The ethics of deportation in liberal democratic states
| Author | Patti Tamara Lenard |
| Published date | 01 October 2015 |
| DOI | 10.1177/1474885115584834 |
| Date | 01 October 2015 |
| Subject Matter | Articles |
European Journal of Political Theory
2015, Vol. 14(4) 464–480
!The Author(s) 2015
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DOI: 10.1177/1474885115584834
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Article
The ethics of deportation in
liberal democratic states
Patti Tamara Lenard
University of Ottawa, Canada
Abstract
This article considers two questions: (1) Do democratic states have the right to deport
non-citizens present or residing on their territory? (2) And, if so, what principles should
guide deportation in democratic states? The overall objective is to offer an account of
what deportation should look like in a liberal democratic state. I begin by situating the
practice of deportation in larger discussions of the extent of state discretion in con-
trolling both borders and membership; here, I will argue that potential deportees
occupy an awkward middle space, i.e. it is not clear whether they should be treated
according to the principles that regulate discretion at the border or discretion in
admitting migrants to membership. I then consider more deeply whether deportation
can be rendered non-arbitrary, or whether it is bound to remainunjustly applied; where
it cannot be rendered non-arbitrary, it must be rejected, or so I shall argue. To be non-
arbitrary, the practice of deportation must meet three criteria: a publicity criterion, a
justification criterion, and a collective interest criterion. In the final section of the
article, I disentangle deportation into its component parts – I distinguish just cause
for deportation from just action in deportation – and consider how the criteria that
stem from a commitment to non-arbitrariness constrain its application to non-citizen
residents. The consequence of requiring deportation to be applied, if at all, in a non-
arbitrary way is that there will certainly be cases where liberal democracies find them-
selves unable to deport those who might otherwise be thought eligible for deportation.
Ultimately, I conclude that deportation from liberal democratic states can be fair only in
a small number of cases.
Keywords
Deportation, discretion, arbitrariness, democratic justice, non-citizens
In 2013, a major Canadian newspaper reported that the Canadian Border Services
Agency intended to participate in a reality television series titled Border Security.
Corresponding author:
Patti TamaraLenard, Graduate School of Public and International Affairs, University of Ottawa, 120 University
Private, 6th Floor, Ottawa, ON K1N6N5, Canada.
Email: patti.lenard@uottawa.ca
The purpose of the series, which has been produced in other countries, was to
highlight the important work being conducted by those on the front lines of
border protection. The CBSA explained of its participation: it ‘is an opportunity
to communicate Canada’s commitments to border security by increasing awareness
of the CBSA and the role its officers perform to ensure public safety’ (Stueck,
2013). The incident that prompted the reporting was the filming of a raid at a
Vancouver construction site, at which several irregular migrants were said to be
employed. The film captures the detaining of at least six men, all of whom are
believed to have since been deported from Canada. In my view, the filming of these
individuals, with the intention of showcasing their humiliation as entertainment,
represents a failure to respect their lives and choices. Yet, the case raises two
important questions: (1) Do democratic states have the right to deport non-citizens
present or residing on their territory? (2) And, if so, what principles should guide
deportation in democratic states? These are the questions I aim to begin answering
in this article, the overall objective of which is to offer an account of what deport-
ation should look like in a liberal democratic state.
I begin with an account of who is eligible for deportation and distinguish
between long-term residents of a state and those who are turned away at the
border or shortly after having crossed it. I then situate the practice of deportation
in larger discussions of the extent of state discretion in controlling both borders and
membership; here, I will argue that potential deportees occupy an awkward middle
space, i.e. it is not clear whether they should be treated according to the principles
that regulate discretion at the border or discretion in admitting migrants to mem-
bership. Ultimately, I suggest, that we ought to err in favour of being guided by the
principles that regulate membership; doing so will make the discretion deployed
against non-members eligible for deportation non-arbitrary.
The most commonly heard complaint against deportation, for those who accept
the state’s right to control their borders, is precisely that it is too often arbitrary in
its application. For example, in offering an evaluation of the practice of deport-
ation in Britain, the Joint Committee on Human Rights noted that the detaining of
asylum seekers during deportation proceedings ‘breaches the right to liberty
because it is arbitrary’ (Joint Committee on Human Rights, 2007). Similarly, liberal
norms, says Matthew Gibney, demand that deportation of asylum seekers (and
others, presumably) ‘are not arbitrary’ (Gibney, 2008: 153). Following the discus-
sion of state discretion more generally, and the ways in which state discretion as
applied to membership may offer a suitable framework for best practice treatment
of potential deportees, I consider more deeply whether deportation can be rendered
non-arbitrary, or whether it is bound to remain unjustly applied. Where it cannot
be rendered non-arbitrary, it must be rejected, or so I shall argue. To be non-
arbitrary, the practice of deportation must meet three criteria: a publicity criterion,
a justification criterion, and a collective interest criterion. In the final section of the
article, I disentangle deportation into its component parts – I distinguish just cause
for deportation from just action in deportation – and consider how the criteria that
stem from a commitment to non-arbitrariness constrain its application to non-
citizen residents. The consequence of requiring deportation to be applied, if at
Lenard 465
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