35–39]) In response, the Liberal government announced on December 13, 2016 that it was working to strengthen recruitment requirements for low-wage positions to: protect opportunities for Canadians under-represented in the labour market (youth, persons with disabilities, Indigenous Canadians, newcomers); eliminate the four-year rule; extend exemptions from the cap for seasonal industries; and develop pathways for permanent residence (Hajdu & Hussen 2016). A fuller response was provided on April 10, 2017, in its ‘path forward plan’, which sounded access, protectionist, and protectivist notes. With regard to access, the government announced a pilot Global Talent Stream to better support access to highly skilled migrant workers. As well, it announced that it would eliminate the LMIA processing fee for all families seeking foreign caregivers for persons with high medical needs, and for families with less than $150,000 in annual income seeking child care. In response to protectionist pressures, the government promised to improve its labour market information system to better assess employer claims regarding labour market shortages, while also fostering more employment opportunities for Canadians, especially those in under-represented groups. It also promised to strengthen the protectivist side of the triangle by adopting a more strategic approach to enforcement; prioritizing sectors that rely on the most vulnerable workers, including primary agriculture and caregivers; and enhancing information sharing with provinces and territories. Simultaneously, it promised to continue its efforts to facilitate pathways to permanent residency. Finally, it also promised a multi-stakeholder review of the TFW programme’s primary agricultural streams (Government of Canada 2017a). The results of that consultation were published early in 2019. For the most part, the report simply raised issues related to access (such as an overly narrow definition of ‘primary agriculture’ and confusing application procedures) and the need for greater protection (such as housing standards and inspections, calculation of prevailing wage, open work permits, and pathway to permanent residency), which the government promised to consider in its ongoing efforts to modernize the primary agricultural stream. However, the report also took the opportunity to publicize the efforts it had made to address protectivist concerns since the 2017 ‘path forward’ plan, perhaps with an eye to the continuing flow of stories about the rights shortfalls being experienced by migrant agricultural workers. The list included: ●● strengthening employer inspections, increasing on-site inspections, introducing unannounced inspections, and focusing compliance efforts where workers are at the highest risk; ●● working with migrant worker support organizations to inform workers of their rights, and with employers to clarify their responsibilities;

76  Research handbook on the law and politics of migration ●● in October 2018, launching a Migrant Worker Support Network pilot in BC to provide better information to workers and employers to support workers dealing with potential mistreatment or abuse; ●● in Spring and Summer 2018, cross-Canada stakeholder consultations on worker protections took place to better understand workers’ needs and concerns. (Government of Canada 2019b) Yet, despite the government’s highlighting of its protectivist measures, in other research we have concluded that the goal of worker protection is unlikely to be well met under the recent expansion of the employer inspection regime. Our 2019 study of the federal inspection programme found that while the number of on-site inspections has indeed increased, there are serious flaws in its design that limit its ability to identify employers who violate applicable labour laws or to hold employers to a proactive duty to take reasonable measures to prevent workplace abuse – two of the principal obligations imposed by the inspection regime. We also found that the enforcement regime adopts an extreme compliance model, so that employers are rarely punished when violations are detected. In fact, the most common reason for employers to be held to account is for failing to cooperate with the inspectors (Marsden, Tucker, & Vosko 2020). If increased enforcement is not providing the answer to migrant worker exploitation, and press coverage of that exploitation continues to embarrass government, it may lead government to consider modest reforms to address the structures of vulnerability that put migrant workers at greater risk of exploitation (Strauss 2014). This shift can be seen in some measures taken in the summer of 2019. For example, the government announced it would provide open work permits for migrant workers at risk of abuse (Government of Canada 2019c), a measure that arguably responded to an investigative report in the Globe and Mail in April 2019 documenting labour trafficking in Canada (Tomlinson 2019). As well, the government announced the Agri-Food Immigration Pilot, which would provide a pathway to permanent residency and ultimately citizenship for some agricultural workers engaged in non-seasonal work, such as mushroom production and meat processing, a measure that would benefit both the workers involved and their employers with ongoing labour market needs (Government of Canada 2017b). Finally, in June 2019, the federal government announced it was launching two new pilots, the Home Child Care Provider and the Home Support Workers, to replace the previous caregiving programmes that had been reformed in 2014. Under these new programmes, qualified workers enter Canada with sectoral permits that permit them to leave abusive situations, have family members accompany them and obtain open work and study permits, and be provided with a direct route to permanent residence. The measure goes a long way towards making caregivers economic immigrants rather than migrants. LMIAs will no longer be required, but workers in the programme must have an offer of employment and must meet the standard criteria for economic immigration. Moreover, the number of workers in each of these categories will be capped at 2,750 annually (Government of Canada 2019a; CIC News 2019). In sum, in the most recent period, there has arguably been a shift in how government is negotiating the policy trilemma of addressing often competing demands for access, protectionism and protectivism. Employer demand for access remains strong, particularly in sectors such as agriculture, where there remains an inability to attract permanent residents and citizens under the terms and conditions on offer and the government has continued to be responsive.

The trilemma of Canadian migrant worker policy  77 Moreover, the decline in media stories about employer abuse of the programme has lessened the pressure on government to make Canadians First a major focus of its efforts. On the other hand, stories of exploitation recur with regularity, notwithstanding the implementation of the inspection regime – leading a Liberal government that seeks to be more sensitive to these concerns to put more emphasis on addressing protectivist concerns by finally attending to the root causes of migrant worker vulnerability, even if only in a modest way.

