The Criminalization of Migration: Context and Consequences

441 Pages·2018·1.476 MB·English

by  Idil Atak (editor), James C. Simeon (editor)

Acknowledgments i
THE CRIMINALIZATION OF MIGRATION
mcgill-queen’s refugee and forced migration
studies
Series editors: Megan Bradley and James Milner
Forced migrationis a local, national, regional,and globalchallenge with pro-
found political and social implications. Understanding the causes and conse-
quencesof, and possible responses to,forced migration requires careful analy-
sis from a range of disciplinary perspectives, as well as interdisciplinary
dialogue.
The purpose of the McGill-Queen’s Refugee and Forced Migration Studies
series is to advance in-depth examination of diverse forms, dimensions,and
experiences of displacement, including in the context of conflict and violence,
repression and persecution,anddisasters and environmental change. The series
will explore responses to refugees, internal displacement,and other forms of
forced migration to illuminate the dynamics surrounding forced migration in
global, national,and local contexts, including Canada, the perspectives of dis-
placed individuals and communities, and the connections to broader patterns
of human mobility.Featuring research from fields including politics, interna-
tional relations, law, anthropology, sociology, geography,and history, the series
highlightsnew and critical areas of enquiry within the field, especially conver-
sations across disciplines and from the perspective of researchers in the global
South, where the majority of forced migration unfolds. The series benefits
from an international advisory board made up of leading scholars in refugee
and forced migration studies.
1 The Criminalization of Migration
Context and Consequences
Edited by Idil Atak and James C. Simeon
preface iii
The Criminalization of
Migration
Context and Consequences
.
EDITED BY IDIL ATAK AND JAMES C SIMEON
McGill-Queen’s University Press
Montreal & Kingston •London •Chicago
iv preface
© McGill-Queen’s University Press 2018
isbn978-0-7735-5445-0(cloth)
isbn978-0-7735-5446-7(paper)
isbn978-0-7735-5563-1(epdf)
isbn978-0-7735-5564-8(epub)
Legal deposit fourth quarter 2018
Bibliothèque nationale du Québec
Printed in Canada on acid-free paper that is 100% ancient forest free
(100% post-consumer recycled), processed chlorine free
This book has been published with the help of a grant from
the Canadian Federation for the Humanities and Social Sciences,
through the Awards to Scholarly Publications Program, using funds
provided by the Social Sciences and Humanities Research Council of
Canada. Funding has also been received from Ryerson University and
York University.
We acknowledge the support of the Canada Council for the Arts,
which last year invested $153million to bring the arts to Canadians
throughout the country. Nous remercions le Conseil des arts du
Canada de son soutien. L’an dernier, le Conseil a investi 153millions
de dollars pour mettre de l’art dans la vie des Canadiennes et des
Canadiens de tout le pays.
Library and Archives Canada Cataloguing in Publication
The criminalization of migration : context and consequences / edited by
Idil Atak and James C. Simeon.
(McGill-Queen’s refugee and forced migration studies ; 1)
Includes bibliographical references and index.
Issued in print and electronic formats.
isbn978-0-7735-5445-0 (cloth). – isbn978-0-7735-5446-7 (paper). –
isbn978-0-7735-5563-1 (epdf). – isbn978-0-7735-5564-8 (epub)
1.Refugees – Government policy – Canada. 2.Human rights – Canada.
