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IS DEPORTATION A FORM OF FORCED MIGRATION?

Matthew J. Gibney*

In this article I explore why, despite the fact that it seems to represent the epitome of forced migration, deportation (the quotidian practice of lawful expulsion) is generally ignored by forced migration scholars. My key claim is that deportation is implicitly deemed a legitimate form of forced migration. Forced migration is not simply a descriptive term; it is also typically an evaluative one. Deportation is treated differ- ently because it does not violate the key principles of a liberal-statist world order. I begin this piece by explaining why deportation is a phenomenon of such significance as to warrant attention. I then examine the normative framework (liberal-statism) underlying (most) studies of forced migration. I conclude by arguing that, even if one accepts the moral validity of this framework, the boundaries between deportation and other types of forced migration are often blurred, challenging the assumption that deportation can safely be ignored by scholars.

Keywords: citizenship, liberalism, refugees, State

1. Introduction

Since it has come into widespread use amongst scholars over the past two dec- ades, the term “forced migration” has proven controversial.1 A common concern is that the term is too vague (especially in contrast to the legally defined term “refugee”) to pick out a precise subsection of the world’s migrant population. Almost all migration is a matter of both force and choice, a combination, to put it in a slightly dated terminology, of push and pull. This is certainly true of most economic migrants. But even refugees and Internally Displaced Persons (IDPs) often have a choice to stay where they are, however undesirable that choice may be. In this article, I will consider a type of migrant that constitutes forced migration par excellence: individuals who are deported from their State under the operation of law. These migrants have no choice whether to stay or leave a particular State; they are forced to depart under the threat or actual use of force.

To get a flavour of how extreme such coercion can be, consider the relatively recent case of Jimmy Mubenga. In November 2009, Mubenga, a 46-year-old

* Matthew J. Gibney is Reader in Politics and Forced Migration at the University of Oxford, Official Fellow of Linacre College, Oxford, and Deputy Director of the Refugee Studies Centre.

1 J.C. Hathaway, “Forced Migration Studies: Could We Agree Just to ‘Date’?”, Journal of Refugee Studies, 20(3), 2007, 349–369; B.S. Chimni, “The Birth of a ‘Discipline’: From Refugee to Forced Migration Studies”, Journal of Refugee Studies, 22(1), 2009, 11–29.

Refugee Survey Quarterly, Vol. 32, No. 2, pp. 116–129 � Author(s) [2013]. All rights reserved. For Permissions, please email: [email protected] DOI:10.1093/rsq/hdt003

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Angolan man, died on a stationary plane at Heathrow airport, during an attempt by authorities to deport him from Britain. Mubenga had lived in Britain for the previous 16 years and was married with a wife and four United Kingdom (UK) born children. In 2006, he got involved in a pub brawl and was convicted of bodily harm. He was sentenced to jail and had his right to remain in Britain removed. After a long but ultimately unsuccessful appeal process, he was placed by private security guards onto British Airways flight 77 to Angola. When he would not sit down, the guards forced him down, by restraining him and sitting on his chest. This led to his suffocation. During the final minutes of his life, Mubenga repeatedly cried out that he could not breathe. But none of the many passengers around him intervened. One passenger lamented after the event: “For the rest of my life I’m always going to have that at the back of my mind – could I have done something? [. . .] I didn’t get involved because I was scared I would get kicked off the flight and lose my job. But [Mubenga] paid a higher price than I would have.”2

At the extreme, deportation is a form of international movement that is all push and no pull. The push is provided by the agents of the State who use detention centres, handcuffs, physical force and, sometimes even drugs, to effect departure. Deportation is a form of forced migration in which individuals who do not leave the State under their own steam will be shackled, bound, and literally carried out the State. As Mubenga’s case shows, the force involved can even be extreme enough to result in death. Cases like that of Mubenga may be an unintended consequence of the practice of deportation, but they still serve the State’s ultimate goal. For each publicised case of a resister suffering death, injury or humiliation encourages many others non-citizens facing deportation to leave passively in order to avoid a similar fate.