CONCLUSION This chapter has sought to demonstrate that migrant worker programmes and policy in Canada are driven by three vectors – access, protectionism, and protectivism – but their relative strength and influence vary over time. Employer demand for access to migrant workers is uneven by industry, geography, and labour market conditions. Through examining the shifts in protectionism, protectivism, and access, the latter appears predominant as an underlying feature, although it is rarely made explicit as a policy aim and is limited through protectionism. While governments are generally sympathetic to employers’ demands for access to migrant labour, they are also concerned about protecting the Canadian labour market for Canadians, which acts as a check on employer demand. The idea of labour market protection is a bedrock principle that governments of all stripes embrace, used even by the most employer-supportive Conservative governments – such as the Harper government in power in 2014–15, which scaled back employer access in response to public exposés of employer abuse and criticism from other parties that government officials were mismanaging migrant worker programmes. Labour market protectionism means that employers do not have unfettered access to migrant labour, although – as seen in the growth of the IMP and the increasing concentration of agricultural workers as a subset of TFWs (in which labour market tests are not required) under the agricultural stream in particular (Vosko 2019) – it may be that this vector is becoming less important, and further research is needed on role of the IMP in policy and in terms of sectors and working conditions. Protectivism, on the other hand, is not a bedrock principle of Canadian public policy any more than is protective employment law generally. Exploitation stories are, however, deeply embarrassing for governments, especially when the rights shortfalls experienced by migrant workers are understood as providing incentives for employers to prefer migrants to Canadian workers or to result in downward pressure on broader labour market conditions in the Canadian labour market. Rather than opposing the interests of migrant and Canadian workers, as might be the case for the politics of protectionism, the politics of protectivism can generate solidarity since both groups are potentially harmed by migrant worker exploitation, albeit to very different degrees (Basok & López-Sala 2016).12 Even for governments not known for being generally sympathetic to protective labour and employment laws, migrant worker exploitation stories also create the public perception that employer access is difficult to sustain, leading governments to respond in a protectivist fashion while nevertheless retaining access as a bedrock of policy. Indeed, in Canada’s recent trajectory, we saw a Conservative government create the regulatory infrastructure for a federal inspection programme, even though it became operational only after a further round of publicity about the shortfalls of migrant worker programmes. At the same time, as we know from research on the enforcement of protective employment law generally, governments are

78  Research handbook on the law and politics of migration generally extremely reluctant to vigorously enforce the law and instead opt for compliance approaches that fail to substantively address rights shortfalls, although they may make such shortfalls less visible to the public (Tucker 1991; Vosko & Closing the Enforcement Gap Research Group 2020).13 In effect, the gesture of enforcement may placate public concern over rights while having little impact on workers’ substantive conditions, while employers’ access to their labour remains unaffected.

NOTES 1. The authors would like to thank Keelin Griffin for her outstanding research assistance with this project. Authors are listed in alphabetical order to reflect equal contribution. 2. In this chapter, we use the term migrant workers to refer to people holding temporary work permits for work purposes under Canada’s two migrant worker programmes – the temporary foreign worker programme and the international mobility programme. 3. Closed work permits limit the worker to one employer, one location, and one position; workers cannot circulate in the labour market or deviate from the terms of their work permit without obtaining a new work permit, often by way of labour market approval. Open work permits do not have these limits, and allow workers to freely circulate in the labour market. 4. This total number represents workers in both the Temporary Foreign Worker (TFW) and the International Mobility Program (IMP) streams. The increase in TFWs is driven directly by employer demand, as all are hired pursuant to employer request and employer application for a labour market test by way of the Labour Market Impact Assessment (LMIA) process. IMPs hold multiple types of work permits: some require a job offer and can be linked to employer demand; some are open, based on public policy or international exchange. There is no direct causal relationship between the number of open work permits and employer demand, although the number of open work permits may be affected by employer demand indirectly (for example, through open work permits granted to spouses of certain TFWs) and open work permitholders may, in practice, meet employer demand. There is a paucity of federal data available to describe the sectors and occupations of IMP workers, as well as a need for academic research into their conditions of work, but the structural issues affecting these workers are different from TFWs at least insofar as two thirds of IMPs have the ability to circulate freely in the labour market (for an analysis of source country considering racialized and colonial dynamics behind the IMP and the TFW programme and a detailed analysis of the subcategories of the latter, see Chartrand and Vosko (2020)). 5. Formally know as the ‘cumulative duration’ rule, this limited the number of consecutive years in which many temporary foreign workers could work in Canada to four, after which they were required to leave Canada for at least four years. See Human Resources and Social Development Canada (2011), ‘Backgrounder: four-year limit for foreign nationals working in Canada’, online: www​.canada​.ca/​en/​immigration​-refugees/​citizenship/​news/​archives/​backgrounders​-2011/​four​-year​ -limit​-foreign​-nationals​-working​-canada​-html. 6. Finally – and which did not occur in this time period – in British Columbia, the Temporary Foreign Worker Protection Act, which came into force in 2019, requires recruiters to have licences, requires all employers of foreign workers to be registered, and prohibits employers and recruiters from making false statements, withholding property, and threatening deportation. It also prohibits reprisal. By way of enforcement, it empowers officers to enter and inspect workplaces, seize assets, order repayment of unlawful fees, and levy fines against employers (Temporary Foreign Worker Protection Act, SBC 2018 c 45, ss 3, 10, 20, 32, 35, 38, 41, 46, 55). 7. For details on the rise of the IMP and further discussion of the potential drivers behind the growth of the IMP, see Chartrand and Vosko (2020). 8. For measures of high levels of public concern derived from Google searches and social media activity, see Doerksen (2015). 9. In 2017, fully 33 per cent of IMP work permit holders held some kind of ‘closed’ permit (Government of Canada 2018). Closed permits under IMP may include restrictions, resembling

The trilemma of Canadian migrant worker policy  79

10. 11. 12. 13.

those issued under the TFWP, on the employer, type of work or occupation, location of work, and times and periods of employment. Prior to 2014, the TFWP and the IMP were neither conceived nor reported as separate entities. Both components were grouped under the TFWP. Considered in retrospect, together with an analysis of retroactively reclassified data, the formal split between the two programmes (or, more accurately, sets of programmes) reveals the distinct motivations for the programmes, which took shape differently in the post-2002 period. During this time the TFWP contracted and narrowed to focus on agriculture and the IMP grew such that subprogrammes promoting youth mobility, post-graduate employment, and NAFTA mobility reached unprecedented heights. While it has not been subject to the same level of attention in terms of labour market protectionism, in 2015 the Liberal government announced that the next year it would introduce quotas under an expanding subprogramme of the IMP – namely, International Experience Canada, Canada’s equivalent of working holiday programmes for young people from abroad under the age of 35 – due to the risk of exacerbating youth unemployment domestically. However, based as the subprogramme is on Canada’s reciprocal agreements with 32 countries, it opted to warn partner governments about the planned reductions, indicating that quotas could be minimized by greater reciprocity, that is, if partners take action to accept more young Canadians. The number of migrant workers in the IMP remained stable between 2013 and 2014, but did decrease in 2015 before rebounding once again. In this period, journalists such as Nicholas Keung (Toronto Star), Alia Dharssi (Calgary Herald), and Bill Curry (Globe and Mail), regularly reported on the exploitation of migrant workers and raised questions about the efficacy of the federal government’s inspection programme. For a discussion of the role of the Canadian union, the United Food and Commercial Workers, advocating for migrant agricultural workers, including permanency, see Basok and López-Sala (2016). This was the case in Ontario for the enforcement of the Ontario Factories Act, one of the province’s first protective employment laws: Tucker (1991). For recent studies of ESA enforcement, see Vosko and Closing the Enforcement Gap Research Group (2020).

