scholarly journals Towards a Theory of Arbitrary Law-making in Migration Policy

2020 ◽  
pp. 9-33
Author(s):  
Patricia Mindus
Keyword(s):  
Ethical Theory ◽  
Migration Policy ◽  
Alternative Conception ◽  
Border Control ◽  
Policy Area ◽  
Arbitrary Power ◽  
Refugee Policies ◽  
Migration Law ◽  
Law Making ◽  
Selection Of

The article considers what arbitrary law-making is and what may count as arbitrary law-making in the field of migration policy. It contributes to the discussion of arbitrary law-making in relation to migration policy in two ways. First, it offers an analysis of arbitrariness, pointing out that rhetorical definitions abound – perhaps not surprisingly, given that migration is a highly-contested policy area – and argues for why transposing a conception developed in ethical theory to the law has high theoretical costs. An alternative conception is described and found to be better equipped to deal with arbitrary law-making in migration policy. It is argued that if we want to understand how arbitrariness plays out in the field of migration law – which is necessary to find ways to hinder its spread by the adoption of specific law-making practices – we first need to distinguish arbitrariness from legitimate choices of legislators. Secondly, a typology of forms of arbitrariness is fleshed out in relation to contemporary migration policy. The policy area is here broadly construed to include not only naturalisation processes, but also migration, asylum and refugee policies and more generally border control. The examples are taken from a broad selection of countries. They have been chosen for illustrative purposes only. Keywords: arbitrariness, discretion, arbitrary power, forms of arbitrary power, borders, migration policy, citizenship policy

Oxford Studies in Metaethics Volume 15

2020 ◽  
Keyword(s):  
Philosophy Of Mind ◽  
Philosophy Of Language ◽  
Moral Realism ◽  
Ethical Theory ◽  
Philosophical Work ◽  
Moral Explanation ◽  
Recent Developments ◽  
Selection Of

This series is devoted to original philosophical work in the foundations of ethics. It provides an annual selection of much of the best new scholarship being done in the field. Its broad purview includes work being done at the intersection of ethical theory and metaphysics, epistemology, philosophy of language, and philosophy of mind. The chapters included in the series provide a basis for understanding recent developments in the field. Chapters in this volume explore topics including the nature of reasons, the tenability of moral realism, moral explanation and grounding, and a variety of epistemological challenges.

scholarly journals BEYOND THE NEW MIGRATION LAW: THE CHALLENGES OF BRAZILIAN MIGRATION POLICY IN THE FACE OF NEW SOUTH-SOUTH MIGRATION FLOWS

2020 ◽  
Vol 6 (11) ◽  
Author(s):  
Leonardo Cavalcanti ◽  
Lorena Pereda ◽  
Marília de Macêdo ◽  
Tânia Tonhati
Keyword(s):  
Qualitative Research ◽  
Return Migration ◽  
New South ◽  
Migration Policy ◽  
Flow Management ◽  
Haitian Immigrants ◽  
The Face ◽  
Integration Mechanisms ◽  
Migration Flows ◽  
Migration Law

This article analyzes the Brazilian State's responses to the arrival of the south migratory flows to Brazil. The study empirically focuses on Haitian migration in Brazil. We argued the Brazilian migration policies have focused until now mainly in the reception process of immigrants. The New Migration Law (13.445/2017) and Regulatory Resolutions have allowed a regulated entry of Haitian immigrants in Brazil. However, the qualitative research conducted with Haitians in Brasília and Curitiba in 2018-1019, named “Immigration and economic crisis. Haitian return migration and circularity tactics” has showed there are still pending challenges, which the policies has not tackled. In sum, this study showed that in Brazil up to now the integration mechanisms have not developed at the same pace as the flow management rules.

scholarly journals Las formas de lo arbitrario: Los altos y bajos de Towards a Theory of Arbitrary Law-making in Migration Policy de Patricia Mindus

2021 ◽  
pp. 178
Author(s):  
Elena Prats
Keyword(s):  
Migration Policy ◽  
Law Making