The fact that deportation represents the epitome of forced migration leads to the question that animates this article: why is the practice so often ignored by forced migration scholars? One will look in vain amongst the numerous volumes of the leading journals of refugee and forced migration studies, such as the Journal of Refugee Studies, Forced Migration Review and the Refugee Survey Quarterly, for articles on deportation in the form that occurs daily in Western and non-Western States alike. Little more interest is shown in textbooks on forced migration. These works tend barely to mention deportation, if they men- tion it at all. They confine their discussions to an array of other types of move- ment including conflict-induced displacement, escape from persecution, environmental displacement, development-induced displacement, and the internal displacement as a result of conflict.3 Deportation does make an occa- sional appearance in the more migration-oriented journals, such as the International Migration Review and the Journal of Ethnic and Migration

2 S. Shackle, “Jimmy Mubenga’s Death: No Prosecution, No Surprise”, The Guardian, 17 Jul. 2012, available at: http://www.guardian.co.uk/commentisfree/2012/jul/17/jimmy-mubenga-death-no-prosecution (last vis- ited 16 Jan. 2013).

3 A. Betts, Forced Migration and Global Politics, Wiley, Blackwell, 2009.

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Studies, but this presence merely reinforces the significance of the question of why forced migration scholars have abandoned deportation to others.

The lacuna is all the more surprising because forced migration is such a vague and inclusive concept. Embraced in large measure because it enables scholars (and practitioners) to break free from the shackles imposed the legal category of a refugee, the value of forced migration as a concept has always resided in its open-endedness. To be a forced migrant one did not have to cross an international boundary, be directly persecuted by state authorities, or even need a new country of residence (asylum). The category was not, like refugee, beholden to the international agreements of States or the narrow inter- ests of policy-makers.

A number of reasons for deportation’s low profile immediately suggest themselves. It might be that deportees and those traditionally conceived of as forced migrants experience movement in radically different ways, in part because deportees are forced to move home while others are forced from their homes. This difference, it could be argued, generates an important distinction in the needs of the two groups. Another possible explanation is that deportation is not, compared to other types of forced migration, an issue that is numerically or politically significant enough to justify anything other than the scant focus it receives. As I will suggest here, both of these reasons are inadequate. Instead, I am going to suggest another, deeper reason for deportation’s absence from the field of forced migration studies. My key claim is that deportation is ignored because it is implicitly deemed a legitimate or just form of forced migration and to understand why this is so, we have to explore how forced migration is conceptualised.

Forced migration, I will argue, is not simply a descriptive term; it is also typically an evaluative one – a term that is inflected with a particular normative framework. That framework is liberal-statism. It is because deportation, unlike other forms of forced migration (e.g. refugees, conflict-induced displacement, etc.), does not violate the key principles of a liberal-statist world order that it is treated differently from other types of forced migration and accepted as legit- imate. In what follows, I will do three things. First, I will show why the practice of deportation is significant enough as a phenomenon to warrant the attention of forced migration scholars. This will involve rejecting some reasons why its low prominence might be justified: that the hardships inflicted by deportation are somehow less severe than those generated by other types of forced migration and that fewer people are affected by this type of movement. Second, I will turn then to explain why it is that deportation has tended to be treated differently. This will involve outlining the normative framework that implicitly underlies (most) studies of forced migration, particularly but not exclusively those from a politics, law, and international relations perspectives. Finally, I am going to conclude by arguing that, even if one accepts (as many do) the moral validity of the liberal-statist normative framework, one should not ignore the way that bound- aries between deportation and other types of forced migration are often very unclear, notably in the case of the deportation of failed asylum claimants and of

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long-term non-citizen residents. These examples show why forced migration scholars must consider more closely the issue of deportation if the term “forced migration” is to have critical power.

But before proceeding further, let us define the practice of deportation. In this piece, I use the term “deportation” to refer to the departure of individual non-citizens under the threat of coercion by state authorities for breaches of immigration or criminal law. Deportation, in this account, is a broad term for a range of practices that go under a range of different nomenclatures in different States. In some States the law refers to “expulsion” or “removal” or “judicial deportation”. While each of these terms may capture different congeries of rights, protections, and entitlements, all of them involve expulsion from the State under the operation of law. Importantly, deportation, in the sense that I use it here, occurs as a result of individual breaches of law. This differentiates the practice from forms of mass expulsion and collective deportation, which are forbidden under international law. I do not consider this type of deportation because there is a broad consensus (shared by governing elites in liberal States) that it does constitute forced migration.

