The Shifting Categorization of Immigration Law
38 Pages Posted: 17 Jul 2019
Date Written: February 1, 2019
For political reasons, the rise in forced migration and arrival of mixed flows of migrants to the US and Europe is frequently referred to as a crisis or an emergency. This paper argues that the crisis is not merely a crisis of numbers, protection, or policy, but rather a deep categorical and ethical crisis. In this crisis, the fundamental organizing categories of immigration law are shifting, as is their underlying logic. It represents a shift of focus: from migrants to migration, from causes of migration to the hardship and political interest of the destination state, from other-regarding and community interests infused ethics to nationalist self-interest ethics.
The process of categorization in migration law and policy occurs in a respectful dialogue, in the best of circumstances – or in a conflictual struggle, in other cases – between executives, legislatures, civil societies and judiciaries. The paper offers a critical analysis of this dialogue on categorization, looking at the recent case law on the termination of temporary protection, the blanket exclusion of nationals of certain countries most known as the travel bans, and the different policies addressing the perceived large-scale migration through the Mexican border.
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