El presente artículo se centra concretamente en dos cuestiones. En primer lugar, se presenta la iluminadora reciente obra de Patricia Mindus en la que se realiza una distinción conceptual entre las concepciones de arbitrariedad en diferentes ámbitos semánticos, particularmente en la filosofía y el derecho, así como la exposición de una tipología donde se distinguen los diferentes usos en el derecho. En segundo lugar, se despliega una crítica a diferentes aspectos de la tipología de Mindus apoyada por una argumentación sobre los que considero son usos incorrectos señalados por la autora.  

scholarly journals A (não) criminalização das migrações e políticas migratórias no Brasil: do Estatuto do Estrangeiro à nova Lei de Migração | Migration policy and migrations’ (non) criminalization in Brazil: from the Foreigners Statute to the new Migration Law

KPGT_dlutz_1 ◽  
2017 ◽  
Vol 31 (2) ◽  
pp. 208
Author(s):  
Ana Paula Martins Amaral ◽  
Luiz Rosado Costa
Keyword(s):  
Cold War ◽  
Criminal Policy ◽  
Migration Policy ◽  
September 11 ◽  
Global Scale ◽  
Terrorist Attacks ◽  
Undocumented Migration ◽  
Política Criminal ◽  
The Cold War ◽  
Migration Law

Resumo: A partir dos atentados terroristas de 11 de setembro de 2001 e os ataques subsequentes em Madri e Londres, em 2004 e 2005, reforçou-se em escala global o discurso de securitização das políticas migratórias, com o recrudescimento do controle das fronteiras e a criminalização da imigração irregular. Com base nisso, no presente trabalho, analisa-se a convergência entre a política migratória e a política criminal no Brasil, com base no Estatuto do Estrangeiro de 1980 – elaborado em um contexto de securitização das migrações durante o período de Guerra Fria – e nas perspectivas de mudança com a nova lei de migrações, a Lei 13.445/2017. Esta nova lei, ainda em vacatio legis, traz a não criminalização das migrações como princípio da política migratória brasileira. Palavras-chave: Crimigração. Migração indocumentada. Política migratória. Política criminal. Abstract: Following the terrorist attacks of September 11, 2001 and the subsequent attacks in Madrid and London in 2004 and 2005, the discourse of securitization of migration policies has been strengthened on a global scale, with the resurgence of the control of borders and the criminalization of irregular immigration. Based in this scenario, in this paper, we analyze the convergence between migration policy and criminal policy in Brazil, based in the Foreigners Statute of 1980, elaborated in the Cold War context of securitization of the migrations, and in the new perspectives brought by the new law of migrations, the Law n. 13.445 / 2017. This law, still in vacatio legis, stablishes the non-criminalization of the migrations as a principle of Brazilian migration policy. Keywords: Brazilian migration policy. Criminal policy. Crimigration. Undocumented migration.

scholarly journals How Human Rights Cross-Pollinate and Take Root: Local Governments and Refugees in Turkey

2021 ◽  
pp. 123-157
Author(s):  
Elif Durmuş
Keyword(s):  
Human Rights ◽  
Local Governments ◽  
Policy Making ◽  
Central Government ◽  
Field Research ◽  
Migration Policy ◽  
Human Rights Regime ◽  
Refugee Policies ◽  
Failure To Protect ◽  
Central Government Agencies