WORKS CITED Auditor General of Canada (2009) 2009 Fall Report of the Auditor General of Canada, online: . Bakan, A. and Stasiulis, D. (1997) Not One of the Family: Foreign Domestic Workers in Canada, Toronto: University of Toronto Press. Barnetson, B. and Foster, J. (2014) ‘The political justification of migrant workers in Alberta, Canada’, Journal of International Migration and Integration, 15(2): 349–70. Basok, T. and López-Sala, A. (2016) ‘Rights and restrictions: Temporary agricultural migrants and trade unions’ activism in Canada and Spain’, International Migration & Integration, 17(4): 1271–87. Burt, M. and Meyer-Robinson, R. (2016) Sowing the Seeds of Growth: Temporary Foreign Workers in Agriculture, The Conference Board of Canada. Chartrand, T. and Vosko, L.F. (forthcoming) ‘Canada’s temporary foreign worker and international mobility programs: Charting change and continuity among source countries’, International Migration. CIC News (14 May 2014) ‘Temporary moratorium on certain work permit issuances’, CIC News, online: . CIC News (18 June 2019) ‘Canada’s new caregiver immigration pilots now open to applications’, CIC News, online: . Curry, B. (2015) ‘Power to inspect TFW employers without a warrant hasn’t been used’, The Globe and Mail. Doerksen, C. (2015) ‘The Temporary Foreign Worker Program in Alberta: Exploring key determinants of public opinion’, MA Thesis, Department of Sociology, Alberta: University of Alberta. Fudge, J. and McPhail, F. (2009) ‘The Temporary Foreign Worker Program in Canada: Low skilled workers as an extreme form of flexible labour’, Comparative Labor Law & Policy Journal, 31(1): 5–46.

80  Research handbook on the law and politics of migration Fudge, J. and Tham, J. (2017) ‘Dishing up migrant workers for the Canadian food service Sector: Labor law and the demand for migrant workers’, Comparative Labor Law and Policy Journal, 39(1): 1–27. Government of Canada (2009a) Canada Gazette, Part 1, 143(24). Government of Canada (2009b) Canada Gazette, Part 1, 143(41). Government of Canada (2010) Canada Gazette, Part II, 144(17). Government of Canada (2014) ‘Improving Canada’s caregiver program’, online: . Government of Canada (2015) Overhauling the Temporary Foreign Worker Program: Putting Canadians First, ESDC, Cat. No. WP-191-06-14E. Government of Canada (2017a) ‘The path forward plan for the Temporary Foreign Worker Program and the International Mobility Program’, online: . Government of Canada (2017b) ‘Agri-Food immigration pilot’, online: . Government of Canada (2018) Canada Gazette Part I, 152(50), Regulatory Impact Assessment, online: . Government of Canada (2019a) ‘Canada caring for caregivers’, online: . Government of Canada (2019b) ‘What we heard: Primary agriculture review’, online: . Government of Canada (2019c) ‘Open work permits for vulnerable workers’, online: . Hajdu, P. and Hussen, A. (2016) ‘Government response to Report 4 – Temporary Foreign Workers Program’, online: . HUMA Committee (2016) ‘Report 4 – Temporary Foreign Worker Program’, online: . Human Resources and Skills Development Canada. (2012) ‘Temporary Foreign Worker Program, accelerated labour market opinion fact sheet’, online: . International Ladies’ Garment Workers Union & INTERCEDE (1993) Meeting the Needs of Vulnerable Workers: Proposals for Improved Employment Legislation and Access to Collective Bargaining for Domestic Workers and Industrial Homeworkers, Toronto: International Ladies’ Garment Workers Union and INTERCEDE. Keung, N. (2008) ‘Support for Foreign Worker program waning’, The Toronto Star, online: . Lenard, P.T. and Straehle, C. (eds) (2012) Legislated Inequality: Temporary Labour Migration in Canada, Montreal: McGill-Queen’s University Press. Leo, G. (2014) ‘Waitresses in Saskatchewan lose jobs to foreign workers’, CBC News, online: . Marsden, S. (2018) Enforcing Exclusion: Precarious Migrants and the Law in Canada, Vancouver: UBC Press. Marsden, S., Tucker, E., and Vosko, L. (2020) Federal Enforcement of Migrant Workers’ Labour Rights in Canada: A Research Report, online: . Nakache, D. and Kinoshita, P. (2010) The Canadian Temporary Foreign Worker Program: Do Short-Term Economic Needs Prevail over Human Rights Concerns? IRPP Study No 5, Montreal: Institute for Research on Public Policy. Payton, L. (2012) ‘Exotic dancer job no longer eligible for foreign workers’, CBC News, online: . Pratt, G. (2004) Working Feminism, Philadelphia: Temple University Press. Preibisch, K. and Binford, L. (2007) ‘Interrogating racialized global labour supply: An exploration of the racial/national replacement of foreign agricultural workers in Canada’, The Canadian Review of Sociology and Anthropology, 44(1): 5–36.

