Citizenship and Unauthorised Migration: a Dialectical Relationship
| Author | Stefan Salomon |
| Published date | 01 May 2020 |
| DOI | http://doi.org/10.1111/1468-2230.12517 |
| Date | 01 May 2020 |
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Modern Law Review
DOI: 10.1111/1468-2230.12517
Citizenship and Unauthorised Migration: a Dialectical
Relationship
Stefan Salomon∗
The relationship between citizenship and immigration law is often conceived as a conceptual
dichotomy in which the former functions as the rhetorical domain of inclusion while immi-
gration law does the dirty work of detention, deportation and snooping into peoples’ lives in
order to uphold the inclusive values of the internal domain. States however employ a variety
of practices of immigration control that infringe citizens’ rights and produce lasting dilatory
effects on citizenship itself. Focusing on two specific case studies – racial profiling in identity
checks carried out for immigration pur poses and the standards of interpretation developed by
the European Court of Human Rights in regard to the right to family life in expulsion cases
– this article argues that current practices of immigration control result in a transformation of
citizenship along racialised lines, which hollows citizenship’s normative core of equality and
liberty.
INTRODUCTION
At the national party convention of Germany’s liberal Free Democratic Party
(FDP) in May 2018, Christian Lindner, chairperson of FDP, took to the stage
with the words that it is impossible to distinguish in the queue at the bakery
whether someone is a ‘highly qualified developer of artificial intelligence from
India or an illegally present . . . migrant.’ To maintain social peace,Mr. Lindner
proclaimed, the purpose of a ‘liberal migration policy based on the rule of
law’ is to ensure that everyone who is present on the territory of a state is
lawfully present. After a wave of voracious criticism, Mr. Lindner explained
that since the migration crisis, citizens with ‘migrator y backgrounds’ would
be increasingly looked upon with suspicion. The solution to counter German
Angst and to cope with the challenges of multi-religious and multi-ethnic
societies
∗Lecturer, University of Graz. This article is part of a three-year Austrian Sciences Fund research
project ‘Transnational Governance of Unauthorised Migration and the Transformation of Citi-
zenship’. The article was written during a three month research visit at the Law, Ethics, Politics
department at the Max Planck Institute for the Study of Religious and Ethnic Diversity in autumn
2018. An early version of this article was presented and profited immensely fromcr itical comments at
the work-in-progress seminar in October 2018 at the Law, Ethics, Politicsdepar tment at Max Planck
Institute. Particular thanks to Mareike Riedel and Stefan Schlegel for discussions and invaluable
suggestions on improving the article. Thanks also to Juan Francisco S´
anchez Barrilao for pointing
me to additional decisions of the Spanish Constitutional Court, as well as to Dana Schmalz and the
two anonymous peer reviewers for critical comments on earlier drafts of this article. Any errors are,
of course, my own.
C2020 The Author.The Moder n Law Review C2020 The Modern Law Review Limited. (2020)83(3) MLR 583–613
Citizenship and Unauthorised Migration
cannot be Leitkultur, but rule of law. If everyone . . . can rely on orderly procedures
based on the rule of law, procedures which guarantee that the person in the queue
at the bakery is righteous and legally present, tranquillity is established in a society.1
Leaving the troubling link between righteousness and lawful presence aside,2
Lindner’s reference to the rule of law reflects a global reality of immigration law.
Virtually all states have immigration laws and the very purpose of immigration
laws is to distinguish between persons authorised to enter and remain in the
territor y and those who lack authorisation to do so. Although international
law treatises, as well as domestic and international courts, reiterate that states’
competence to decide on the admission and exclusion of non-nationals from
their territor ies is a well-established rule of customary international law,3they
generally lack explanations on the normative basis of states’ right to exclude
non-citizens.4Most international lawyers5and most contemporary scholars
in law and political theory6share the basic view that states, in principle, not
only have the right to exclude non-citizens but also that immigration controls
are required to ensure and uphold the primacy of interests of citizens over
1 ‘Lindner sorgt mit ¨
Außerungen ¨
uber Migranten f¨
ur Wirbel’ Online Focus 14 May
2018 at https://www.focus.de/politik/deutschland/fdp-lindner-sorgt-mit-aeusserungen-ueber-
migranten-fuer-wirbel_id_8921039.html (last accessed 3 September 2019) (quote translated
from German by author).
2 In this article, I use the term ‘unauthor ised migrant’. In contrast to the notions of ‘irregular’ or
‘unlawful’, the notion of ‘unauthorised’ refers to lack of legal documents required to entering a
country without prejudging the legal effects of a that entry.
3 See, J. Crawford, Brownlie’s Principles of International Law (Oxford: OUP, 8th ed, 2012) 608; R.
Jennings and A. Watts (eds), Oppenheim’s International Law Vol 1 (Essex: Longman, 9th ed, 1992)
897-898.
4 Similarly, domestic courts in common law countries frequently state that immigration controls
fall into the domestic jurisdiction of states without inquiring fur ther into its justification and
rationale. For an in-depth critique see, V. Ch´
etail, ‘Sovereignty and Migration in the Doctrine
of the Law of Nations: An Intellectual History of Hospitality from Vitoria to Vattel’ (2016) 27
European Journal of International Law 901.
5 Early inter national lawyers, of course, advanced different justifications. For example, Samuel
Pufendorf (1632-1694) based the justification on utilitarian reason of the state, Christian Wolff
(1679-1754) on the will of a patrimonial state as the owner of its territory, and Emer de Vattel
(1714-1767) on the state as a moral person that ensures the good of the state. See, G. Cavallar,
‘Immigration and Sovereignty: Normative Approaches in the History of International Legal
Theory’ (2009) 11 Austrian Review of International and European Law 3. See also, Ch´
etail,n4
above, 911-914.
6 Tobe clear, the concrete justifications of states’ right to exclude non-citizens (eg, a state’s right to
self-preservation or the right to self-determination of a political community) and the exact scope
of that right (eg, which categories of forced migrants cannot be excluded) differ. See among
others, M. Walzer, Spheres of Justice (New York, NY: Basic Books, 1983) in particular ch 2; D.
Miller, Strangers in Our Midst. The Political Philosophy of Immigration (Cambridge, MA: Harvard
University Press, 2016) in particular 24-26 (arguing that if the interests of the community
are adversely affected the latter enjoys primacy over the interests of non-citizens and that the
states have a corresponding duty to enforce those obligations.) For a similar argument from
a democratic theory perspective see, A. Somek, The Cosmopolitan Constitution (Oxford: OUP,
2014) (arguing that democracy requires boundedness and primacy of insiders over outsiders). For
an economic welfare state argument, see, P. Collier,Exodus: How Migration is Changing our World
(Oxford: OUP, 2013) (arguing that beyond a certain economic threshold, migration negatively
affects the effectivity of institutions and inclusivity of a growing economy).
584 C2020 The Author. The Modern Law Review C2020 The Modern Law Review Limited.
(2020) 83(3) MLR 583–613
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