‘As It Was in the Beginning’: An Examination of the Convergence, Divergence and Dilemmas of Immigration Practices in Some Selected liberal Democratic States

Cosmas Ikegwuruka; Ugonna Chimnonyerem Nkwunonwo

doi:doi:10.11648/j.ijls.20200302.14

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‘As It Was in the Beginning’: An Examination of the Convergence, Divergence and Dilemmas of Immigration Practices in Some Selected liberal Democratic States

Cosmas Ikegwuruka, Ugonna Chimnonyerem Nkwunonwo

Published in International Journal of Law and Society (Volume 3, Issue 2)

Received: 13 February 2020 Accepted: 11 March 2020 Published: 28 May 2020

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Abstract

This paper holds the view that the burgeoning phenomenon of immigration control sits uncomfortably on the fault line separating the prerogatives of State sovereignty from the rights of non-citizens regardless of the broad discretion of States to control immigration. Using liberal democratic ideologies, the paper expresses that, there is in existence, a tension between the right to liberty of migrants against the broadly unfettered rights of States to control the admission and expulsion of migrants conferred on States by national and international law. Drawing from law and policy, this paper considers in perspectives, immigration practices in selected liberal democratic states-the United States of America, Australia and France whose deportation reality offers significant similarities with the UK in immigration control and detention pending expulsion. Finding as it did, the paper illustrates that crimmigration in particular and immigration enforcement and control in general, serve as vehicles for enhancing and sustaining expulsion of migrants. This practice, it is argued, queries the liberal democratic ideals of fairness in particular and compliance to international human rights standards in general.

Published in	International Journal of Law and Society (Volume 3, Issue 2) This article belongs to the Special Issue Immigration Control, Citizenship, the Interplay of Sovereignty and the Vicissitudes of the Hostile Environment
DOI	10.11648/j.ijls.20200302.14
Page(s)	68-77
Creative Commons	This is an Open Access article, distributed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted use, distribution and reproduction in any medium or format, provided the original work is properly cited.
Copyright	Copyright © The Author(s), 2020. Published by Science Publishing Group

