The Rights of Families and Children at the Border

Philosophical Foundations of Children’s and Family Law, Edited by Elizabeth Brake and Lucinda Ferguson. Chapter 7, Oxford University Press (2018), ISBN: 9780198786429

18 Pages Posted: 26 Apr 2018  

Matthew J. Lister

Deakin University School of Law

Date Written: April 16, 2018

Abstract

Family ties play a particular and distinctive role in immigration policy. Essentially every country allows ‘family-based immigration’ of some sorts, and family ties may have significant importance in many other areas of immigration policy as well, grounding ‘derivative’ rights to asylum, providing access to citizenship and other benefits at accelerated rates, and serving as a shield from the danger of removal or deportation. Furthermore, status as a child may provide certain benefits to irregular migrants or others without proper immigration standing that is not available to adults. Despite the fact that these benefits are extremely widespread, the justification for them remains less than fully clear, and the extent of the benefits required by considerations of justice (as opposed to expediency or other policy considerations) is debated. While essentially all states recognize at least some of these rights, a significant number of them wish to reduce, rescind, or place significant conditions on them. The role of the family in immigration policy, then, stands in need of further clarification. In this paper I attempt to provide the needed clarification and justification. I discuss first questions about family unification or formation, focusing in particular on how broad a right must be provided by states wishing to have a just immigration policy, and on whether this right violates norms of liberal neutrality. I then discuss the family in relation to refugee and asylum policy, considering both when family ties should be given weight in refugee protection decision and when harm to a family member should, on its own, be able to be grounds for applying for refugee protection. I turn next to the question of when, and to what extent, family ties should be able to serve as a “shield” to removal or deportation, and finish with a discussion of the special rights of and obligations to children in immigration settings.

Keywords: immigration law, family law, children's law, family immigration, refugees, deportation, political philosophy, legal philosophy, legal theory, global justice, philosophy and the family, liberal neutrality, international migration

JEL Classification: F22, J12, J13, J15

Suggested Citation

Lister, Matthew J., The Rights of Families and Children at the Border (April 16, 2018). Philosophical Foundations of Children’s and Family Law, Edited by Elizabeth Brake and Lucinda Ferguson. Chapter 7, Oxford University Press (2018), ISBN: 9780198786429. Available at SSRN: https://ssrn.com/abstract=3163474

Matthew J. Lister (Contact Author)

Deakin University School of Law ( email )

221 Burwood Highway
Building BC, 6th Floor
Burwood, Victoria 3125
Australia

HOME PAGE: http://www.deakin.edu.au/law

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