The trilemma of Canadian migrant worker policy  81 Satzewich, V. (1991) Racism and the Incorporation of Foreign Labour: Farm Labour Migration to Canada since 1945, London: Routledge. Sharma, N. (2006) Home Economics: Nationalism and the Making of ‘Migrant Workers’ in Canada, Toronto: University of Toronto Press. Strauss, K. (2014) ‘Temporary foreign workers need more rights, not better enforcement of flawed policy’, Canadian Centre for Policy Alternatives, online: . Strauss, K. and McGrath, S. (2017) ‘Temporary migration, precarious employment and unfree labour relations: Exploring the “continuum of exploitation” in Canada’s Temporary Foreign Worker Program’, Geoforum, 78: 199–208. Tomlinson, K. (2019) ‘False promises: Foreign workers are falling prey to a sprawling web of labour trafficking in Canada’, The Globe and Mail, online: . Tucker, E. (1991) Administering Danger in the Workplace, Toronto: University of Toronto Press. Tungohan, E. (2012) ‘Debunking notions of migrant “victimhood”: A critical assessment of temporary labour migration programs and Filipina migrant activism in Canada’, in R. Sintos Coloma, B. McElhinny, E. Tungohan, J.P.C. Catungal, and L.M. Davidson (eds.) Filipinos in Canada: Disturbing Invisibility, Toronto: University of Toronto Press. Vosko, L.F. (2019) Disrupting Deportability: Transnational Workers Organize, Ithaca: ILR Press. Vosko, L.F. and The Closing the Gap Research Group (2020) Closing the Employment Standards Enforcement Gap: Improving Protections for People in Precarious Jobs.

PRIMARY LEGAL SOURCES Employment Agency Business Licensing Regulation, Alta Reg 45/2012. Employment Protection for Foreign Nationals Act, S.O. 2009 (c. 32). Jobs, Growth and Long-term Prosperity Act, S.C. 2012 (c. 19). Regulations Amending the Immigration and Refugee Protection Regulations, (2013) SOR/2013-245 (RAIRP Regulations 2013). Regulations Amending the Immigration and Refugee Protection Regulations, (2015) SOR/2015 144 (RAIRP Regulations 2015). Temporary Foreign Worker Protection Act, S.B.C. 2018 (c. 45). The Worker Recruitment and Protection Act, C.C.S.M. 2009 (c. W197).

PART II INSTITUTIONS AND THEIR EVOLUTION

7. Immigration enforcement: why does it matter who is in charge? Karine Côté-Boucher and Mireille Paquet

INTRODUCTION Immigration law is enforced and made material by officers of the state. If private actors have become increasingly involved in such matters, the power to detain, deport, and deliver biometric visas and work permits remains within the purview of the state. This reality demonstrates the importance of considering who the enforcers are, how they conduct themselves, and the factors that shape their daily activities. More than anything, answers to these questions help those studying the state to understand how its power is wielded and, especially, how this wielding unfolds. They also help us to understand what needs to change in those institutions beyond the law in order to reform immigration enforcement as it is currently practised. In the context of the growing criminalization and securitization of immigration, a full understanding of enforcement is especially crucial. Current works concerned with the criminalization of border and immigration enforcement often take a legal or socio-legal approach. Yet, immigration enforcement is not simply determined by the law; social, organizational, and cultural factors shape how decisions are made and how policies are implemented. These factors, in turn, have considerable impact on enforcement. They affect the identification of problems by the state and political decisions about resource allocation. They have a differential impact on who is allowed to come into the country and under which conditions. More crudely, they strongly determine whether and how immigration is increasingly managed through the lenses of crime and security. In this chapter, we examine how bureaucratic structures and organizational cultures affect immigration criminalization, with a specific focus on enforcement. We show that in Canada, beyond the law, organizational variables are the foundations that influence enforcement practices. As such, we propose that it is crucial to ask: who is in charge of immigration enforcement? The goal of such a question is not only to trace enabling authorities, but also to better understand the forces that determine their interpretation of the law, and their implementation of programmes on a daily basis. To illustrate this argument, this chapter considers and contrasts the two agencies in charge of immigration enforcement in Canada: the Canada Border Service Agency (CBSA) and Immigration, Refugee and Citizenship Canada (IRCC). This comparison is especially fruitful since both agencies derive powers from and apply parts of Canada’s Immigration and Refugee Protection Act (IRPA, 2001). This common legal enablement makes more visible the impacts of bureaucratic and organizational structures on criminalization. Our chapter considers the division of immigration enforcement labour in Canada. IRCC is an immigration department. It is tasked with visa and work permit delivery. As such, it grants but also denies documentation required for entry into the country for a range of persons, from workers and tourists to family members of Canada’s citizens and permanent residents. 83

84  Research handbook on the law and politics of migration In contrast, the CBSA is a security organization, with a joint trade facilitation mandate. Its immigration enforcement powers loom large, from denial of entry and apprehension, to detention and deportation. Its intelligence-gathering and analysis activities impact a wide range of its activities, from access to refugee determination to customs risk management. But, most importantly, while IRCC employees are civil servants in search of a career within the federal service, CBSA employees are more likely to envision a career in intelligence, enforcement, and security. In line with Canadian scholarship on the topic, we show that this division of labour matters because CBSA’s organizational features give the Agency a larger enforcement capacity, which in turn feeds into a distinct organizational culture associated with security and policing. Thus, as suggested by Atak and colleagues (2019; 2018), this division of labour reinforces the criminalization of immigration in Canada.

ORGANIZATIONS AND CULTURES OF ENFORCEMENT Immigration enforcement refers to the application and the execution of immigration laws and related regulations. A growing trend in immigration enforcement has been the spreading of responsibilities to non-state actors (for example, through remote control), to local governments, and to non-immigration-related government agencies (Guiraudon & Lahav 2000; Hamidi & Paquet 2019). Yet, this trend by no means coincides with a hollowing of classical forms of enforcement – quite the opposite. States remain those who wield the power to decide upon entry into a country and upon whether and how citizenship may be attributed. Further, the majority of enforcement actors are public servants who correspond to classical definitions of street-level bureaucrats, that is, ‘[p]ublic service workers who interact directly with citizens in the course of their job, and who have substantial discretion in the execution of their work’ (Lipsky 2010, [3]). Street-level bureaucrats thus include classical enforcement officers – police officers, border agents, or prison staff – as well as any bureaucrat who delivers services to a population. Studies on immigration law enforcement and immigration policy implementation have analysed the individual and collective determinants of the use of discretion by these bureaucrats and their changing consequences upon enforcement, particularly when it comes to abusing such discretion (Weber 2003). Therefore, understanding how their discretionary sphere of autonomy is not only limited by law but also shaped by organizational and occupational determinants provides us with useful conceptual tools to examine the blurring of administrative and criminal law in immigration enforcement (Stumpf 2006; Aliverti 2014). Indeed, we have learned from these studies that immigration enforcement is a normative domain with values and moral worldviews of its own (Vega 2018), in which pride in one’s role in protecting borders, as well as immigration systems, against fraud plays a key role (Gilboy 1991). These values thus speak to how frontline immigration bureaucrats justify their role through security and crime-fighting narratives. They also convey these bureaucrats’ conviction that migrants have few rights, are scarcely aware of these rights, or believe themselves to be without rights. In such a moral economy, the law can even become seen as presenting an obstacle to the orderly management of immigration (Spire 2008) or as a framework from which to justify one’s ‘creative’, even illegal, use of discretion (van der Woude & Brouwer 2017). Accordingly, there are debates as to whether the classifications and assumptions that preside over the discretionary assessment of migrants pay much attention to legal regulations.

