Immigration

(3) Principles of 1951 Refugee Convention, 1957 Protocol on Refugee Status

1. Non-refoulement: cannot forcibly deport refugees when they face serious threat of persecution

2. Non-discrimination

3. Non-penalization: cannot criminalize refugees who do not fulfil entry procedures, etc.

Refugee vs Asylum:

• Refugee: status given to you and recognized by state

• Asylum seeker: status not yet recognized

What does the Spanish case tell us about the principle of non-refoulement?

The ECHR agrees with the deportation of those who do not fulfil entry requirements (thus non-penalization principle is not applied consistently

Jamaa v Italy

Italy forced return of asylum seekers in international waters

ECtHR Ruling: Italy is responsible for HR violations when intercepting vessels containing asylum seekers in international waters as they have effective control over persons

Zadvydas v Davis

• Question: can US hold asylum seekers indefinitely?

• US Supreme Court Ruling: administrative detention of asylum seekers: limit of 6 months. longer is unconstitutional (refering to 5th amendment: due process)

Hamdan v Rumsfield

• Hamdan, worker for Osama bin Laden, taken to Guantánamo

• to be tried by a military commission set up by Bush administration, not authorized by Congress

• US Supreme Court Ruling: unlawful → separation of powers

• Established that Guantanamo Bay “unlawful enemy combatants” are entitled to have detention reviewed (habeas corpus)

Hawaii v Trump

Hawaii v Trump

• Hawaii sues Trump for immigration policies (banning certain nations)

• Trump cites Korematsu precedent

• US Supreme Court ruling:

  • Upholds Trump’s policies due to security concerns

  • Repudiates precedent

2 Camps on Immigration:

1. Open Border Utopian Theorists

2. Realists (Dystopian)

1. Open Border Utopian Theorists 

• Pro-Immigrants → diversity, economic mobility

• Joseph Carens 

• proof: US, Canada 

• Uses John Rawls’ veil of ignorance → opt for max happiness for all, favour disadvantaged

  • according to veil, we must open up borders for immigration 

2. Realists (Dystopian): 

• Anti-Immigrants 

• Samuel Huntington

• Globalization causes contact between civilizations with different world views 

• Migration leads to more clashes 

• Recently gaining more traction

Critiques of Samuel Huntington’s Realist POV

Critics:

• Non-constructive → theory can produce conflicts itself

Response:

• Not sugarcoating