3.Emigration and immigration law – Canada. I. Atak, Idil, editor II. Simeon,
James C., editor III.Series:McGill-Queen’s refugee and forced migration
studies ; 1
hv640.4.c3c75 2018 305.9'06914 c2018-903628-1
c2018-903629-x
This book was typeset by True to Type in 10.5/13Sabon
preface v
Contents
Foreword:Protecting the Human Rights of Migrants as Part
of a Long-Term Strategic Vision on Mobility and Diversity vii
François Crépeau
Preface xi
James C. Simeon and Idil Atak
Introduction: The Criminalization of Migration: Context and
Consequences 3
Idil Atak and James C. Simeon
PART ONE THE CRIMINALIZATION OF MIGRATION AND ITS
INTENDED AND UNINTENDED CONSEQUENCES
1 The (Mis-)Uses of Analogy: Constructing and Challenging
Crimmigration in Canada 37
Graham Hudson
2 Treating the Symptom, Ignoring the Cause: Recent People-
Smuggling Developments in Canada and Around the World 71
Angus Grant
3 Anti-Trafficking and Exclusion: Reinforcing Canadian
Boundaries through Human Rights Discourse 92
Julie Kaye
PART TWO THE CRIMINALIZATION AND THE EXCLUSION OF
REFUGEES IN CANADA AND ABROAD
4 Recent Jurisprudential Trends in the Interpretation of Complicity
in Article 1F(a) Crimes 119
Nancy Weisman
5 An Analysis of Post-Ezokola and JS Jurisprudence on Exclusion 138
Lorne Waldman and Warda Shazadi Meighen
vi Contents
6 The Interpretation of Exclusion 1F(b) of the 1951Refugee
Convention Internationally and in Canada 168
Joseph Rikhof
PART THREE CRIMMIGRATION RESPONSES TO “MIGRATION
CRISES”: HISTORICAL AND COMPARATIVE PERSPECTIVES
7 Attrition through Enforcement and the Deportations of Syrians
from Jordan and Turkey 193
Petra Molnar
8 Is the US Gaming Refugee Status for Central Americans? A Study
of the Refugee Status Determination Process for Central American
Women and Their Children 226
Galya Ben-Arieh
9 A Population Takes Flight: The Irish Famine Migration in Boston,
Montreal, and Liverpool, and the Politics of Marginalization and
Criminalization 257
Dan Horner
PART FOUR CRIMINALIZING REFUGEES AND OTHER FORCED
MIGRANTS: CURRENT DYNAMICS, FUTURE CHALLENGES, AND
PROSPECTS
10 Back to the Future: Shifts in Canadian Refugee Policy
Over Four Decades 283
Peter Goodspeed
11 Scoping the Range of Initiatives for Protecting the Employment and
Labour Rights of Illegalized Migrants in Canada and Abroad 313
Charity-Ann Hannan and Harald Bauder
12 Progress towards a Common European Asylum System?
The Migration Crisis in Europe 340
Judith Gleeson
Conclusions: Beyond Context and Consequences:
Countering the “Criminalization of Migration” through the
Promotion of the Human Rights of Migrants 367
James C. Simeon and Idil Atak
Contributors 399
Index 405
Acknowledgments vii
FOREWORD
Protecting the Human Rights of Migrants
as Part of a Long-Term Strategic Vision
on Mobility and Diversity
François Crépeau
The paradox of current migration policies is illustrated by the number
of deaths at sea or in deserts. The suffering of so many is a symptom of
systemic failings, despite sustained investment in “securitizing” bor-
ders. Such policies also speak to how states respond to difference
and diversity.
As long as the drivers of migration – violence and poverty as push
factors, labour needs as pull factors– remain, people will move through
porous borders. As is well illustrated in this collection, unless we egre-
giously violate the human rights of migrants, “sealing” the border is
a fantasy. Resisting mobility is inefficient and costly. Governing it is a
better option.
Yet, we must understand the individual trajectories and policy
dynamics at work. A considerable number of employers are actually
calling for more exploitable migrants to come. Migrants are respond-
ing to the opportunities of such labour markets and would not come
otherwise. By not properly regulating labour markets, by providing
very limited opportunities for low-wage migrants in the form of most-
ly precarious migration statuses that subject them to human rights
and labour rights violations, “we” are at least co-responsible for un-
documented migration,which we then criminalize.
Moreover, electoral democracies do not know how to “represent”
migrants. They are the best system we have ever invented for govern-
ing ourselves, but they have a structural limit: if one is not represent-
viii François Crépeau
ed, one’s rights are not respected, protected, and promoted in the
political system. Nationalist populist politicians continue to affirm
that migrants steal jobs, create insecurity,or change our values – all
assertions that have been proven wrong by social sciences – and to
affirm thiswith total impunity, since most mainstream politicians are
not taking the electoral risk of picking a fight in favour of persons
who are politically non-existent.