Immigration enforcement: why does it matter who is in charge?  85 Some consider how such assumptions respond not so much to legal categories as to racialized anxieties about risk and threat (Pratt 2010; Pratt & Thompson 2008). Others consider that the everyday uses and abuses of discretion respond to deeply entrenched organizational and administrative features which, if framed by the law, have more to do with administrative logics and constraints that pertain to immigration bureaucracies – such as blame avoidance and efficiency demands (Infantino 2016; Satzewich 2014; Spire 2008). No matter our position in these debates, these studies convey how the values shaping the organizational practice and occupational cultures of immigration enforcement legitimate the problematic aspects of this work and provide the moral foundation for criminalizing migrants (Ugelvik 2016). Thus, even in a context of criminalization, enforcement starts in the work of public organizations and bureaucracies. We propose that structural, cultural, and social forces at play in these organizations should be added to the analytical toolkit of immigration enforcement scholars interested in the work of street-level bureaucrats. To do so, this section introduces concepts from public administration, as well as from the sociology of organizations and that of policing, that can contribute to better understanding the extra-legal foundations of enforcement.

PUBLIC ORGANIZATIONS AND BUREAUCRACIES While the law is an important starting point of enforcement, a similarly potent foundation is the public organizations tasked with enforcement. Organizations are ‘normative structure[s] composed of rules and roles specifying, more or less clearly, who is expected to do what, and how’ (Egeberg 2012, [157]). In the case of immigration, enforcement is conducted by bureaucratic organizations, in the classical sense of the term: a formal organization with a legally defined mandate; with a hierarchical structure that divides tasks, power, and responsibilities; and with tenured employees selected and promoted on the basis of knowledge, expertise, and performance (Weber 1978). As organizations, state bureaucracies represent relatively stable structures composed of actors and their interests, resources, and routine and rules (Mahoney & Thelen 2010; March & Olsen 1989). The stability of these organizations represents a force when considered from the standpoint of the political process as a whole. Yet, this external stability is not replicated internally. Indeed, as with any organization, bureaucracies are fraught with conflicts, tensions, and power struggles (Carpenter 2001). This is particularly true of security and policing organizations. Security professionals struggle over which organization should designate threats (such as organized crime, terrorism, irregular migration) in bids to get the resources to tackle such politically designated priorities (Bigo 2002). These conflicts operate in conjunction with the day-to-day operations of the department, the feedback effects of policies and decisions, and the implementation challenges they face. As a result of this internal dynamism over time, departments as organizations develop preferences and ideas about their mission and the best policy options to pursue. In the case of immigration, four dimensions are worth considering when describing a bureaucratic structure. First, the size and demographic make-up of the organization provides important descriptive information on the enforcers but also on the degree of complexity of the bureaucratic structure. Second, the official mission of the organization and how it has changed over time is worth investigating because it provides information on the core activities of a bureaucracy. While this mission will be interpreted by enforcement agents, it nonetheless proves useful as it may act as a resource inside and outside of the bureaucracy. Official

86  Research handbook on the law and politics of migration missions are also considerable markers of an agency’s trajectory and evolution, which in turn contributes to organizational culture and capacity. A third dimension, the objective capacities of an organization – to be explored through the enabling acts and regulations as well as through its operating budget – provides cues on the standing of a given bureaucracy and the basis to explore the working conditions of enforcers. A final and fourth dimension to consider is the type of organization and its structure. Whether the agency is specialized or not, how activities are distributed geographically, how the hierarchy is structured, and how tasks are allocated within the organization all matter tremendously for enforcement practices. While these dimensions are mainly descriptive, they remain important to understand the context in which the social and cultural dynamics of an organization unfold. They also matter because they make it possible to capture considerable variations in the organization of immigration enforcement, both across and within countries.

OCCUPATIONAL CULTURES While agency identity and preferences remain hard to identify, bureaucrats as a collective body offer a good starting point to capture these organizational variables. Public administration scholars engaged with organizational theory have demonstrated that bureaucrats develop identities and preferences through their position within (occupational culture) and in relation with the agency that employs them (organizational culture). As such, the organizational structure of bureaucracies provides important information to understand enforcers’ institutional preferences, worldviews, and capacities. In particular, the sociology of organizations and occupations, and its application to the domain of policing provides us with further conceptual tools to make sense of the role played by such factors in immigration enforcement. As a group of collective understandings that offer specific viewpoints on elements such as a mandate, clientele, and colleagues, occupational culture interacts with practice in ways that shape the work done in these organizations. Since they are task-oriented and offer situational principles of conduct, occupational cultures bring us closer to day-to-day life within organizations (Manning 1989). The notion helps explain how a ‘corps de métier’ (for example, border services officers, police, intelligence officers, frontline visa officers) can over the years develop specific solutions to issues and problems its members commonly encounter. These solutions may be replaced by new ones if they cease to be seen as providing swift and useful resolution to problems. As such, they ‘only endure as values are transmitted from one generation to the next’ (Van Maanen & Barley 1984; see also Côté-Boucher 2018). Occupational culture also gives shape to career patterns. For instance, some occupations provide paths to vertical careers that require gaining experience in different positions while climbing the organizational ladder, while other occupations, such as policing, nursing, or firefighting, remain remarkably stable. Further, occupational cultures are shaped by inter-organizational dynamics, internal stratification, and inner competition patterns where networks of power segments organizations, as well as the divisions of labour and distributions of prestige and loyalties within them (Manning 2007). This is illustrated in security organizations, where the need to know and constraints over information sharing interact with the status that comes with being granted access to information through security clearance. As such, the interaction of organizational and occupational cultures may be illuminated by the ecological setting in which people from these organizations work. These cultures also give rise to social

Immigration enforcement: why does it matter who is in charge?  87 differentiation within these organizations and with the outside world; that is, organizational members see themselves as different from (and better than) their competitors but also their clientele.