2. The significance and experience of deportation

Deportation power in liberal States is generally viewed as a power that is cor- relative with the State’s right to control the entry of non-citizens (immigration). The immigration control powers of States would be very limited indeed if States had the power only to prevent non-citizens from entering and not to expel them once they had arrived. For anyone arriving on state territory could stay regardless of whether they received permission to enter or remain, rendering any right to set qualifications on continued residence meaningless. Consequently, one way of viewing deportation is, following Daniel Kanstroom, as a form of “extended border control”,4 a practice that enables States to exercise immigration control within their borders. The obvious cases of this type of deportation involve the expulsion of undocumented migrants, visa over-stayers, and unsuccessful asylum-seekers.

Yet deportation can also act as a way in which the State punishes or dis- ciplines non-citizens who violate social and legal norms, or as a form of social control. In this case, what triggers eligibility for deportation is not immigration law as such but acts in violation of criminal law or judgements by state officials that certain non-citizens are a threat (security or criminal) to the State or its citizens. This rationale lies behind laws in countries like the United States (US) and the UK that mandate deportation for non-citizens who commit crimes that constitute felonies or result in imprisonment.

How significant is deportation as a practice? It might be thought that de- portation has been ignored by forced migration scholars because the numbers of people involved are small compared to other categories of the world’s forced

4 D. Kanstroom, Deportation Nation: Outsiders in American History, Boston, Harvard University Press, 2007.

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migrants, like refugees and IDPs. This argument is unsustainable. Over two million non-citizens were deported or returned under the threat of deportation from the US between 1997 and 2007. Moreover, in 2009 alone the US deported 400,000 non-citizens, a US record for a single year. While these figures dwarf those of any other Western country, the number of people deported across the European Union (EU) is still substantial. The UK deported over 400,000 people between 1997 and 2007; Germany more than 130,000 people (by air alone) between 2000 and 2005.5 In most Western countries, the volume of deport- ations has generally risen since the 1990s. These rises have typically been enabled by increased state expenditure on human resources and infrastructure for appre- hending, detaining and removing those subject to deportation orders, as well as new laws that facilitate legal expulsion, particularly in relation to non-citizens convicted of crimes.6

As well as being a common and voluminous practice, deportation has dra- matic effects on the lives of those who experience it. A great deal of scholarship has been focused on the psychological and social effects of forced migration for individuals, families and communities.7 This work has shown how, compared to more voluntary movement, forced migration can be profoundly disorientating and unsettling for individuals, in extreme circumstance resulting in post-traumatic stress disorder. There have been far fewer studies of the psycho- logical effects of deportation. Nonetheless, those studies that have been under- taken highlight striking similarities between the experiences of deportees and other forced migrants.

In a recent study comparing the experiences of individuals deported from the US to Mexico for criminal offences to voluntary returnees, one scholar found that: “compared to voluntary returnees, deportees appear to experience greater stigma associated with the nature of return in their hometowns, tend to report more diminished emotional and psychological well-being upon return, and return with greater financial insecurity”.8 A study by Brotherton and Barrios on US non-citizens deported to Cape Verde echoed these findings.

[. . .] it is hard to express in words the feelings of loss and the pain of separation that the subjects felt when they realized that they were being deported from the land wherein lived their spouses and children [. . .] and the vast majority of their friendship circles. Betrayal at the hands of the US

5 A. Kreienbrink, Voluntary and Forced Return of Third Country Nationals from Germany, Bundesamt für Migration und Flüchtlinge, Nürnberg, 2007.

6 B. Anderson, M. J. Gibney & E. Paoletti, “Citizenship, Deportation and the Boundaries of Belonging”, Citizenship Studies, 15(5), 2011, 547–563.

7 E.g., F.L. Ahearn, Psychosocial Wellness of Refugees: Issues in Qualitative and Quantitative Research, Vol. 7, Oxford, Berghahn Books, 2000; A. Ager & M. Loughry, “Psychology and Humanitarian Assistance”, Journal of Humanitarian Assistance, 1 Apr. 2004, retrieved from: http://sites.tufts.edu/jha/archives/80 (last visited 25 Feb. 2013).

8 C. Wheatley, “Push Back: US Deportation Policy and the Reincorporation of Involuntary Return Migrants in Mexico”, The Latin Americanist, 55(4), 2011, 35–60.

