Part I - The Failure of Rights

2 The Unmaking of Citizens Shifting Borders of Belonging

Kristy A. Belton and Jamie Chai Yun Liew

Introduction

The world’s population currently stands at 7.8 billion, and every day millions are born who automatically acquire the citizenship of a particular state. Few question the routineness of the citizenship acquisition process (whether through a citizen parent or through birth on a specific state’s territory). Even fewer question the necessity of possessing citizenship or the state’s sovereign right to determine who should belong and how. We generally take the particular rights, freedoms, and protections associated with citizenship for granted and cannot fathom what a world without citizenship, at least as currently conceived, would look like. Yet citizenship is not necessarily a neutral and stable status upon which to base rights, freedoms, and protections. It is also not a status available to all. As this chapter illustrates, citizenship is precarious and has never been a secure foundation upon which to base human rights. In the securitized world of the twenty-first century, this instability has heightened, especially for minorities.

To make this argument, the chapter is divided into three sections. The first section explains how citizenship arose in international practice and law and how states translated international practice into defined nationality laws in the domestic sphere. This section highlights how, before it became a status to which human rights attached, citizenship was, first and foremost, an international ordering principle. The second section demonstrates how states have historically excluded various groups, typically minorities, from enjoyment of full citizenship status, thereby endangering the access of these groups to human rights enjoyment. The third section provides contemporary examples of citizenship deprivation and denial, highlighting the myriad justifications that states use to deny and deprive people of citizenship.

Citizenship in International and Domestic Law

Citizenship may be understood in many ways. For the purpose of this chapter, it is defined as the legal bond of attachment between a person and a state. It serves as a mobile border, demarcating who is from where and how said person should be treated when outside the borders of her state. In the modern era, it has become an international ordering principle, which rests on the notion of states as self-contained political units that govern defined territories. The emergence of sovereign, independent states that governed their own internal affairs is typically traced to Europe and the Peace of Westphalia, which ended the Thirty Years’ War.¹ The peace treaties cemented the demise of the overarching power of the Catholic Church and the Holy Roman Empire and heralded the advent of an international legal system where autonomous states became masters of their own domain and recognized each other’s authority over territory.²

Although many trace the beginning of the present international world order to the Peace of Westphalia, scholars acknowledge that the concepts of statehood and state sovereignty were not simply constructed, endorsed, and applied at this point in time. Instead, the treaties sanctioned or confirmed an interstate system that was already developing, or in existence, out of necessity as a consequence of negotiating peace.³ State sovereignty thus emerged as the dominant organizing principle of the Peace of Westphalia because of the growing recognition that polities were organizing themselves in this way.

Furthermore, these peace treaties not only addressed authority over territory but also endorsed authority over individuals, referring to “vassals,” “subjects,” “soldiers,” “inhabitants,” “servants,” “people,” and others.⁴ Passages referring to such people in the peace treaties were written with the intention to provide protection. That is, state sovereignty included not only the unencumbered right to rule over people but the reciprocal responsibility of protecting them as well.

What began as political practice in early Europe solidified in international legal doctrine in the 1930s. The 1930 Convention on Certain Questions Relating to the Conflict of Nationality Law established that it was “in the general interest of the international community to secure that all its members should recognize that every person should have a nationality,”⁵ and it did not permit the loss of citizenship unless (or until such time that) a person acquired another one. Only a few years later, the 1933 Montevideo Declaration articulated that one of the criteria for statehood was the existence of a permanent population. This permanent population became the citizenry. Later United Nations human rights treaties⁶ would institute the significance of citizenship through the establishment of a human right to a nationality.⁷

Citizenship is so important from an international legal framework that no right to be voluntarily stateless (without citizenship) exists; states are not allowed to deprive an individual of citizenship arbitrarily; and states are prohibited from allowing their citizens to become charges on other states. Citizenship is thus much more than a conduit for rights access. It is the basis upon which states formally set the borders of belonging and through which they are able to conduct what Ceciliano-Navarro, Golash-Boza, and Rubén González call a “global apartheid” in Chapter 6. Despite the importance of citizenship as an international ordering principle, no international organization exists, whether as creator, arbiter, or enforcer, of citizenship laws for any state. Instead, the state has the “reserve domain,” or final say, on whether to grant, deny, or revoke citizenship, and on crafting the laws, processes, and legal institutions under which a person is deemed to be a citizen. It is within this “sovereign” space that the gap between the international human right to citizenship and its enjoyment in practice is most evident.

In general, there are two main ways to acquire citizenship globally: by birth and, to a lesser extent, through naturalization. Birthright citizenship can be obtained (a) by being born within a state or its territories (jus soli) or (b) by being born to a parent who has a particular citizenship (jus sanguinis). All countries around the world offer a form of jus soli or jus sanguinis citizenship, but not all provide it absolutely. Exceptions vary. In the jus soli arena, for example, states exclude birthright citizenship to children born of foreign diplomats. And in places such as the Dominican Republic, children born in the country to parents who are classified as “in transit,” which includes people with expired residency visas and undocumented workers, are excluded from acquiring citizenship via jus soli.