There are no easy solutions. Mobility and diversity create complex
issues that require long-term vision, sophisticated policies, targeted
investments,and nuanced discourses. Up to now, with a few exceptions,
we have been treated to none of the above, when we urgently need
strong integration policies, efficient equality and anti-discrimination
mechanisms, effective action against hate speech, access to justice for all,
and the active promotion of diversity at all levels.
We need to change our collective mind-set. States must accept that
they all are involved in migration, as destination, transit, and home
countries– most often at the same time. Migrants will come, no mat-
ter what, because of push and pull factors.
Prohibitions and repressive policies, without regular migration
channels for asylum seekers and much-needed low-wage migrants, do
not change anything with regard to push and pull factors,and only
entrench smuggling operations and underground labour markets,
resulting in more deaths at sea and more human rights violations. The
testimonies collected in this volume show the toxic, counterproduc-
tive,and unsustainable nature of repressive measures when no appro-
priate official mobility option is offered. On migration issues, as for
the regulation of drugs and alcohol, we must choose the path of
harm-reduction rather than zero-tolerance policies. The proper gover-
nance of mobility must mean legalization, regulation, and taxation
for most migrants.
The only way to actually reduce smuggling is to take over the mo-
bility market by offering regular, safe, accessible, and affordable
mobility solutions, with all the identity and security checks that effi-
cient visa regimes can provide.
As Kenneth Roth, head of Human Rights Watch, said in September
2015: “if there is a crisis, it is one of politics, not capacity.”1We are fac-
ing a crisis of political leadership. There is no getting out of a crisis
unless one provides a post-crisis vision. A long-term strategic vision for
mobility policies is needed, just as it is for energy, environmental, pub-
lic transit, industrial, or other policies. Politicians will need to delin-
eate a long-term, human rights-based strategic mobility and diversity
Foreword ix
policy vision, with precise timelines and accountability benchmarks,
to give meaning and direction to the actions currently taken.
The main axis of this long-term vision should be the elimination of
precariousness in the status of migrants, in order to empower them to
fight for their rights, whatever the context: labour market, housing,
health care, education, or anti-terrorism.
Long-term substantial and collectively shared resettlement policies
would go a long way toward responding to the needs of refugees, alle-
viating the responsibilities of transit countries, and reassuring host
populations that this migration is properly governed.
For migrant workers, destination countries should recognize their
real labour needs, and facilitate regular migration channels for labour
at all wage levels, through many smart visa options.
The idea is not to diminish border controls, but to increase them
and make them more effective. Offering most foreigners easy access to
appropriate travel documents, such as visas for resettlement, visits,
family reunification, work, or studies, would allow states to concen-
trate their deterrence efforts on the minute percentage of foreigners
who really need to be excluded. One key condition, however: we need
a sharp increase in the respect of labour conditions in favour of all
workers, and the repression of exploitative employers and recruiters.
With target 10.7of the 2030Agenda for Sustainable Development,
states agreed to “facilitate” migration and mobility in the next fifteen
years. This means easing mobility – lowering barriers to migration –
and governing it better. It does not mean open borders, but a coordi-
nated increase of smart visa and non-visa avenues for migrants at all
skill levels and for the resettlement of refugees.
The current negotiation of the un Global Compact on Migration
could be the opportunity to initiate a fifteen-year “agenda,” comple-
mentary to the 2030Agenda for Sustainable Development, with bench-
marks and accountability mechanisms. The Zero Draft2of this Glob-
al Compact has positively surprised most observers, as the human
rights and labour rights of migrants are at the core of the document.
One hopes that the momentum will not be lost during the negotia-
tions themselves.
There is a silver lining. Mobility will eventually come to be cele-
brated, thanks to the groundwork done by civil society, the vigilance
of the judiciary, improved media reporting, welcoming cities, mobile
technologies, the diverse and mobile business community, the open-
ness of the youth toward mobility and diversity, and the admirable
resilience and courage of migrants themselves.