Security and Migration Law in the Less Brave New World
| Published date | 01 December 2007 |
| DOI | 10.1177/0964663907082734 |
| Date | 01 December 2007 |
| Subject Matter | Articles |
SECURITY AND MIGRATION
LAW IN THE LESS BRAVE NEW
WORLD
CATHERINE DAUVERGNE
University of British Columbia, Canada
ABSTRACT
This article examines the shifting relationship between security concerns and migra-
tion law, considering in particular the tensions in this relationship since the events of
September 11, 2001. It focuses on a series of high profile cases testing provisions
allowing for the indefinite detention of non-nationals in the United Kingdom, the
United States, New Zealand and Canada. These cases are the basis for the conclusion
that the transformed securitization of migration law leads to a new challenge for the
rule of law. As security becomes the norm for migration law, its traditional excep-
tionalism is being called into question.
KEY WORDS
indefinite detention; migration law; rule of law; security; September 11, 2001
THE MONUMENTAL terrorist attacks that leveled the World Trade Center
and damaged the Pentagon are a key marker for the global security
agenda. They jolted the sense of personal security of citizens of Western
countries, and changed the threat perspective of Western states. While the
point has frequently been made that many around the globe have long lived
with this level of insecurity, the capacity of these events to nonetheless shift
the global agenda affirms the role of prosperous Western states in setting that
agenda. The 2001 attacks were followed almost immediately by a crackdown
on movement across American borders, which included contested measures
such as a registration requirement for categories of immigrants living in the
United States and heightened scrutiny of potential asylum seekers from
predominantly Muslim states.1The London bombings of the summer of 2005
SOCIAL &LEGAL STUDIES Copyright © 2007 SAGE Publications
Los Angeles, London, New Delhi and Singapore, www.sagepublications.com
0964 6639, Vol. 16(4), 533–549
DOI: 10.1177/0964663907082734
had similar political results. Much was made in the press of citizenship of the
bombers – they were British – and of how they were, despite this, somehow
isolated from British society because of having grown up in immigrant
enclaves (Little, 2005; Manji 2005; Van Natta et al., 2005). Within weeks of
the July attacks, Prime Minister Blair had announced an intention to crack
down on foreigners, even if amendments to the Human Rights Act were
required (Cowell, 2005; Wintour, 2005).
The discursive and political responses to each of these events were, thus,
partially cast in migration law terms. These responses are emblematic of an
increasing ‘securitization’ of migration law. This article explores this security
turn in migration law and makes the central argument that the key shift in
migration law is that the security turn is becoming ‘normal’ rather than ‘excep-
tional’. This has the effect of drawing migration law into closer alignment with
a rule of law ideology, a considerable alteration of migration law itself. The
argument proceeds by examining a series of recent cases in the final appellate
courts of the United Kingdom, New Zealand, the United States and Canada
that address the question of indefinite detention for foreigners. While there are
many migration law settings where a turn to security is evident, the indefinite
detention cases focus the security dilemma tightly on the central tension this
poses for liberal states. Following this discussion, I consider how these cases
can be explained drawing on recent work in theorizing security. This provides
the basis for conclusions about the shift in how rule of law ideology is oper-
ating in migration law, and what the consequences are, in turn, for advocacy.
THE DILEMMA OF INDEFINITE DETENTION
Arguably the most contentious discretionary migration security procedure
is the indefinite detention of non-nationals who are considered to be security
risks. While many prosperous Western states have had this capacity for some
time, since 2001 its targets have been predominantly young, brown, male,
Muslims.2A key feature of this procedure is the use of information that
cannot be made public because of national security concerns. In Canada, as
elsewhere, these and similar provisions had, in an earlier political climate,
been found constitutionally valid on the basis that the detention is not for a
criminal purpose, but for an immigration purpose. Accordingly, this deten-
tion is not punitive, but is attendant upon the executive capacity to deport
foreigners and thus justifiable to facilitate that end. This context means that
an individual can be detained as a matter of executive rather than judicial
action, which has been important in constitutional arguments in Australia
and Canada. There is an element of sleight of hand in this reasoning in that
deportation itself easily takes on a punitive character, but it had proven
resilient in earlier times (R v Governor of Durham Prison, ex parte Hardial
Singh, 1984; Canada (Minister of Employment and Immigration) v Chiarelli,
1992; Chu Kheng Lim and Ors v Minister for Immigration, Local Govern-
ment and Ethnic Affairs and Anor, 1992).
534 SOCIAL & LEGAL STUDIES 16(4)
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