Still other states provide that both jus soli and jus sanguinis criteria must be met. For instance, France limits birthright citizenship to children born in France to a French parent or to a parent also born in France. Finally, some states offer a graduated process by which children born in the state to noncitizen parents may be eligible for citizenship by a certain age once residency requirements are fulfilled. For example, Israel allows persons between the ages of eighteen and twenty-one to acquire citizenship if they were born in Israel and resided there for more than five years. States such as Cambodia and Germany, on the other hand, only confer jus soli citizenship if a child is born to noncitizens who are residing there legally.

When it comes to jus sanguinis or acquisition of citizenship by “right of blood,” restrictions may include limiting citizenship to the first generation or to those born of a citizen father. Canada, for example, limits jus sanguinis to the “first generation.” Thus, if a Canadian citizen, who herself was born outside Canada, gives birth to a child outside Canada, her child will not be Canadian. In the Bahamas, only male citizens can pass on their citizenship to children born outside the country if they are married to a noncitizen. Bahamian women married to noncitizens who give birth to children outside the Bahamas have no similar right to pass on their citizenship. Numerous other exceptions exist that illustrate how citizenship is not an automatically acquired status for all at birth and is, therefore, an inadequate foundation upon which to base human rights. Furthermore, as the next section illustrates, states also exclude certain groups from citizenship when it serves their interests.

Citizenship and Its Exclusions

States have long erected barriers, indirectly and directly, to citizenship. Throughout history, and in modern times, legal categories of exclusions or exceptions have been created to prevent certain people from acquiring citizenship and to provide normative strength to the idea that only some are purportedly deserving of citizenship. In many cases, some may experience exclusion by virtue of intersecting statuses – because they are an Indigenous person who is also a woman, or a person who is of an ethnic minority group that has also been deemed a security risk to the state (consider the Kurds, for example). What follows are a few examples of groups who have not always found themselves fully captured within the state’s borders of formal belonging. Many are, as Tendayi Bloom discusses in Chapter 10, individuals who are in both a citizen and a noncitizen relationship to the state.

Indigenous Peoples

Despite already living on the land when Europeans arrived, Indigenous peoples have not always been considered legal citizens of colonizing states. In Canada, for example, although the 1947 Citizenship Act provided that British subjects born in Canada prior to 1947 were Canadian citizens, First Nations and Inuit were not considered British subjects and therefore were not considered citizens. Furthermore, colonial governments created differential statuses for Indigenous peoples. In Canada, the Indian Act⁸ created a system of reserves and registered Indigenous persons and defined how the Canadian government would treat certain Indigenous persons. A similar story played out in the United States and Australia where Native Americans and Aborigines were excluded from citizenship for much of these states’ early history.⁹ Indigenous peoples’ experience thus shows how the law has constructed persons as not citizens or produced their citizenship in ways that differ from their legal traditions or entitlements.

Ethnic and Racial Minorities

States have also enacted measures to restrict access to citizenship to racialized persons or persons with a particular ethnicity. In the United States and Canada, for example, Asian people were subject to open hostility and discrimination that led to the enactment of legislation to prevent them from coming to North America. In the United States, the 1882 Chinese Exclusion Act prevented Chinese immigration to the United States.¹⁰ Canada followed the Americans by first issuing a report by the Canadian Royal Commission on Chinese and Japanese Immigration that stated Asians were “unfit for full citizenship … obnoxious to a free community and dangerous to the state.”¹¹ Following this report, the Canadian Parliament voted to increase the Chinese head tax to $500, an entrance fee meant to deter the migration of Chinese people to Canada. Furthermore, during the Second World War, Japanese Canadians and Japanese Americans were interned in concentration camps all over North America. The experience of ethnic and racial minorities, also explored in Chapter 6 in the context of migration, highlights how the law can be used to actively discriminate against certain groups and prevent them from becoming citizens.

Women

Women, who typically make up more than half of any state’s population, have historically been treated differently when it comes to the ability to acquire or lose citizenship, as well as to confer citizenship on their children. Historically, women were seen as the property of male citizens. As a consequence, they often lost their birthright citizenship upon marriage to a noncitizen because they were assumed to have taken on the foreign husband’s citizenship. Although the 1957 Convention on the Nationality of Married Women prohibited this practice,¹² gender discrimination in nationality laws remains a problem today. Twenty-seven countries deny mothers the equal right to confer nationality on their children and around fifty have other gender-discriminatory nationality provisions that place their female citizens on an unequal footing with their male counterparts. Women’s citizenship history and experience illustrate the property-like features of citizenship and underscore the patriarchal current that undergirds it.

The Stateless

Stateless people, or those who are not recognized under the operation of any state’s nationality law, typically are born and reside within a state that excludes them from citizenship. More than fifteen million people are estimated to be stateless globally. They suffer a host of human rights violations and impingements upon their ability to be self-determining agents because they are citizens of nowhere.¹³ Although multiple pathways to statelessness exist,¹⁴ no international norm exists recognizing a person’s right to be voluntarily stateless. In fact, international law is clear that each person should have a citizenship and that before a person is stripped of citizenship, she or he must have access to another state’s citizenship first.