COMPARING TWO ORGANIZATIONS This section compares the organizational features of CBSA and IRCC, using publicly available data. Contrasting the two organizations demonstrates structural variations: differences in mandates and missions, size and structuration, capacities and budgets, as well as in the demography of public servants. It confirms that CBSA is an agency with a larger mission of border control with a strong operational component, served by a relatively stable base of workers and a considerable budget. In contrast, IRCC appears as a medium-size department with an immigration regulation and facilitation mission, which includes a considerable service delivery focus. It boasts a younger and more diverse workforce that also tends to be more mobile within the federal public service. These differences are important because they highlight a structural division of labour over immigration enforcement and different capacities to contribute to the criminalization of immigration, and because they support the emergence of divergent occupational cultures. Canadian Border Services Agency The CBSA was established in 2003. It then became responsible for customs, which had been a revenue department responsibility since French, then British, colonial times. Immigration enforcement, including apprehensions, detention, and deportation, as well as Food and Agriculture powers of inspection at the border, were also placed under its purview. The CBSA operates as part of the Department of Public Safety Canada, also created in 2003 following mutatis mutandis the model of the US Department of Homeland Security. Public Safety Canada is tasked with national safety protection, community safety, and emergency management. Beyond CBSA, the department is responsible for the operations of Correctional Services and the Parole Board, the Royal Canadian Mounted Police, and the Canadian Security Intelligence Service. As an agency, it is organized in a hierarchical manner, with operations across Canada and internationally. In 2019, the CBSA employed 14,469 individuals. Of this number, about 93 per cent of the employees were permanent to the Agency. These employees are distributed across Canada, with about 31.9 per cent working in Ottawa, 26.3 per cent in Ontario, 14.6 per cent in Quebec, and 13 per cent in British Columbia. The largest share of Agency workers – 64.3 per cent – operate as border service agents, under the ‘FB’ occupational category (CBSA 2019). The average age of CBSA employees is 42.2 years old, with the 40–49 age group dominating slightly in 2019. The Agency operates within a parity zone, with about 51.7 per cent male employees and 48.3 per cent female (Treasury Board Secretary of Canada 2020a).1 Data for 2018 show that about 16.2 per cent of CBSA’s employees identified as ‘visible minorities’ (Treasury Board Secretary of Canada 2019). The average time of service at the Agency was 13.7 years, and 41.6 per cent of the employees of the CBSA counted between 10 and 19 years of service in the organization (CBSA 2019a). In comparison with the IRCC, there is less public data available about the internal organization of the Agency. This constitutes a clear indication

88  Research handbook on the law and politics of migration of the strong national security leaning of the Agency and its tendency to be less transparent and more secretive. The CBSA describes its border enforcement mandate as ‘supporting the immigration and refugee system when determining a person's admissibility to Canada, taking the appropriate immigration enforcement actions when necessary, and supporting the prosecution of persons who violate [Canada’s] laws’ (CBSA 2019b, [18]). Yet, CBSA’s official mandate goes beyond immigration enforcement. It is to provide ‘integrated border services that support national security and public safety priorities and facilitate the free flow of persons and goods, including animals and plants’. Within the organization, this mandate is translated into programmes that address travellers (inspections, frequent travellers’ programmes) and monitor commerce and trade. As part of their border enforcement activities, CBSA border officers and intelligence personnel perform security screening and admissibility screening for all of those entering Canada. The Agency’s immigration enforcement personnel may investigate, detain, and remove inadmissible persons from Canada, including risk assessment and intervention in refugee protection hearings – all powers vested by the IRPA (Atak, Hudson, & Nakache 2019, [2]). In 2018–19, the overall expenditures of the CBSA amounted to $2,154,937,683.2 Out of this budget, less than 10 per cent of expenditures were explicitly dedicated to immigration enforcement: $59,953,129 for immigration investigations; $65,259,045 for immigration detentions; $37,340,860 for hearings; and $42,297,978 for removal from Canada (Treasury Board Secretary of Canada 2020c). For comparison, the Agency spent $402,884,168 for Commercial-Trade Facilitation and Compliance in 2018–19. Other large expense shares – for example, Traveller Facilitation and Compliance ($703,249,004, 32 per cent of annual expenditures) – also contribute directly to the daily work of enforcement conducted by CBSA agents. This means that expenses explicitly flagged as facilitating mobility – as opposed to classical border enforcement – represented about 51% of the expenditures of the agency in 2018–19 (Treasury Board Secretary of Canada 2020c). These figures are not indicative of a move away from enforcement, since enforcement and controls are central to the daily tasks associated with facilitation. Instead, these numbers are more indicative of the CBSA’s representation of its contemporary mandate. Immigration, Refugees and Citizenship Canada IRCC was established as a standalone department in 1994. In 2003, its enforcement arm was removed to create (in part) CBSA and, from 2013 onwards, the department has been in charge of the administration of Canadian passports. IRCC corresponds to a classical model of a mid-size line department and focuses on a mandate of immigration regulation and settlement facilitation. With a large core in Ottawa, a sizeable portion of its activity involves providing immigration client services (such as visa provision), whereas a considerable portion of its budget is dedicated to funding the activities of third parties. As such, its role in immigration enforcement involves visa delivery to students, visitors, and workers; temporary resident permits; electronic travel authorization delivery; and review of family sponsorship applications. IRCC’s enforcement operations increasingly occur outside of Canada, with about 43 per cent of applications for permanent residence and 70 per cent of applications for temporary residence being processed by migration officers abroad and by third parties (IRCC 2020). In 2019 IRCC employed 7864 persons, 68 per cent of them as permanent and indeterminate employees. A majority of IRCC employees – about 54 per cent – worked in the National