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government as they saw themselves stripped of what they thought were their “inalienable” rights, confusion as they tried to understand their new state- lessness and the permanence of the removal process, and trauma as they experienced a “massive” dislocation of their social life.9

These conclusions show obvious parallels between deportation and forced mi- gration. Indeed, the most significant differentiating feature between the experi- ence of the deportee and the refugee seems to be the stigma attached to deportation, a feature in particular of those deported after commission of a crime. This stigma can lead to social isolation of the deported in the new country of residence and add the extra dimension of shame to their experience. Given the profound effects that deportation has on individuals, it is essential to interrogate the reasons why this widespread practice has traditionally been excluded from the canon of forced migration studies.

3. Explaining deportation’s absence

What we have then is a puzzle. Deportation is a hugely significant (and growing) international practice that has affected millions of people over the last few years in Western States alone. Furthermore, it has very negative consequences for those individuals affected by it. As we have seen, the psychological effects the deported experience are very similar to those experienced by other forced migrants. Why, then, is deportation left out of the discussion of forced migration? The short answer, I believe, is that deportation is considered a legitimate (or just) form of forced migration. However, to understand this claim one needs to understand the way that forced migration is usually conceptualised.

One can use forced migration simply as a descriptive term to describe any kind of movement across borders that has an element of force involved. Hence, the term typically applies to those who are compelled to leave their country because of conflict, persecution or due to human rights abuses. This use of the term generates some interesting and even controversial academic and practical questions: What actually constitutes “force”? Is the movement of an individual to another country to escape impoverishment subject to force analogous to the refugee fleeing organized violence?10 To what extent does theorising of refugees and other displaced people as agents undermine their claim to be conceptualised as forced migrants?11 I think that, irrespective of how we answer these questions, the deported are going to be considered “forced migrants”. As we have seen, deportees are physically forced from their State of residence and often exercise little or no agency in terms of when, where or how they leave.

9 D. Brotherton, & L. Barrios, “Displacement and Stigma: The Social-psychological Crisis of the Deportee”, Crime, Media, Culture, 5(1), 2009, 36.

10 A.R. Zolberg, A. Suhrke & S. Aguayo, Escape from Violence: Conflict and the Refugee Crisis in the Developing World, New York, Oxford University Press, 1989; N. van Hear, New Diasporas: The Mass Exodus, Dispersal and Regrouping of Migrant Communities, London, Routledge, 1998.

11 D. Turton, Conceptualising Forced Migration, Oxford, Refugee Studies Centre, 2003.

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To understand deportation’s absence one has to go beyond forced migration as a descriptive category and note that it is also an evaluative one, a category that inhabits a particular normative terrain. This evaluative dimension of forced mi- gration is ubiquitous but rarely explicitly acknowledged by scholars or practi- tioners. It is implicit, for example, in the International Relations scholar Thomas Weiss’s reference to the “blight of forced migration”.12 It is apparent also in the way that forced migration studies tends to be dominated by scholars and stu- dents attracted to the subject by a desire to help vulnerable people: people who have been dispossessed, who are victims of the maliciousness of States, the dan- gers of war, or the capriciousness of nature. David Turton has even suggested that the only real rationale for forced migration studies is to help improve the con- dition of dispossessed people.13 This emphasis on forced migration as a kind of injustice or misfortune suffered by vulnerable people has a profound influence on the groups that forced migration scholars choose to study: the victims of persecution (refugees), war (IDPs) or environmental catastrophe (the putative “environmental refugee”). The absence of the deportee reflects a gap between forced migration as a descriptive concept and as an evaluative one. The practice of deportation does not get studied because while it fits the descriptive criteria of forced migration, it does not meet these (implicit) normative ones.