Even before the Universal Declaration of Human Rights asserted each person’s right to a nationality, the 1930 Convention on Certain Questions Relating to the Conflict of Nationality Law established that it was “in the general interest of the international community to secure that all its members should recognize that every person should have a nationality.”¹⁵ Akin to the later 1961 Convention on the Reduction of Statelessness, the 1930 Convention does not permit the loss of citizenship unless or until such time that a person acquires another one.¹⁶ Despite this, many states have resisted conferring citizenship on stateless persons, claiming they are the citizens of other states even though they have no citizenship by operation of law to any state. The next section describes how even those with citizenship status may fall on the wrong side of state interests and lose this purportedly fundamental status.

Citizenship Deprivation

It is one practice to deny individuals citizenship,¹⁷ as in many of the aforementioned examples, and it is another practice to deprive individuals of the citizenship they hold. Citizenship deprivation (or withdrawal)¹⁸ has its roots in former practices of exile and banishment. Although states are no longer permitted to allow their citizens to become charges on other states, they are allowed to withdraw citizenship on a number of grounds, including committing a crime or engaging in acts deemed “threatening” or “disloyal” to the state, seeking refuge elsewhere, converting to another religion, or failing to renew a passport, among other reasons.¹⁹

Moreover, the 1961 Convention on the Reduction of Statelessness,²⁰ which aims to reduce statelessness globally, is clear that citizenship deprivation is permissible when an individual has acted “inconsistently with his duty of loyalty to the Contracting state” by rendering services to another state, acting in a way that is “seriously prejudicial to the vital interests of the state,” or declaring allegiance to another state, among other reasons.²¹ As long as these grounds are not “arbitrary” (and it is not always clear what a state will deem arbitrary in practice), the state has the sovereign right to deprive a person of his/her citizenship and render the individual stateless.²² Moreover, states that engage in citizenship withdrawal typically deny that they are rendering individuals stateless. They argue that the individuals deprived of citizenship are dual nationals or have the ability to apply for citizenship in another state through operation of that other state’s law. As the following examples show, however, this is not always the case.

National Security

Despite the permissibility of citizenship deprivation in the international arena, and the fact that states have occasionally engaged in this practice historically,²³ it is only recently that citizenship deprivation laws have been more vigorously implemented and strengthened, and that countries that previously had no such laws have begun to introduce them. States are now looking to “nationality policy as a tool to tackle emerging national security threats.”²⁴ For example, Austria, Azerbaijan, Bangladesh, Belgium, Israel, Russia, the Netherlands, the United Kingdom, the United States and others have either introduced citizenship deprivation measures in response to perceived national security threats or begun to more systematically apply and strengthen existing citizenship deprivation laws.²⁵

The heightened security environment that ensued post 9/11 has allowed states to situate citizenship deprivation within a national security and crimmigration²⁶ policy rationale that challenges the permanency of citizenship and turns citizens into deportable foreigners or “dangerous aliens.”²⁷ In this sense, citizenship deprivation has conceptually pushed citizenship into the realm of privilege rather than a right, and citizenship revocation has become a punitive tool.²⁸ Although the threat of a foreign enemy has always operated within a state’s modus operandi, the figure of the foreign enemy is now extended to those that hold citizenship in Western states as part of the emergence of “homegrown” terrorism.²⁹ The identification of such “enemies” within has given Western states in particular the impetus to create and use legal mechanisms to engage in citizenship deprivation.³⁰

Revocation grounds and proceedings vary by country. Some countries have legal provisions to denaturalize a citizen who obtained citizenship through fraud or misrepresentation. This is known as “civil denaturalization” in the United States and was practiced under the administrations of both George W. Bush and Barack Obama, but it has increased, and become further institutionalized, under Donald J. Trump’s administration. For instance, in February 2020, the US Department of Justice established a “Denaturalization Section,” which purportedly targets “terrorists, war criminals, sex offenders, and ‘other fraudsters.’”³¹

Increasingly, legislation is being amended to include reasons of national security, broadly worded, to encompass a wide array of threats or activities. One prominent and recent example is Jack Letts, more popularly known as “Jihadi Jack.” Letts was a dual citizen of the United Kingdom and Canada. Letts was reportedly raised in the United Kingdom, converted to Islam at the age of sixteen, and joined ISIS, or the Islamic state abroad, a jihadist terror group known for its brutal mass killings.³² Letts’ overseas activities are not substantiated, but in an interview with BBC, he stated that he was an enemy of the United Kingdom, that he thought he was doing something good, and that he had made a big mistake.³³ While he was imprisoned in a Kurdish jail in northern Syria in August 2019, the United Kingdom revoked Letts’ citizenship.