Keywords

Expulsion, Crimmigration, Detention, Liberal Democracy and Sovereignty

References

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[67]	Juliet P. Stumpf, ‘Doing Time: Crimmigration Law and the Perils of Haste’ (2011) 58 UCLA Law Review 1705, 1710.
[68]	See UK Borders Act 2007, s 32 and 33.
[69]	Explanatory Notes to the UK Borders Act 2007.
[70]	See UK Borders Act 2007 s 33 (2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach—(a) a person's Convention rights, or (b) the United Kingdom's obligations under the Refugee Convention. (3) Exception 2 is where the Secretary of State thinks that the foreign criminal was under the age of 18 on the date of conviction.
[71]	Section 55 of the Borders, Citizenship and Immigration Act 2009 provides for the duty regarding the welfare of children which mirrors Article 3 (1) of UN Convention of the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) UNTS 1577 (CRC).
[72]	Rocky Gurung v SSHD [2012] EWCA Civ 62; SS (Nigeria) v SSHD [2013] EWCA Civ 550; AJ (Bangladesh) v SSHD [2013] EWCA Civ 493; Richards v SSHD [2013] EWCA Civ 244.
[73]	Stephen H. Legomsky, ‘The New Path of Immigration Law: Asymmetric Incorporation of Criminal Justice Norms’ (2007) 64 Walsh and Lee Law Review 469, 1727.
[74]	See the United Kingdom’s 1971 Act, the 2009 Act, the 2004 Act and the 2007 Act.
[75]	Cf. the U.S.’s sections, 101 and 237 of the Immigration and the Nationality Act 2006 and section 108 of the Illegal Immigration Reform and Responsibility Act 1996.
[76]	IIRIRA increased deportations by the expansion of categories of migrants subject to deportation; see J Ryan Moore, ‘Reinterpreting the Immigration and Nationality Act’s Categorical Bar to Discretionary Relief for “Aggravated Felons” in Light of International Law: Extending Beharry v Reno’ (2004) 21 Arizona Journal of International and Comparative Law 535, 537; see also Jacqueline Hagan, Brianna Castro & Nestor Rodriguez, ‘ The Effect of U.S. Deportation Policies on Immigrant Families and Communities: Cross-Border Perspectives’ (2009-2010) 88 North Carolina Law Review 1799, 1800.
[77]	See the Explanatory Note to the UK Borders Act 2007, Part 5.
[78]	See Secretary of State for the Home Department, ‘Memorandum to the Home Affairs Committee: Post-legislative Scrutiny of the UK Borders Act 2007 (Cm8459 October 2012)
[79]	See commentaries by Jacqueline Hagan, Karl Eschbach & Nestor Rodriguez, ‘U.S. Deportation Policy, Family Separation and Circular Migration’ (2008) 42 International Migration Review 64, 65; Nancy Morawetz, ‘Understanding the Impact of the 1996 Deportation Laws and the Limited Scope of Proposed Reforms’ (2000) 113 Harvard Law Review 1936, 1955.
[80]	See Immigration Act 1971, s 3 (5) (a) and the UK Borders Act 2007, s 32 (4).
[81]	Elizabeth C Borja, ‘Brief Documentary History of the Department of Homeland Security 2001 – 2008’ (Homeland Security-History Office) accessed 13 December 2013.
[82]	See Home Office UK Border Agency, ‘Our work in your region’ accessed 13 December 2013.
[83]	Alan Watson, Legal Transplants: An Approach to Comparative Law (2nd edn, University of Georgia Press, 1993) 29 (Legal transplant- a movement of a system of law from one country to the other usually a diffused law); David Dolowitz, Stephen Greenwold and David Marsh, ‘Policy Transfer: Something Old, Something New, Something Borrowed, But Why Red, White And Blue?’ (1999) 52 (4) Parliamentary Affairs 719, 720.
[84]	Cf. section 33 of the 2007 Act with decisions in Rocky Gurung v SSHD, SS (Nigeria) v SSHD and AJ (Bangladesh) v SSHD.
[85]	Nancy Morawetz, ‘Understanding the Impact of the 1996 Deportation Laws and the Limited Scope of Proposed Reforms’ (2000) 113 Harvard Law Review 1936, 1943.
[86]	See comments by Jennifer Chacon, ‘A Diversion of Attention? Immigration Courts and the Adjudication of Fourth and Fifth Amendment Rights’ (2010) 59 Duke Law Journal 1563, 1571.
[87]	Jennifer Lee Koh, ‘Waiving Due Process (Goodbye): Stipulated Orders of Removal and the Crisis in Immigration Adjudication’ (2012-2013) 91 North Carolina Law Review 475, 481.
[88]	Peter L. Markowitz, ‘Deportation is Different’ (2010-2011) 13 University of Pennsylvania Journal of Constitutional Law 1299, 1302.
[89]	Section 12 of the Migration Act 1958 was amended by section 10 of the Migration Amendment Act 1983.
[90]	Michelle Foster, ‘An “Alien” By the Barest of the Threads”-The Legality of the Deportation of Long-Term Residents From Australia’ (2009) 33 Melborne University Law Review 483, 507.
[91]	Clemence Richard and Nicolas Fischer, ‘A legal disgrace? The retention of deported migrants in contemporary France’ (2008) 47 Social Science Information 581, 590.
[92]	See Code de l’entrée et du sejour des etrangers et du droit d’asile [Code on the Entry and Stay of Foreigners and on the Right of Asylum] (France) art L521-3 [Nawaar Hassan trans] cited in Michelle Foster, ‘An “Alien” By the Barest of the Threads”-The Legality of the Deportation of Long-Term Residents From Australia’ (n1304); see also Cimade, ‘Centres et locaux de retention administrative, Rapport 2007 (2008) cited in Clemence Richard and Nicolas Fischer, ‘A legal disgrace? The retention of deported migrants in contemporary France’ (2008) 47 Social Science Information 581, 598.