Deportees are not generally conceptualised as people who have been wronged or suffered a misfortune for two reasons. First, unlike most forms of forced migration, deportation involves a situation where coercion is used to send people to a country where they belong and out of a country where they do not. If a key violation associated with forced migration is dispossession, this violation appears to be lacking in the case of deportation because the deported are not deprived of their rightful place of membership. One sees this in the language States use with reference to deportees. They are typically described as “guests” who have outstayed their welcome or, more forcefully, as those that have (through criminal or other illicit behaviour) “abused the hospitality” of their hosts.14 Lying behind this contrast between the deported and other forced migrants is a conception of belonging that accords with the international state system’s division of people by citizenship into separate sovereign States. Deportation, as William Walters rightly notes, is an act of the “international policing of aliens” because it is a practice that returns individuals to their rightful places of residence and in so doing reinforces the current international order’s account of where individuals are entitled to be.15

The kind of forced migration studied by scholars tends, by contrast, to be that which violates the international state system’s account of where people belong; it is concerned with expulsion or forced departure from a place of

12 Betts, Forced Migration (emphasis added). 13 Turton, Conceptualising Forced Migration. 14 Kanstroom, Deportation Nation. 15 W. Walters, “Deportation, Expulsion, and the International Police of Aliens”, Citizenship Studies, 6(3), 2002,

265–292.

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lawful residence, with the all of the attendant legal and political difficulties, like alienage, that this creates. The key point is this: deportation, unlike most forms of forced migration, works with the grain of international system of States, not against it. Forced migrants gain attention because their status as people out of place creates problems for the international system of States. As Emma Haddad (following Arendt) notes with reference to refugees, they “are misfits whose identity fails to correspond to that of any established nation-state, having been pushed into the gaps in the system.”16 Deportees, in contradistinction, create no such problems, as they are simply people sent back where they belong.

Second, deportation is a form of expulsion power compatible with the liberal State. As commonly operated across Western States, deportation power is shaped and constrained by liberal procedural norms which involve the pro- hibition of the arbitrary use of state power. More specifically, the practice of deportation draws its legitimacy from the fact that it possesses the following features: it is operated in accordance with domestic and international law (embodying, in the case of the latter, norms against refoulement and collective expulsion); it is applied to individuals for specific and publicly stated violations of immigration or criminal law; and it respects the principle of non-discrimination in treatment (e.g., it does not target groups on the basis of their ethnicity, gender, sexual preference, etc.). Furthermore, the publicly stated goals of deportation serve what are widely perceived to be important and legit- imate societal ends, such as the protection of the host community from crime and terrorism and ensuring the integrity of asylum systems for refugee protection.

These two features of contemporary deportation power make it consistent with what might be called dominant liberal-statist norms. The return of indi- viduals to their State of nationality (the State where they belong) is consistent with a statist division of the world into separate, sovereign membership units; the adherence to certain procedural norms is consistent with liberal principles. Unlike other forms of forced migration, which emerge from capricious, unlawful or negligent state action, deportation is, to paraphrase the political theorist John Dunn, a form of forced migration that has been made fit for the modern liberal State.17

To highlight the way that this normative framework constructs the differ- ence between legitimate and illegitimate expulsion, it is helpful to consider what expulsion power looks like when it is not modified by one or other of these normative constraints. If we take the statist (belonging) norm first, it is clear that deportation from a State one belongs to is widely considered unacceptable (and the people concerned forced migrants if not necessarily refugees). One can high- light this point through a thought experiment: imagine, for the sake of

16 E. Haddad, The Refugee in International Society: Between Sovereigns, Cambridge, Cambridge University Press, 2008, 7.

17 J. Dunn, Setting the People Free: The Story of Democracy, London, Atlantic, 2005.

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argument, that the US was deporting 400,000 of its citizens (rather than its non-citizens) a year on the grounds that they had committed crimes. There seems little doubt that this would be conceived of as forced migration, and capture the attention of scholars and the international community.

Equally problematic are actions that while not challenging statism disregard the liberal (procedural fairness) norm. States that expel non-citizens en masse and arbitrarily typically receive censure and the focus of forced migration scholars. The deportation notices the Ugandan dictator Idi Amin sent to his country’s Asian community (most of whom were not citizens of Uganda) in 1972 was emblematic; the act earned him international opprobrium and the people who left under threat of deportation were not uncommonly referred to as forced migrants and even refugees. Operation Wetback in the US in 1949 when hun- dreds of thousands of illegal and legal Mexican were rounded up and deported and the enlistment of vigilante groups to expel “illegal migrants” in Malaysia in the last decade are less publicised examples that have also been studied by forced migration scholars.18

4. Problematising the distinction between deportation and forced migration

What follows from acknowledging the role of the statist-liberal normative frame- work in defining what counts as forced migration? It is evident that deportation is distinguished from forced migration purely because of a normative conception that understands forced migration as arbitrary and disrespectful of the liberal- statist account of where people should be entitled to reside. Yet, once we acknowledge that what separates deportation from forced migration is simply a normative (evaluative) framework, the distinction between the two becomes potentially problematical for two reasons.