The move to strip Letts of UK citizenship blindsided Canada. The Minister of Public Safety in Canada commented, “Canada is disappointed that the United Kingdom has taken this unilateral action to off-load their responsibilities,” but also added that they had “no legal obligation to facilitate” the return of Canadian citizens detained in Syria.³⁴ Former defense minister of the United Kingdom, Tobias Ellwood, agreed, stating that citizenship revocation “shunts the responsibility elsewhere” when many persons were “radicalised here in the UK.”³⁵ The UK Home Office held, however, that “[t]his power is one way we can counter the terrorist threat posed by some of the most dangerous individuals and keep our country safe.”³⁶

While Letts is fortunate because he held dual citizenship, there are two normative implications to the United Kingdom’s move to revoke citizenship of someone it deems as a terrorist threat. The first is that it legitimizes the very act of revocation even where it does not leave a person stateless. It thus makes citizenship probationary and precarious. Second, it legitimizes the use of citizenship deprivation as a form of banishment or punishment and allows the state to avoid responsibility for the acts of its citizens.

Another prominent but more problematic example is that of Shamima Begum, a twenty-year-old woman who at age fifteen left the United Kingdom to join the Islamic state.³⁷ In February 2019, the United Kingdom revoked her citizenship. The Special Immigration Appeals Commission, a tribunal that hears national security cases, reasoned that Begum could be stripped of her citizenship because she would not be left stateless despite the fact that Bangladesh had stated that it did not recognize her as a citizen.³⁸ The Commission held that Begum was “a citizen of Bangladesh by descent.”³⁹ Begum’s lawyer has appealed the decision.

This practice reinforces the normative move to legitimize citizenship deprivation where national security concerns exist, but, troublingly, it also shows how the legal definition of statelessness may be eroding. In particular, the legal finding that Begum was a national of another state was not based on any evidence, but on speculation that she could be granted citizenship by another state (in this case, Bangladesh) by an examination of its laws.

Criminal Behavior

Aside from national security or terrorism concerns, citizenship withdrawal may be premised upon individuals’ criminal behavior. Take for example the case of Canada v. Budlakoti.⁴⁰ Budlakoti was born and raised in Canada. Due to his criminal convictions, Budlakoti was found inadmissible under Canada’s Immigration and Refugee Protection Act. Budlakoti challenged this finding by asserting he was a Canadian citizen. The Immigration Division of the Immigration and Refugee Board (IRB), however, held that he was not a citizen as per the Citizenship Act since he fell into the exception that children born of parents under the employment of a foreign government do not enjoy birthright citizenship.

The Immigration Division determined that Budlakoti’s parents were working for officials of the Indian Consulate in Canada at the time he was born, therefore making him ineligible for citizenship by birth. Budlakoti unsuccessfully challenged this decision. In asserting he would be stateless as a result of the Immigration Division’s findings, the Federal Court of Appeal held that “[h]e is not yet stateless” since Budlakoti “can take steps to apply for citizenship in India and in Canada.”⁴¹ This finding is particularly troubling given that the Court acknowledged that the Indian Consulate had refused to recognize Budlakoti as a citizen and that the Canadian government was involved in litigation to make him removable from Canada.

Minority Status

States have also used the tool of citizenship deprivation against political opponents, human rights defenders, protestors, and minority groups (as defined by their religion, ethnicity, race, or culture). For example, Rohingya have been stripped of their citizenship and denied any entitlement to citizenship in Myanmar since 1982. Many Rohingya are stateless as a result of a deliberate change in citizenship law that turned them into illegal immigrants within their own country. The loss and denial of citizenship is not a benign act. At a minimum it means Rohingya cannot open a bank or a cell phone account, register births, marriages or deaths, and, more seriously, it has also meant difficulties in accessing health care, education, employment, and freedom of movement.

More concerning is that citizenship deprivation has cast the Rohingya as outsiders and justified their oppression and institutionalized exclusion, leading to genocide. The state has thus harnessed the legal fact of statelessness to engage in violence, displacement, and killing of its Rohingya population. Indeed, on January 23, 2020, in response to legal action taken by Gambia, which had accused Myanmar of genocide, the International Court of Justice took a significant step by issuing a preliminary order that instructed Myanmar to take immediate measures to prevent the genocide of its stateless Rohingya Muslim minority.⁴²

Citizenship withdrawal also takes on an ethnic dimension in the Dominican Republic, which has a long history of discriminating against individuals of Haitian descent among its citizenry. In 2013, the Dominican state systematically institutionalized this discrimination by revoking the citizenship of approximately 200,000 Dominicans of Haitian descent through Constitutional Court decision TC/0168/13.⁴³ This decision permitted civil registries to audit birth registry books as far back as 1929 to find out whether a person’s ancestor had used a non-authorized document⁴⁴ to secure a legal status within the Dominican state. If said ancestor was deemed to have used an unauthorized document, then that person’s Dominican descendants were stripped of citizenship.

Due to international concern about the judicial decision and its retroactive effect, the Dominican government implemented a path to regularization for those citizens who had been rendered stateless. This regularization plan created different classes of denationalized persons, led to the deportation of many, and has yet to fully restore citizenship to those who have legitimate claims to it.