Immigration enforcement: why does it matter who is in charge?  89 Capital Region, while 3.5 per cent worked abroad and the remaining workers were distributed across all regions of the country. In 2019, 40 per cent of the employees of the department worked in jobs classified as clerical and regulatory, 38 per cent in jobs related to programme administration, 12 per cent in administrative service, 3 per cent in analyst jobs associated with economics and social science services, and about 1 per cent of the employees were foreign service officers (Treasury Board Secretary of Canada 2020b). IRCC’s employees’ median age was 41 years old, with employees in the 30–39 age group representing the largest slice of the workforce. The department houses more female than male employees; between 2015 and 2019, women represented about 65 per cent of the total workforce of IRCC (Treasury Board Secretary of Canada 2020b). In 2019, 34 per cent of IRCC’s workforce were ‘visible minorities’ and 69 per cent of the workforce reported English as their primary official language (IRCC 2019b). Excluding executives, about 47 per cent of IRCC employees counted less than three years of service in 2019 and about 19 per cent counted more than ten years of service to the organization (IRCC 2019b). IRCC’s official mandate is closely linked to the objectives of Canada’s immigration programme, as set out in the 2001 Immigration and Refugee Protection Act. Official Department publications describe IRCC’s mission as advancing global migration, facilitating arrival and integration, maintaining Canada’s humanitarian tradition, being responsible for citizenship attribution, and fostering intercultural understanding. Within the organization, this mandate is translated into three main areas of responsibility: 1) citizenship and passports; 2) immigrant and refugee selection and integration; and 3) visitors, international students, and temporary workers. The citizenship and passports area manages the naturalization programme and the issuance of travel documents; this represents 27 per cent of the organization’s full-time employees. The second area of responsibility covers the immigrant selection programmes (asylum; family reunification; federal economic immigration; humanitarian, compassionate, and discretionary immigration; provincial economic immigration and refugee resettlement) and the general federal immigrant integration programme. In all, 49 per cent of the employees of IRCC work on the operation of these programmes. Responsibility for visitors, international students, and temporary workers represents about 8.2 per cent of IRCC’s budget and occupies 23 per cent of the full-time employees (Treasury Board Secretary of Canada 2020b). IRCC’s budget has been growing since 2015, in part because of the financial pressures associated with the indirect costs of irregular border crossings and the need to compensate provinces (Schertzer & Paquet 2019). In 2019–20, the total planned spending of the department was $2,848,462,878, with about 75 per cent of that spending dedicated to refugee and immigrant integration programmes (IRCC 2019a). This large share of the budget is mobilized for transfer payments to third parties (such as immigrant service-providing non-governmental organizations) and grants to governments or institutes (Treasury Board Secretary of Canada 2020b).

WHO IS IN CHARGE OF THE CRIMINALIZATION OF IMMIGRATION? A multidisciplinary literature has analysed the criminalization and securitization of immigration in a range of societies. The joint trends see immigrants and non-citizens associated with criminality and risk in public discourse and policy, fostering interventions on irregular

90  Research handbook on the law and politics of migration mobilities that favour security and policing devices, as well as penal tactics and regulatory tools anchored in criminal law (Bosworth & Turnbull 2015; Menjívar 2014). Overall, the general consensus assures us that such trends deepen the reach of immigration enforcement, making it stricter and more repressive. However, we wish to nuance this conclusion. Whether criminalization and securitization are given enough room to be put into practice is influenced by who is in charge of such enforcement. Division of Labour and Different Mandates The criminalization of immigration can be fostered by the degree to which those involved in immigration enforcement are embracing border policing, humanitarianism, market or efficiency imperatives as part of their organizational culture. On that point, the contrast between the two organizations is evident. While CBSA is tasked first with maintaining national security through the control and management of borders, IRCC officially has a mandate of immigration support. Indeed, IRCC’s mission is to ‘facilitate the arrival of people and their integration into Canada in a way that maximizes their contribution to the country while protecting the health, safety, and security of Canadians’ (IRCC 2018). These missions indicate the clear division of labour between the two departments that was established with the creation of the CBSA. This division reinforces the criminalization and securitization of immigration. When the most coercive parts of immigration enforcement, such as detention and deportation, are executed by the CBSA rather than, as was the case before, an immigration department, these tasks become imbued with a policing mentality without being balanced by a protection viewpoint. In contrast, the IRCC is involved in a range of immigration-related activities that include but go beyond enforcement, thus approaching immigration from a more holistic perspective. As such, it is involved in selection, admission, family reunification, economic immigration, and policy-making on these issues. This is clearly visible in the distribution of its budget, with core enforcement activities only representing a small portion of its resource allocation. These differences are further reinforced by the different incentives faced by the Agency and the Department. This is especially visible in the case of IRCC, which must meet yearly immigration intake targets and whose officers must process a fixed number of files in Canada and abroad. These pressures have been identified as shaping the decision-making process of IRCC visa agents, especially as this is a ‘high-caseload department, where there are more applications for permanent resident visas than there are spaces in the immigration program’ (Satzewich 2015, [57]). While the CBSA also faces similar resource and time limitations, it manages them with considerably larger financial and on-the-ground capacities since it does not transfer a sizeable part of its budget to third parties. Ultimately, through its activities, the CBSA is placed in a much more reactive position. Because of its stronger operational focus, imbued with intelligence and security, it also works with targets that are less public and less questioned by political principals. Ultimately, IRCC must respond to labour market pressures for worker supply as well as to political pressures on the part of immigrant families established in the country to receive, on a temporary or permanent basis, their family members from abroad. Thus two factors tame criminalization processes in this regard. First, IRCC’s enforcement activities are placed under the influence of political pressures. Visa officers in embassies and consulates are required to respect quotas set by the Ministry. Accordingly, discretionary bias in immigration enforcement ‘stems from the larger process of policy implementation and from the demands of