This is, firstly, because what counts as forced migration is going to vary across different normative frameworks. The liberal statist perspective is certainly the dominant optic through which to understand deportation, partly because it reflects international human rights law which, in turn, reflects the dominance of powerful liberal States in the post-1945 period, but it is hardly the only con- ceivable normative framework to which one might adhere. Liberal cosmopol- itans, like Joseph Carens, for example, are committed to an international right of free movement that significantly limits state or nation based claims of exclusion. In this cosmopolitan view, any and all deportation is illegitimate – an act of forced migration – because it violates the fundamental human right of each and every individual to reside where they wish on the globe.19 There are, of course,

18 Van Hear, New Diasporas; E.L.E. Hedman, “Refuge, Governmentality and Citizenship: Capturing ‘Illegal Migrants’ in Malaysia and Thailand”, Government and Opposition, 43(2), 2008, 358–383.

19 J.H. Carens, “Aliens and Citizens: The Case for Open Borders”, The Review of Politics, 1987, 251–273.

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many other normative frameworks to which one might subscribe.20 The socialist, universalist Christian, Muslim, or anarchist frameworks, for example, draw the dividing line between legitimate and illegitimate forced migration in different ways from the liberal statist one either because they have different accounts of human entitlements (e.g., prioritise socio-economic rights over civil liberties), define differently the scope of the relevant human community (e.g., the global community rather than the nation-state) or because of they possess a different account of what authorities may not legitimately do (e.g., deport children). The key point is this: if you do not accept the liberal statist framework, there is no necessary reason why you are going to accept as legitimate its distinction between deportation and other types of forced migration.

But acknowledging the normative underpinnings of forced migration has important implications even if one is committed to a liberal statist framework. For even if one is a staunch adherent whether you see any particular act of deport- ation as forced migration or not is going to depend on how you interpret the demands of the framework. And what constitutes a legitimate interpretation of the requirements of the framework may not be obvious or may be in active dispute.

In the remainder of this article, I will illustrate this last observation. I will do so by looking at two places where the view that deportation meets the criteria of the liberal statist requirements for legitimacy has recently been questioned. One is the deportation of failed asylum-seekers, which raises questions about the nature and provision of procedural justice; the second is about the deportation of permanent residents, which problematises established accounts of where people belong (both morally and legally).

Let us take the case of failed asylum-seekers first. Arguably, the boundary line between what constitutes legitimate deportation and what constitutes forced migration is never more significant than in the case of the expulsion of unsuc- cessful asylum-seekers. The line between returning individuals and subjecting them to refoulement is determined almost entirely by the amount of procedural diligence a State shows in adjudging claims to protection. Thankfully, the re- quirements of liberal procedural justice are relatively clear in principle: asylum claims need to be impartially decided, made on the basis of facts relevant to the individual claim, and made under conditions that allow for all of the relevant facts to emerge.

Yet, taking these principles seriously shows exactly why deportation is often controversial in practice. The procedures of even mature liberal States in the realm of deportation often fall below the basic standards of liberal justice. For example, many observers of Western States asylum processes argue that these systems are not sufficiently independent of political biases. In the UK, for example, asylum processing is handled by the Home Office, a Government

20 B. Barry & R. Goodin (eds.), Free Movement: Ethical Issues in the Transnational Migration of People and of Money, Pennsylvania, Pennsylvania State University Press, 1992; M.J. Gibney, The Ethics and Politics of Asylum: Liberal Democracy and the Response to Refugees, Cambridge, Cambridge University Press, 2004.