Whereas in the Dominican case a regularization plan was established for those stripped of citizenship, Bahrain has chosen deportation for many of those it has stripped of citizenship. Since 2012, at least 990 Bahrainis have lost their citizenship through court decisions or executive orders, leaving most persons stateless and leading to their deportation. Among those stripped of citizenship are human rights defenders, political activists, journalists, and religious scholars. Recently, a mass trial convicting 139 people of terrorism charges led to the wholesale revocation of citizenship of those persons. This trial demonstrates that Bahrain’s authorities are increasingly relying on citizenship withdrawal as a tool of repression and as a means to eliminate opposition.

Conclusion

Although citizenship as a status is an accepted international ordering principle, it is not, and never has been, a status that is equally accessible to all. For those who were denied citizenship from birth, citizenship has always been unattainable. For others, their belonging to a particular minority group – both historically and today – has prevented their access to full citizenship in practice, even if they were (or are) nominally recognized as citizens under domestic law. Citizenship is not only unevenly applied as a principle in practice, but it is not a stable, enduring, or permanent status either. Those who have been stripped of citizenship under the rationale of national security and other such prerogatives can attest to this.

Perhaps citizenship was never meant to be more than an international ordering principle of people(s) and we have tied notions of human rights, equality and justice to a concept that was never built to hold them. As several authors in this volume attest, concepts of citizenship and noncitizenship perpetuate distorted perceptions of who belongs and how they should be treated. In essence, by bestowing states with the sovereign prerogative to define who belongs where, we have allowed an exclusionary and precarious status to hold far too much influence over people’s life chances and furthered global conditions of injustice.

3 Zero Humanity The Reality of Current US Immigration Policy toward Central American Refugee Children and Their Families

Jacqueline Bhabha

Introduction

Many months have passed since the Trump administration’s initial ruthless separation of more than 4,300 babies and children from their parents at the United States’ southern border.¹ Since that time, partly under the guise of public health concerns prompted by the COVID-19 pandemic, the administration has continued to impose draconian rights-violative policies on migrant children – not just family separation but summary deportation.² Irrespective of changing circumstances, the underlying administrative philosophy – that deterrence is the solution to humanitarian emergencies that drive forced migration – remains in place. This philosophy subordinates American constitutional values and international obligations to non-citizens to the instrumental goal of reducing access to US soil for people fleeing life-threatening violence, however strong their claim to protection.

By doggedly implementing policies that block, detain, deport, and humiliate humanitarian migrants, the United States is participating in what the authors of Chapter 6 in this volume have usefully termed “a system of global apartheid.” Moreover, just as South African apartheid encouraged the development of a movement to overthrow racist state oppression, local and underground at first but global over time, so is global apartheid encouraging the development of alternatives to racist migration exclusion. Smuggling networks, caravans, global migration compacts, trafficking rings, Facebook-mediated migration itineraries, and heroic individual voyages are just some of the current modalities. Others will develop over time, as vigorous and ambitious populations, intent on saving their lives and sharing the all-too-visible bounty generated by a global capitalist commons, refuse enduring and oppressive sequestration. But, as it was in South Africa, the process is protracted and arduous, and hugely costly in terms of human lives and suffering. As they tried to access safety, nearly 19,000 people drowned in the Mediterranean from 2014–2019,³ 2,243 perished in the deserts between the United States and Mexico, and tens of thousands faced excruciating detention conditions in rogue jails in Libya.⁴

The US-bound exodus of Central American children and their families, from some of the poorest and most violent countries in the world, and the US government’s responses provide a case study of global apartheid in action. In what follows, after outlining the United States’ key legal obligations toward non-citizens, I will track some of the policies deployed by the Trump administration to block or otherwise deter the entry of humanitarian migrant children and families. I will suggest that these policies are not only inhumane and in violation of binding legal obligations, but also futile. I will conclude by outlining what I consider more rights-respecting and effective alternatives.

The United States’ International and Constitutional Obligations to Non-citizens

The United States is an outlier when it comes to ratification of international treaties. No better illustration exists than the situation regarding its stance on children’s rights. Alone among member states of the United Nations, the United States has not ratified the 1989 UN Convention on the Rights of the Child (CRC), the cardinal international human rights treaty consolidating the principles that apply to children.⁵ Central among these principles is the prohibition on discrimination and the obligation to make the child’s best interests a primary consideration in actions and policies affecting them. Because these principles have been consistently applied by an overwhelming majority of countries for well over half a century, they may be considered customary international law, and therefore cannot be disregarded by the US government.

In practice, failure to ratify the CRC has reduced the leverage of international institutions such as the Committee on the Rights of the Child and UNICEF, and US-based child rights advocates, to press for enforcement of fundamental rights for migrant children. The egregious 2018 family separation border policy would doubtless have elicited more vigorous international protest had the UN Committee on the Rights of the Child been afforded oversight.