Immigration enforcement: why does it matter who is in charge?  91 organizational culture’ (Satzewich 2015, [39]), also involving the reactions of those who are at the receiving end of these decisions and who may contest them. For instance, Gilboy (1992) and Ellermann (2009; 2006) have shown how decisions as to whether or not to refuse a visa at the border involve more than regulatory application of the law; also relevant are expectations regarding whether those to whom visas are refused, and their families, have the political clout to appeal to their local MP for review of the decision. Interestingly, CBSA’s focus on security provides the Agency with a lot more capacity to resist these kinds of pressures. A central indication of this trend rests in the very different accountability mechanisms faced by the two agencies. Still today, CBSA operations are submitted to weak and limited independent review. Developing Distinct Organizational Cultures of Enforcement This division of labour has a recent genealogy. Before border authorities were granted immigration enforcement powers and became involved in deportation and detention, IRCC’s 1990s mandate was to both protect refugee claimants and ensure border control and smuggling enforcement (Mountz 2010, [28]). After the creation of the CBSA in 2003 that humanitarian mandate remained with IRCC, while smuggling control, intelligence-gathering, and ‘heavy’ enforcement duties were transferred to the CBSA, whose employees are not required by their ‘security and prosperity’ mandate to worry about such ‘soft’ issues as humanitarian response. As a result, in the Canadian case, border enforcement activities are not shaped by an organizational culture that worries about ‘protection’ and ‘humanitarianism’ – even if only as a depoliticizing option for asylum seekers – as is the case along Europe’s southern maritime border (Pallister-Wilkins 2015). This is the consequence of the gradual adoption of an enforcement worldview by the CBSA since its inception. Recent research shows that the Agency’s occupational culture on the frontline has shifted to a ‘police of the border’ mentality, despite the significance of its trade facilitation mandate for the Canadian economy (Côté-Boucher 2020). The process towards becoming an enforcement organization has been gradual, starting with changes in the legislation at the end of the 1990s which gave border officers extended search and arrest powers. This cultural switch has also meant focusing the CBSA’s immigration enforcement activities on preventing entry for irregular migrants coming by air, as well as developing an enforcement practice that deals with refugees and irregular migrants through a risk assessment rather than a humanitarian or protection lens. This has been done in different ways and it is worth comparing the CBSA and the IRCC in this regard. Border agencies are not immigration departments. The CBSA does not consider immigration a matter of ‘intercultural understanding’ and of ‘equal opportunity for all’ as does IRCC, per its mandate. In contrast, for the CBSA, immigration management is a security affair. Accordingly, its activities respond to risk management principles and to current understandings of transnational threats – whether relative to organized crime, irregular migration, or terrorism. This is expressed in the CBSA’s focus on intelligence-gathering regarding smuggling and trafficking trends, and in its centralization of its targeting activities in a National Targeting Centre located in Ottawa. With increased policing, security, and intelligence means at its disposition, the CBSA is also tasked with ever-expanding security screenings on refugee claimants and other travellers deemed ‘high risk’. In addition, border agencies and immigration departments such as the CBSA and IRCC benefit from widely differing types of professional socialization, influencing how much

92  Research handbook on the law and politics of migration enforcement will be seen through security lenses. Such distinctive professional socialization also affects the extent to which criminalization can become an integral part of immigration enforcement for an organization such as the CBSA. After its creation, the Agency inaugurated a reform of officer selection and training that adopted many elements of the police academy model. While this was formerly a type of employment that attracted administration-leaning individuals, current hiring policy for officers appeals to those with law and security educational backgrounds as well as individuals comfortable with the prospect of carrying policing equipment such as firearms, handcuffs, and batons. Training now includes physical fitness, firearm certification, and control and defence tactics. While it is impossible to verify a correlation, the socio-demographic differences between the agencies – in particular in terms of gender, age, and years of experience – tend to reinforce this difference. The transfer of much of immigration enforcement to the CBSA has been the main event that has led to the criminalization and securitization of immigration in Canada. As part of the immigration enforcement powers formerly under the responsibility of IRCC, the criminalization of immigration has been given room to expand in this new organization, with a stricter and more repressive culture still in the making. The CBSA has been found to unduly target migrants with precarious status in large Canadian cities (Villegas 2015; Moffette & Ridgley 2018). It has been involved in cases of indefinite detention and provision of improper care for migrant detainees with mental health needs (Silverman 2019; Gros & Van Groll 2015). Another illustration of the trend of securitization pertains to the area of refugee status determination. Atak, Hudson, and Nakache (2019) have concluded that, along with the transfer of IRCC enforcement responsibilities to the CBSA, the strengthening of security provisions that came with the refugee law reform of 2012 has generated ‘asymmetrical relations’ between the CBSA and refugee lawyers, limiting refugee claimants’ access to a fair hearing at the Immigration and Refugee Board, now mired in ‘procedural unfairness’ [20].

CONCLUSION In this chapter, we described and contrasted the two agencies involved in immigration enforcement in Canada: the Canadian Border Service Agency and Immigration, Refugee and Citizenship Canada. We highlighted organizational differences between these two institutions and explored how these impact the way immigration enforcement occurs in Canada, especially through a division of labour that reinforces the criminalization of immigration. While recognizing this division of labour, a future step should be to document how these two organizations collaborate over immigration enforcement, and potential conflicts between organizational cultures. The Canadian case shows the importance of anchoring analysis of immigration laws and politics with insights from socio-organizational studies. Public administration, sociology, and criminology, among other disciplines, provide concepts to further situate the production of immigration law and the processes through which it is implemented. These include the analysis of dynamism internal to bureaucracies, in relation to their institutional features, and the cultures that become associated with the enforcement of immigration law. Several states are reforming or have reformed their immigration bureaucracies, and the insights from Canada should convince us to use the conceptual tools just set out. The Canadian division of labour is not unique: in the past 15 years, countries such as the United States and

Immigration enforcement: why does it matter who is in charge?  93 Australia have established similar enforcement agencies (such as the US Immigration and Customs Enforcement and the Australian Border Force), moving these responsibilities away from traditional immigration departments. The development of new organizational features and cultures in these agencies, as well as the reorganization of traditional immigration departments, changes the landscape of immigration enforcement. Understanding this landscape should include legal analysis and fine-grained studies of policy implementation, but must also pay serious attention to the organizational answers to the questions ‘who is in charge?’ and ‘does it matter?’

NOTES 1. Yet, ethnographic work on the Agency shows a gendered and racialized division of labour, with more men working in border enforcement positions as border services officers and racialized people mostly absent from land border operations. 2. All figures are in Canadian dollars.

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