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department that has a strong interest in controlling migration over and above any interest it might have in ensuring refugee protection. Unsurprisingly, per- haps, some scholars and practitioners have argued that a “culture of disbelief” permeates decision-making on asylum, resulting in a situation where the stand- ards required for proving a claim to refugee protection are unnecessarily high or distorted. In such a context, claimants may be refused the kind of impartial consideration of their claims they deserve.21

A related concern is that governments, who often have strong domestic political reasons for reducing asylum claims, shape the procedural protections available to asylum-seekers to minimise their chance of success. It is surely no coincidence that the rise of Government and public anxiety about asylum in the UK since the early 2000s has been accompanied by the use of fast track pro- cessing of claims, diminished funding for legal aid, and the abolition in-country appeal rights for certain groups of applicants.22 Critics have charged that the procedural justice mechanisms of some liberal States sometimes seem to be another aspect of their migration deterrent policies rather than instruments for uncovering the existence of persecution.23

Another, different concern is that it is not always clear what procedural justice requires in practice. One reason for this stems from the fact that its demands change over time with our understanding of the social world. To give a contemporary example, recent studies of children in the asylum system have shown that if one wants accurately to decide whether children are refugees (whether they face persecution) one has to treat them, procedurally, quite dif- ferent from adults. One needs to accept, for example, that the stories they tell may be vaguer, that silence serves different purposes for them than for adults, and that they are more forthcoming when asked open ended rather than nar- rowly tailored questions. Furthermore, adjudicators, as Heaven Crawley24 has recently argued, may need to suspend their preconceptions of children as non-political and innocent actors, if they are truly to understand their relation- ship to the State and thus the likelihood of them facing persecution. The worry- ing implication of this research is that the procedures state officials have traditionally used for getting to the truth of children’s claims for protection may have been completely unreliable.

A second place where the boundary between legitimate deportation power and forced migration becomes contested involves the question of who belongs in the liberal State. As I illustrated above, liberal statism constructs deportation as different from other forced migration in part because the former returns people

21 J. Souter, “A Culture of Disbelief or Denial? Critiquing Refugee Status Determination in the United Kingdom”, Oxford Monitor of Forced Migration, 48, 2011.

22 M.J. Gibney, “Asylum and the Expansion of Deportation in the United Kingdom”, Government and Opposition, 43(2), 2008, 146–167.

23 H. Burgess, “Rough Justice: Inside the British Asylum System”, Refuge: Canada’s Journal on Refugees, 27(2) 2012, 122–132.

24 H. Crawley, “ ‘Asexual, Apolitical Beings’: The Interpretation of Children’s Identities and Experiences in the UK Asylum System”, Journal of Ethnic and Migration Studies, 37(8), 2011, 1171–1184.

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to the country where they belong rather than displacing them from a country of rightful residence. The assumption here, deriving from the international system of States, is that where one belongs is where one holds formal citizenship. Hence, a non-citizen who has been resident in Australia for the last 40 years of her life who violates immigration law can be deported, though not on an individual who has been naturalised immediately after satisfying Australia’s 2-year residency requirement for citizenship. This account of membership with its sharp distinc- tion between citizens and non-citizens is increasingly considered problematical.

It is considered morally problematical because it ignores the claims of non-citizens who possess “moral membership” in the State in which they reside, people that have been variously described as “societal members”25 or “aliens by the barest of threads”.26 A public outcry was recently generated in Australia when the government deported to Serbia a 38-year-old non-citizen, Robert Jovivic, who had been living in Australia since he was 2 years old but had never acquired formal citizenship. Riding a backlash that was eventually to lead to his return to Australia, the opposition Immigration minister of the time opposed his deportation stating that: “even though he has not been a good member of our community, Jovicic is undeniably Australia’s responsibility”.27

The idea that those who belong in the liberal State extends beyond holders of legal citizenship chimes with recent writing by a range of legal and political theorists, including Joseph Carens, Michael Walzer, Rainer Baubock, and Ayelet Shachar.28 From a range of different perspectives, these scholars have stressed the moral claims to citizenship and protection against deportation of long-term non-citizen residents. These moral claims grow out of the liberal and democratic ideal of congruence between the contours of the State’s coercive power and the boundaries of its membership. As Walzer has put it, any State that allows non-citizens to live and work in the State over an extended period without denying them access to the protections of membership risks being a “tyranny” where citizens unilaterally decide the fate of non-citizen residents.29 An expan- sive conception of membership that guarantees membership for long residing non-citizens (and thus protects them from deportation) is also consistent with

25 R. Bauböck, Citizenship And National Identities In The European Union Citizenship And National Identities In The European Union, No. 4, Jean Monnet Chair, 1997.

26 M. Foster, “Alien by the Barest of Threads: The Legality of the Deportation of Long-Term Residents from Australia”, Melbourne University Law Review, 33, 2009, 483.