AbstractThe human rights regime—as law, institutions and practice—has been facing criticism for decades regarding its effectiveness, particularly in terms of unsatisfactory overall implementation and the failure to protect the most vulnerable who do not enjoy the protection of their States: refugees. Turkey is the country hosting the largest refugee population, with around four million at the end of May 2020 (https://www.unhcr.org/tr/wp-content/uploads/sites/14/2020/06/UNHCR-Turkey-Operational-Update-May-2020.pdf). As an administratively centralised country, Turkey’s migration policy is implemented by central government agencies, but this has not proved sufficient to guarantee the human rights of refugees on the ground. Meanwhile, in connection with urbanisation, decentralisation and globalisation, local governments around the world are receiving increasing attention from migration studies, political science, law, sociology and anthropology. In human rights scholarship, the localisation of human rights and the potential role of local governments have been presented as ways to counter the shortcomings in the effectiveness of the human rights regime and discourse. While local governments may have much untapped potential, a thorough analysis of the inequalities between local governments in terms of access to resources and opportunities is essential. The Turkish local governments which form the basis of this research, operate in a context of legal ambiguity concerning their competences and obligations in the area of migration. They also have to deal with large differences when it comes to resources and workload. In practice, therefore, there is extreme divergence amongst municipalities in the extent to which they engage with refugee policies. This chapter seeks to answer the question why and how certain local governments in Turkey come to proactively engage in policy-making that improves the realisation of refugees’ rights. Exploratory grounded field research among Turkish local governments reveals four main factors that enable and facilitate the engagement of local governments in refugee policies: (1) the capacity of and institutionalisation in local governments; (2) the dissemination of practices and norms surrounding good local migration and rights-based governance through networks; (3) the availability of cooperation and coordination with other actors in the field, and (4) political will. Collectively, these factors illustrate how a new norm—the norm that local governments can and ought to engage in policy-making improving the rights of refugees—is cross-pollinating and taking root among Turkish local governments. This understanding will provide valuable insights into how norms are developed, travel and are institutionalised within social and institutional networks, and how differences in access, capacity, political and cooperative opportunities may facilitate and obscure the path to policies improving human rights on the ground.

A Bird’s Eye View on ECJ Judgments on Immigration, Asylum and Border Control Cases

2019 ◽  
Vol 21 (2) ◽  
pp. 166-193 ◽  
Author(s):  
Daniel Thym
Keyword(s):  
Public Policy ◽  
Case Law ◽  
Family Reunification ◽  
Border Control ◽  
Statutory Interpretation ◽  
Domestic Courts ◽  
Principle Of Proportionality ◽  
Statistical Survey ◽  
Migration Law

Abstract Many experts of EU migration law deal with ECJ judgments on a regular basis, but they rarely reflect on how individual rulings on diverse themes such as asylum, family reunification or return relate to each other. This article fills that gap and presents a horizontal analysis of 155 judgments combining quantitative and qualitative findings. Our statistical survey shows that selected themes and references from certain countries dominate the ECJ’s activities. In qualitative terms, the article considers three overarching themes: the concept of public policy; the practice of statutory interpretation, including in light of objectives: the principle of proportionality and interaction with domestic courts. Our study shows that the search for cross-sectoral coherence defines much of the case law, although success of this venture is compromised by enduring inconsistencies, which complicate the emergence of a reliable and predictable judicial approach towards the interpretation of secondary legislation on migration.

Temp Nations? A Research Agenda on Migration, Temporariness, and Membership

2019 ◽  
Vol 63 (9) ◽  
pp. 1389-1403 ◽  
Author(s):  
David Cook-Martín
Keyword(s):  
Research Agenda ◽  
Full Range ◽  
Migration Policy ◽  
Foreign Workers ◽  
Nation State ◽  
Temporary Migration ◽  
Political Actors ◽  
Migration Regimes ◽  
Selection Of

This article outlines a research agenda to study how, why, and with what consequences systems of migration policy that rely on time-delimited statuses have been tools of nation-state making. Taking a long view and comparing key contemporary cases, I argue that temporary migration regimes have been appealing because they purport to reconcile the disparate interests and preferences of political actors in sending and receiving countries, native and foreign workers, and employers. Such regimes have been a means for the affirmative selection of migrants as workers—an approach that preserves the option of rejecting them as permanent members. The proposed research would uncover the full range of temporal means by which states have shaped populations through migration policy. Substantively, it explores how changes in the ratio of temporary to permanent statuses affect the meaning of political belonging. This would include an examination of how the policing of temporariness requires routine bureaucratic monitoring as well as extreme measures like deportation with consequences for migrants as well as for the communities in which they live.

scholarly journals Política migratoria y seguridad en Argentina hoy: ¿el paradigma de derechos humanos en jaque?/ Migration policy and security in Argentina today: human rights paradigm in jeopardy?