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Cosmas Ikegwuruka, Ugonna Chimnonyerem Nkwunonwo. (2020). ‘As It Was in the Beginning’: An Examination of the Convergence, Divergence and Dilemmas of Immigration Practices in Some Selected liberal Democratic States. International Journal of Law and Society, 3(2), 68-77. https://doi.org/10.11648/j.ijls.20200302.14

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Cosmas Ikegwuruka; Ugonna Chimnonyerem Nkwunonwo. ‘As It Was in the Beginning’: An Examination of the Convergence, Divergence and Dilemmas of Immigration Practices in Some Selected liberal Democratic States. Int. J. Law Soc. 2020, 3(2), 68-77. doi: 10.11648/j.ijls.20200302.14

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Cosmas Ikegwuruka, Ugonna Chimnonyerem Nkwunonwo. ‘As It Was in the Beginning’: An Examination of the Convergence, Divergence and Dilemmas of Immigration Practices in Some Selected liberal Democratic States. Int J Law Soc. 2020;3(2):68-77. doi: 10.11648/j.ijls.20200302.14

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@article{10.11648/j.ijls.20200302.14,
  author = {Cosmas Ikegwuruka and Ugonna Chimnonyerem Nkwunonwo},
  title = {‘As It Was in the Beginning’: An Examination of the Convergence, Divergence and Dilemmas of Immigration Practices in Some Selected liberal Democratic States},
  journal = {International Journal of Law and Society},
  volume = {3},
  number = {2},
  pages = {68-77},
  doi = {10.11648/j.ijls.20200302.14},
  url = {https://doi.org/10.11648/j.ijls.20200302.14},
  eprint = {https://article.sciencepublishinggroup.com/pdf/10.11648.j.ijls.20200302.14},
  abstract = {This paper holds the view that the burgeoning phenomenon of immigration control sits uncomfortably on the fault line separating the prerogatives of State sovereignty from the rights of non-citizens regardless of the broad discretion of States to control immigration. Using liberal democratic ideologies, the paper expresses that, there is in existence, a tension between the right to liberty of migrants against the broadly unfettered rights of States to control the admission and expulsion of migrants conferred on States by national and international law. Drawing from law and policy, this paper considers in perspectives, immigration practices in selected liberal democratic states-the United States of America, Australia and France whose deportation reality offers significant similarities with the UK in immigration control and detention pending expulsion. Finding as it did, the paper illustrates that crimmigration in particular and immigration enforcement and control in general, serve as vehicles for enhancing and sustaining expulsion of migrants. This practice, it is argued, queries the liberal democratic ideals of fairness in particular and compliance to international human rights standards in general.},
 year = {2020}
}

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T1  - ‘As It Was in the Beginning’: An Examination of the Convergence, Divergence and Dilemmas of Immigration Practices in Some Selected liberal Democratic States
AU  - Cosmas Ikegwuruka
AU  - Ugonna Chimnonyerem Nkwunonwo
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AB  - This paper holds the view that the burgeoning phenomenon of immigration control sits uncomfortably on the fault line separating the prerogatives of State sovereignty from the rights of non-citizens regardless of the broad discretion of States to control immigration. Using liberal democratic ideologies, the paper expresses that, there is in existence, a tension between the right to liberty of migrants against the broadly unfettered rights of States to control the admission and expulsion of migrants conferred on States by national and international law. Drawing from law and policy, this paper considers in perspectives, immigration practices in selected liberal democratic states-the United States of America, Australia and France whose deportation reality offers significant similarities with the UK in immigration control and detention pending expulsion. Finding as it did, the paper illustrates that crimmigration in particular and immigration enforcement and control in general, serve as vehicles for enhancing and sustaining expulsion of migrants. This practice, it is argued, queries the liberal democratic ideals of fairness in particular and compliance to international human rights standards in general.
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Author Information

Cosmas Ikegwuruka

Almond Legals-immigration, Asylum and Human Rights Lawyers & Researchers, London, UK
Ugonna Chimnonyerem Nkwunonwo

Department of Geoinformatics and Surveying, University of Nigeria Enugu Campus, Enugu, Nigeria

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Cosmas Ikegwuruka, Ugonna Chimnonyerem Nkwunonwo. (2020). ‘As It Was in the Beginning’: An Examination of the Convergence, Divergence and Dilemmas of Immigration Practices in Some Selected liberal Democratic States. International Journal of Law and Society, 3(2), 68-77. https://doi.org/10.11648/j.ijls.20200302.14

