On the Right of Exclusion: Law, Ethics and Immigration Policy

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On the Right of Exclusion: Law, Ethics and Immigration Policy addresses Western immigration policies regarding so-called `normal migrants i.e. migrants without a legal right to admission. The book argues that if authorities cannot substantially justify the exclusion of a normal migrant, the latter should be admitted. By contrast, today authorities still believe they may deny normal migrants admission to the territory without giving them proper justification. Bas Schotel challenges this state of affairs and calls for a reversal of the default position in admission laws. The justification should, he argues, involve a serious accounting for the interests and reasons applicable to the normal migrant seeking admission. Furthermore, the first burden of justification should lie with the authorities. To build this case, the book makes three types of argument: legal, ethical and institutional. The legal argument shows that there are no grounds in either sovereignty or the structure of law for current admission practices. Whilst this legal argument accounts for a duty to justify exclusion, the ethical argument shows why the authorities should carry the first burden of justification. Finally, the institutional argument explores how this new position might be implemented. An original, yet practical, undermining of the logic that underlies current immigration laws, On the Right of Exclusion: Law, Ethics and Immigration Policy will be essential reading for those with intellectual, political and policy interests in this area. Front Cover On the Right of Exclusion Copyright Page Contents Acknowledgements Introduction 1. A legal problem: exclusion without justification Policies, authorities and migrants Exclusion Justification Searching for justification How the law justifies exclusion without justification 2. Exclusion and standard prerogatives of sovereignty Territorial integrity and jus excludendi alios Property theory State liberty Outdated and incoherent Conclusion 3. The exclusion thesis Jus includendi et excludendi according to Hans Lindahl Legal order and borders ‘De facto’ nature of the first borders and the right to exclude Exclusion as legal interpretation: legal, illegal and a-legal Exclusion as inevitable omnipresent violence Re-presenting the inside and outside Immigrant as state of exception and bare life. Agamben and the exclusion thesis Bare life and the state of exception as‘undecidability’ Exclusion thesis and the immigrant as ‘homo sacer’ No justification. Just ‘an open space of pure human praxis’ Carl Schmitt and the exclusion thesis ‘Hegung des Krieges’ and law as concrete order Jus publicum Europeanum: Sovereign Power and ‘Justus Hostis’ in Europe The end of the European Nomos The restoration of the Nomos: state of exception Hegung des Krieges and the exclusion thesis Recapitulating the central tenets of the exclusion thesis 4. Orders without borders: refuting the exclusion thesis Order without land and taking Inclusion does not imply exclusion ‘Here’ and ‘there’ ‘Us’ and ‘them’ Exclusion and distribution Exclusion and corrective justice ‘In’ and ‘ex’ Order as connections: orders without borders The deeper problem: law as unity Alternative: open system and connections Law between real and ideal Law as passage and connections Orders without borders 5. Inclusion for the sake of exclusion: the authority of immigration laws Preliminary remarks on the use of Raz’ authority thesis The authority of law: an extended reading of Joseph Raz’ authority thesis Having and claiming authority Authority is a matter of degree Absence of CLA , de facto authority, existence of law and legal validity Relative legal validity Recapitulating central tenets extended authority thesis The authority of admission laws Reform or relative legal invalidity 6. The first burden of justification Ethics of migration and fixing a new default position Admission, free movement and liberalism Shifting the burden of justification Moral and communitarian objections to admission Counter-arguments from minimal morality and contextual pluralism Immigration restrictions do not build a community Prudential and realistic arguments against general admission Conclusion 7. Institutional proposal: testing the proportionality of exclusion Central tenets of the Draft Inadequacy of the Draft’s legal basis Procedural rights instead of a material right to admission Procedural rights only triggered when material rights are at stake Liberty to move for everyone Alternative legal basis: extending the proportionality principle to legitimate interests Ratio ‘legis’ of the proportionality principle in Europe Interpretational issues Scope of proportionality test Scope of judicial review Legal status of migrants after annulment of exclusion decision Proportionality principle versus right to move: what’s in a name Annexes Bibliography Author index