The United States has, however, ratified other international treaties that generate powerful obligations towards persons within its jurisdiction irrespective of their citizenship status. They include the 1966 International Covenant on Civil and Political Rights (ICCPR),⁶ the 1951 Convention Relating to the Status of Refugees,⁷ and the 1984 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.⁸ Treaties are considered the supreme law of the land under the US Constitution, so government actions have to be consistent with provisions in ratified treaties.⁹ The implications of these obligations in relation to Central American children seeking protection in the United States from violence at home are multiple. One is the obligation not to subject children to arbitrary detention, whether in an immigration or any other context. Prolonged incarceration of children not charged with any criminal wrongdoing, with or without parents, violates this prohibition. Indeed, the UN High Commissioner for Refugees (UNHCR), the international agency charged with overseeing implementation of the Refugee Convention and the protection of refugees and asylum seekers, has explicitly held that “children should not be detained for immigration related purposes, irrespective of their legal/migratory status or that of their parents, and detention is never in their best interests.”¹⁰ The Human Rights Committee, the treaty body that oversees implementation of the ICCPR, addressed the issue of detention of a child and parent seeking asylum specifically in a case it adjudicated. It explained that, as a general rule, detention “should not continue beyond the period for which the State party can provide appropriate justification.” Because Australia, the country in question, failed to show that detention was the least restrictive strategy available for achieving its intended objective, it had violated its obligations.¹¹

Another treaty obligation binding on the United States is the prohibition on subjecting asylum seekers, including children, to punitive treatment.¹² Separating children from their parents clearly falls afoul of this prohibition, as does forcing child asylum seekers to await their asylum hearings in places, such as the Mexico borderland, known to be crime and violence infested. More generally, under Article 24 of the ICCPR, the United States is obliged to provide children with special “measures of protection.” From this one can infer that official policies targeting children in the United States, whatever their citizenship or immigration status, need, at a minimum, to protect their health, well-being, and development.¹³ Policies that subject children to unsanitary conditions, traumatic experiences, or situations where essential health care is unavailable violate this fundamental obligation.

Family Separation

The welcome U-turn on the blanket Trump administration family separation policy, which ripped all children away from parents entering the country without prior authorization, came fairly promptly. On June 20, 2018, two months after the presidential order that legitimized the policy, the government was forced to neutralize it. Family separation on that scale only worked as long as it was a closely guarded secret.¹⁴ Once photos of toddlers ripped from distraught parents, internment camps with children in cages, images of young children bottle feeding unrelated infants, and tapes of babies wailing while their jailers sardonically commented on the “orchestra” they were holding became public, the administration faced a watershed moment, even against the backdrop of its increasingly inhumane border control policies.¹⁵

The bipartisan storm of protest that erupted branded the government’s version of migrant deterrence as un-American. And indeed, the widely circulated images evoked the darkest days of American history – family separation under slavery, abduction of Native American children from their families, internment without trial of Japanese Americans wrongly considered enemy aliens. The images also triggered alarming expert pronouncements about the devastating, and likely long-term, impact of the traumatic separation on the mental and emotional health of the affected children. Scholars of early childhood development characterized the experiences willfully imposed on the separated children as “toxic stress,”¹⁶ known to affect neural pathways in the brain in young children and to lead to grave risks such as emotional instability, high anxiety, suicidal ideation, and prolonged depression. Experts pointed out that the terror of separation from a parent and removal to an unfamiliar, punitive location for an indefinite time, without explanation or family contact, could cause life-long damage.¹⁷ Predictably, accounts of serious mental distress ensued.¹⁸

Though the president has been forced to change course on family separation itself, it is not clear that his administrators will be able to rectify the immense harm done anytime soon. The instructions they are supposed to abide by are clear. On June 27, 2018, in a case brought by the American Civil Liberties Union, a district court judge in San Diego decided that family separation was unconstitutional, that separated children should be promptly reunified with their parents (within fourteen days for those under five, within thirty days for older children), that parents not yet in contact with their separated children should be provided with telephonic contact within ten days, and that no parents should be deported without their consent prior to reunification with their separated children.¹⁹

However, government officials were unable to comply with the court order. Astoundingly, no clear or centralized tracking system had been put in place to document and register each child taken from their parent into federal custody, no alien registration or other identifying number was given to parents to enable them to trace their children’s whereabouts, no cross-referencing system linked separated parent and child, and no liaison with consular authorities was established to ensure diplomatic contact between vulnerable foreign nationals and their national representatives. As the San Diego judge hearing the ACLU case, Judge Dana M. Sabraw, bitingly commented: “The unfortunate reality is that under the present system, migrant children are not accounted for with the same efficiency and accuracy as property.”²⁰ As a result the agonizing separation of parents and children continued for weeks, in some cases months. Even worse, some families seem to have been permanently separated as already deported parents, without access to lawyers or other advisers, encounter unsurmountable difficulties reuniting with children for whom they have been given no tracking details.²¹

The indiscriminate separation of parents and legal guardians from children accompanying them was stopped by public outcry. But, out of the glare of public attention, family separation continues.²² The new version of the policy, so-called For Cause separation, has affected thousands of children, including very young ones. This policy involves separation of children from nonparent relatives – grandparents, older siblings, and other relatives. A few reported cases describe separations from supposedly “unsuitable” parents – in one case a father whose only disqualifying feature was a shoplifting conviction, in another, a parent who was HIV-positive.²³ Once these children are separated from their relatives – allegedly to guard against abuse or the risk of trafficking – they are placed in facilities that have attracted strong criticism. A particularly searing indictment was offered by an experienced and widely respected Columbia Law School expert. In her testimony before the US House of Representatives Committee on Oversight and Reform, Elora Mukherjee included the following account:

In June 2019, a small team of lawyers, a doctor, and I met with nearly 70 immigrant children detained … in Texas …. The children … were dirty and distressed, held for days and weeks without access to soap, showers, toothbrushes, clean clothing, adequate nutrition, or adequate sleep. Over the past year, at least seven children are known to have died in federal immigration custody or shortly after being released. These tragedies occurred after nearly a decade of no reported child deaths. Every day, children are ripped apart from their family members at our borders and detained without access to their loved ones. These separations leave young children isolated for days, weeks and months without their parents, grandparents, aunts, siblings and other familial adult caregivers.²⁴

The lawyer’s testimony to Congress included searing quotations from some of the children interviewed. A typical excerpt: “I started taking care of [a five-year-old girl] … after they separated her from her father. I did not know either of them before that. She was very upset. The workers did nothing to try to comfort her. I tried to comfort her and she has been with me ever since. [This five-year-old girl] sleeps on a mat with me on the concrete floor. We spend all day every day in that room. There are no activities, only crying” (age 15, female).²⁵

The rollout of “zero humanity” immigration policies by the Trump administration continues. Indeed it is accelerating, building on the grim foundations laid very early on by this administration – the incoherent executive orders banning Muslims,²⁶ the elimination of the Central American minors’ program designed to provide alternative routes to safety for children fleeing gang warfare and drug murders in the countries of the Northern Triangle,²⁷ the withdrawal of temporary protected status in the United States for law-abiding and self-supporting survivors of calamities in Honduras, El Salvador, and Haiti.²⁸

A central plank of the Trump administration’s immigration control agenda moving forward is large-scale and prolonged child migrant imprisonment. The government’s justification for this is twofold: a need to address unmanageable border arrivals and an intention to stop what it considers the perverse incentive, generated by the current child release policy, to transport children on dangerous journeys. Paradoxically, then, the government claims that by preventing children at serious risk of gang violence from accessing safety, it is protecting them from harm. But at the same time, post-pandemic border control policies have done exactly the opposite. They have forced children seeking asylum back across the border with no attention to their needs or vulnerabilities, they have subjected families awaiting processing of their asylum claims to indefinite delays as they await their turn in dangerous Mexican borderlands, and, despite court orders mandating release of child migrants from detention, they continue to hold significant numbers of children in crowded and unsanitary facilities.

So far, the Trump administration has been unable to implement child migrant detention on a comprehensive and “deterrent” scale because of Flores, the much-cited Supreme Court settlement that addresses child migration detention.²⁹ Flores became a household name during the family-separation debacle. When Supreme Court cases become household names, it is reasonable to suggest that a watershed US political event has taken place. So it was with Dred Scott, Brown v. Board of Education, and Roe v. Wade. And so it is with Flores. The administration is currently attempting to reverse Flores to clear the way for indefinite detention of migrant children with their families.

The Flores case has been on the books for thirty-five years. It started off as a challenge to the indefinite detention of unaccompanied child migrants in harsh facilities where children were commingled with unrelated adults. It has continued as a platform for challenging the circumstances in which migrant children, both unaccompanied and accompanied by their families, are denied their liberty in the absence of any criminal charges, but merely because of their immigration status.

Flores’s complex and tortuous history spans the past three decades of violence in Central America, from the murderous civil wars of the 1980s to the pervasive gang criminality of the twenty-first century, violence in which the United States has continually been deeply implicated. In the 1980s, the United States was a key supporter of paramilitary activity shoring up the Central American dictatorships by providing them with military training, arms, and other forms of support. Many young adults targeted by military were forced to flee; Jenny Flores was one of thousands of children left behind in El Salvador, who traveled unaccompanied to reunify with a US-based parent.³⁰

In the 1990s and through the twenty-first century, the United States has been the entity responsible for the export of gang violence from its metropolitan cities, a clear example of the spill-over effect of misguided and poorly considered punitive measures against young migrants. As discussed in more detail later, the violence has turned the so-called Northern Triangle countries of Central America, Guatemala, Honduras, and El Salvador into murder capitals of the world. The gang export process originated with the deportation from US cities, primarily Los Angeles, of sizeable numbers of convicted young Central American migrants, who had been brought to the United States as infants. These young immigrants, many living in impoverished neighborhoods and in families with parents working very long hours to make ends meet, had become ensnared in the drug and gang warfare in inner city Los Angeles. After serving their criminal sentences, they were ordered deported. By forcibly sending these long resident offenders to “homes” to which they had no ties, the United States was operating a discriminatory form of double jeopardy – piling on the draconian sanction of deportation after the young migrants had already served their criminal sentences. The United States was also creating what Dan Kanstroom memorably terms a new “American diaspora,” a community of deracinated youth who found status and a means of survival through the launch of gang warfare in the impoverished environments to which they were forced back.³¹