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Cosmas Ikegwuruka; Ugonna Chimnonyerem Nkwunonwo. ‘As It Was in the Beginning’: An Examination of the Convergence, Divergence and Dilemmas of Immigration Practices in Some Selected liberal Democratic States. Int. J. Law Soc. 2020, 3(2), 68-77. doi: 10.11648/j.ijls.20200302.14

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Cosmas Ikegwuruka, Ugonna Chimnonyerem Nkwunonwo. ‘As It Was in the Beginning’: An Examination of the Convergence, Divergence and Dilemmas of Immigration Practices in Some Selected liberal Democratic States. Int J Law Soc. 2020;3(2):68-77. doi: 10.11648/j.ijls.20200302.14

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@article{10.11648/j.ijls.20200302.14,
  author = {Cosmas Ikegwuruka and Ugonna Chimnonyerem Nkwunonwo},
  title = {‘As It Was in the Beginning’: An Examination of the Convergence, Divergence and Dilemmas of Immigration Practices in Some Selected liberal Democratic States},
  journal = {International Journal of Law and Society},
  volume = {3},
  number = {2},
  pages = {68-77},
  doi = {10.11648/j.ijls.20200302.14},
  url = {https://doi.org/10.11648/j.ijls.20200302.14},
  eprint = {https://article.sciencepublishinggroup.com/pdf/10.11648.j.ijls.20200302.14},
  abstract = {This paper holds the view that the burgeoning phenomenon of immigration control sits uncomfortably on the fault line separating the prerogatives of State sovereignty from the rights of non-citizens regardless of the broad discretion of States to control immigration. Using liberal democratic ideologies, the paper expresses that, there is in existence, a tension between the right to liberty of migrants against the broadly unfettered rights of States to control the admission and expulsion of migrants conferred on States by national and international law. Drawing from law and policy, this paper considers in perspectives, immigration practices in selected liberal democratic states-the United States of America, Australia and France whose deportation reality offers significant similarities with the UK in immigration control and detention pending expulsion. Finding as it did, the paper illustrates that crimmigration in particular and immigration enforcement and control in general, serve as vehicles for enhancing and sustaining expulsion of migrants. This practice, it is argued, queries the liberal democratic ideals of fairness in particular and compliance to international human rights standards in general.},
 year = {2020}
}

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TY  - JOUR
T1  - ‘As It Was in the Beginning’: An Examination of the Convergence, Divergence and Dilemmas of Immigration Practices in Some Selected liberal Democratic States
AU  - Cosmas Ikegwuruka
AU  - Ugonna Chimnonyerem Nkwunonwo
Y1  - 2020/05/28
PY  - 2020
N1  - https://doi.org/10.11648/j.ijls.20200302.14
DO  - 10.11648/j.ijls.20200302.14
T2  - International Journal of Law and Society
JF  - International Journal of Law and Society
JO  - International Journal of Law and Society
SP  - 68
EP  - 77
PB  - Science Publishing Group
SN  - 2640-1908
UR  - https://doi.org/10.11648/j.ijls.20200302.14
AB  - This paper holds the view that the burgeoning phenomenon of immigration control sits uncomfortably on the fault line separating the prerogatives of State sovereignty from the rights of non-citizens regardless of the broad discretion of States to control immigration. Using liberal democratic ideologies, the paper expresses that, there is in existence, a tension between the right to liberty of migrants against the broadly unfettered rights of States to control the admission and expulsion of migrants conferred on States by national and international law. Drawing from law and policy, this paper considers in perspectives, immigration practices in selected liberal democratic states-the United States of America, Australia and France whose deportation reality offers significant similarities with the UK in immigration control and detention pending expulsion. Finding as it did, the paper illustrates that crimmigration in particular and immigration enforcement and control in general, serve as vehicles for enhancing and sustaining expulsion of migrants. This practice, it is argued, queries the liberal democratic ideals of fairness in particular and compliance to international human rights standards in general.
VL  - 3
IS  - 2
ER  -

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