2018 ◽  
pp. 91-109 ◽  
Author(s):  
Ana Paula Penchaszadeh ◽  
Lila Emilse García
Keyword(s):  
Human Rights ◽  
Social Integration ◽  
Migration Policy ◽  
Executive Branch ◽  
The State ◽  
Security Measures ◽  
Derechos Humanos ◽  
Direct Linkage ◽  
General Recognition ◽  
Migration Law

Este artículo tiene por objetivo abordar los recientes cambios operados en la política migratoria argentina, con especial énfasis en las modificaciones introducidas por el Decreto de Necesidad y Urgencia (DNU) 70 (de enero de 2017), con vistas a iluminar los vínculos actuales entre migraciones, derechos humanos y seguridad. El caso argentino resulta de especial interés porque la Ley Migratoria vigente desde 2004 incorpora importantes estándares de derechos humanos, que deberían funcionar como límite al avance de ciertas prerrogativas soberanas del Estado en nombre la seguridad. Las distintas medidas adoptadas por el Gobierno de la alianza Cambiemos, desde su llegada al poder en 2015, se basaron en una vinculación directa entre migración y criminalidad, dirigida a reinscribir la política migratoria en el terreno de la seguridad y a enfatizar el control, en detrimento de la integración de las personas migrantes. Creemos que el DNU 70 tiene un carácter ejemplar para el análisis específico de las paradojas que entraña la criminalización de las migraciones, con el consecuente avance de la excepcionalidad soberana, en un contexto normativo de reconocimiento de los derechos humanos. Sobre estas tensiones versa el presente artículo, con la expectativa de que este caso pueda alumbrar otros similares. Abstract The goal of this paper is to address recent changes over Argentine migration policy, particularly reforms introduced by the Necessity and Urgency Decree (Decreto de Necesidad y Urgencia-DNU) 70, issued by the executive branch in January 2017, to highlight the current links between migrations, human rights and security. Argentina’s case is of the most importance given that its Migration Law (from 2004) has recognized the highest standards on human rights, which should limit certain actions of the State taken in the name of security. Measures adopted by Cambiemos government (a right based coalition that won in 2015) are based on a direct linkage between migration and criminality, intended to rewrite migration policy in the field of security to emphasize control, instead of social integration of migrants. In this frame, we believe DNU 70 set an example that allows analyzing the paradox encompasses in the criminalization of migrations, with consequences such as more exceptionalism in sovereignty, even though in a context of general recognition of human rights. This article goes about these tensions expecting Argentina’s case may illuminate others.

scholarly journals Economic Migration of Ukrainians to the EU: A View from Poland

2020 ◽  
Vol 47 (2) ◽  
pp. 37-53
Author(s):  
Natalia Chrobak
Keyword(s):  
Migration Policy ◽  
Border Zone ◽  
Similar Increase ◽  
Eu Countries ◽  
Long Time ◽  
Economic Migration ◽  
Migration Law ◽  
The Eu

The present study aims to analyze several aspects of economic migration from Ukraine to Poland in the context of the last 10 years (2007–2017). It looks at how changes in migration policy in Poland and the EU impacted the dynamics of migration to Poland, which has been for a long time one of the most popular destinations for Ukrainians. In 2014, an increased number of Ukrainians migrating to Russia was observed, although no similar increase was recorded for EU countries (excluding Poland). In 2014, Polish consular services issued over 556,500 visas to Ukrainian citizens. Since 15 September 2012, Ukrainians no longer have to pay for national visas if they intend to stay in Poland for 3 months to 1 year. Since July 2009, the Agreement on Local Border Traffic between Poland and Ukraine has been in force. Based on this agreement, Ukrainian nationals residing in the border zone – the area extending 30 km from the border – do not need visas, only local border traffic agreement has been increasing each year (13 to 40% depending on year). It amounted to 10,734,959 in 2015. My purpose is to present how migration law in Poland affects migratory waves.

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