27 B. Evans, “Jovicic Awaits Residency Decision”, Australian Broadcasting Corporation, 9 Mar. 2006, available at: http://www.abc.net.au/lateline/content/2006/s1588226.htm (last visited 16 Jan. 2013); T. Iggulden, “Jovicic Asked to Apply for Serbian Citizenship”, Australian Broadcasting Corporation, 10 Mar. 2006, avail- able at: http://www.abc.net.au/lateline/content/2006/s1589191.htm (last visited 16 Jan. 2013).

28 J.H. Carens, “The Case for Amnesty”, Boston Review, 34(5–6), 2009, 7–11; M. Walzer, Spheres of Justice, New York, Basic Books, 1983; R. Bauböck, Stakeholder Citizenship: An Idea Whose Time Has Come?, Washington, DC, Migration Policy Institute, 2008; and A. Shachar, The Birthright Lottery: Citizenship and Global Inequality, Boston, Harvard University Press, 2009.

29 Walzer, Spheres of Justice.

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more communitarian ideas of the State. The view that one’s individual identity (and thus claims to membership) are constructed by the social and cultural community in which one lives provides a strong moral foundation for seeing long terms resident non-citizens as part of the community of those who belong, especially when they arrived as children.30

An expanded conception of belonging is also increasingly reflected in the law, particularly at international level. Utilising Article 12 of the United Nations Covenant on Civil and Political Rights which proclaims that an individual is not to be arbitrarily deprived of “the right to enter his own country”,31 the United Nations Human Rights Committee (UNHRC) recently found that, in some cases, this obliges States not to deport or expel non-citizens. Such an interpret- ation was part of the UNHRC’s 2012 decision in Nystrom v. Australia. In this case, the Australian Government had cancelled the visa of a 30-year-old non-citizen who had lived in Australia for all but the first 27 days of his life, forcing him to move to Sweden. Despite the fact that Nystrom was a non-citizen and had been convicted of aggravated rape and armed robbery, the Committee found that deportation from Australia breached his right to enter his own country and thus urged his re-admittance to Australia. In Europe, Article 8 of the European Convention on Human Rights (the right to a family life) is regularly, if not uncontroversially, used by Courts to protect from deportation non-citizens of long residence convicted of crimes or immigration violations. While these decisions have been criticised by politicians and tabloid newspapers (especially when they protect convicted criminals or suspected terrorists), they establish an implicit legal basis for determining who belongs in the UK that goes beyond legal citizenship.

In sum, the cases of procedural justice for asylum-seekers and the expulsion of long-term resident non-citizens undermine the idea that there exists a bright line between the deportation practiced by liberal States and forced migration. Even if we accept the appropriateness of a liberal statist normative framework, it may not always be clear what procedural justice demands or whom one should consider a member entitled to unconditional residence. To be sure, the examples I have offered in no way prove that deportation is always an illegitimate practice (or equivalent to forced migration). Indeed, most of the thousands of deport- ations that occur annually across Western States may be perfectly legitimate within a liberal statist framework. But what my examples clearly do demonstrate is that one cannot simply assume deportation’s legitimacy and thus its distinction from other types of forced migration.

30 M.J. Gibney, “The Rights of Non-citizens to Membership”, in B. Blitz & C.Sawyer (eds.), Statelessness in the European Union: Displaced, Undocumented, Unwanted, Cambridge, Cambridge University Press, 2011, 41–68.

31 International Covenant on Civil and Political Rights, 999 UNTS 171, 16 Dec. 1966 (entry into force: 13 Mar. 1976), Art. 12.

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5. Conclusion

The term “forced migration” is used to describe not only particular forms of coerced human movement but to identify people who move internationally under conditions of gross injustice and human rights violations. As a category and as a concept, forced migration supplements the idea of a “refugee”, casting its net wider that those facing persecution for the sake of sociological accuracy and moral applicability. As I have shown in this piece, the practice of deportation as a quotidian state practice raises the question of whether there are some types of coerced international movement that States may be morally and legally justified in creating. This a question that forced migration scholars have largely ignored in recent years. But because deportation is a practice of growing international sig- nificance with a deep impact upon the lives of individuals, families, and com- munities, it is not a question that forced migration scholars can or should avoid any longer.

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