A new chapter in the story of punitive and misguided policies targeting child migrants from Central America is now starting with the attack on Flores. The fascinating history of the Flores case, a decades-long battleground for the protracted fight over the length and conditions of child migrant confinement, is brilliantly recounted by Phil Schrag in his new book, Baby Jails.³² He highlights the contestation between constitutional principle (children’s liberty interests), represented by activist immigrant rights advocates, and administrative discretion in the service of migrant exclusion, represented by government lawyers and their agents. As Schrag shows, government actors have attempted to keep publicity and legal representatives at arm’s length from asylum seekers in desperate need of lawyers by siting migration detention facilities in remote locations. But immigrant rights advocates have vigorously countered, organizing round-the-clock schedules to ensure pro bono client representation and track detention conditions. The book describes government officials purposely moving child migrants to undisclosed new locations just before their hearings without informing appointed lawyers to undercut the possibility of legal representation. But it also recounts determined counter-moves, such as congressional interns surreptitiously videoing conditions in detention facilities to publicize them. The message is that defending non-citizens’ basic rights to humane treatment requires much more than recitation of constitutional principle – extraordinary dedication and ingenuity have been the bedrock of moves to counter the administration’s rollback of basic legal obligations.

As of this writing, the administration has applied for a court order to reverse the Flores settlement that governs the terms of child migrant detention. Flores prohibits the incarceration of migrant children for more than twenty days, irrespective of whether or not they are with their parents. It also requires that migrant children in state custody be held in certified facilities, specifically licensed to provide appropriate care.³³ If the government is successful in reversing Flores, it will be able to indefinitely detain migrant children with their families. The fact that family detention space is being expanded to accommodate 20,000 children is ominous. It remains to be seen whether the courts and American public will tolerate this cruel policy shift any more than they did its predecessor, family separation.

Externalizing Humanitarian Responsibility

Apart from the contested litigation centered on the Flores settlement, the Trump administration is pursuing additional exclusion and deterrent strategies, all of which violate migrant children’s rights to protection and safety, and all of them under legal challenge. The common denominator for these policies is externalization – a process by which the United States exploits its economic and political heft to dislodge its humanitarian obligations onto its much poorer and more unstable neighbors.

Ferocious violence in Central America shows no signs of abating. Homicide rates in the Central Triangle remain the highest in the world – 62 homicides per 100,000 people in El Salvador (#1), 42 per 100,000 in Honduras (#5), and 26 per 100,000 in Guatemala (#16).³⁴ The region is particularly dangerous for women and children. According to the UNHCR, 82 percent of Central American women asylum seekers reported that they would face torture or persecution if returned to the region.³⁵

In the face of life-threatening circumstances, migration deterrence simply does not work. Children and their families are continuing to flee and to seek protection in the United States. More than 76,020 unaccompanied children and more than 473,000 adults and children traveling in family units were apprehended at the Unites States’ southern border in 2019, the highest numbers ever recorded.³⁶

Having failed with family separation, the administration has turned to other strategies. In 2018, then-Attorney General Jeff Sessions announced a proposal to radically curtail the scope of asylum by excluding from protection survivors of persecution by private actors, including murderous spouses and brutal gangs.³⁷ The bar for gaining asylum in those cases was already high – applicants had to demonstrate that they could not get protection from their governments, that they could not secure safety by traveling to distant sites within their own countries, and that the harm they feared rose to the very high threshold of “persecution.” So only a small proportion of the most extreme cases of domestic and gang-related violence were successful – no open door or “flood” of asylum grants had ever existed. But this new policy bars access completely. In so doing it signals a reversal of decades of American refugee practice.

The attack on asylum access has been further accelerated by three other momentous developments. The first is the June 26, 2018, majority Supreme Court judgment in Hawaii v. Trump that upheld the administration’s ban on all access to the United States for nationals from several majority-Muslim countries. As Stephen Legomsky, a widely revered legal scholar, has noted, the Supreme Court has, time and again, “declared itself powerless to review even those immigration provisions that explicitly classify on such disfavored bases as race, gender, and legitimacy.”³⁸

American citizen children will no longer be able to be joined in their country by parents, grandparents, or siblings who are, for example, Iranian or Syrian. People fleeing the devastating (US-supported) conflict in Yemen that has left 12,000 civilians dead and spread famine and disease to millions will no longer be able to join their relatives long settled in the United States. Young people from the marked countries, however able, will be denied access to US universities, and patients seeking advanced medical care will have to turn elsewhere. Another, less-remarked-upon, consequence of the Supreme Court’s judgment is its devastating impact on the LGBTI community. A significant minority of asylum applicants from the excluded countries have turned to the United States for safety in the face of barbarous anti-gay policies in their home countries – homosexuality is punishable by death in Iran, Syria, and Yemen.³⁹ This door is now closed.

To further its externalization strategy, the administration has developed several other policies designed to block, deter, or return humanitarian migrants, policies that have a disproportionate impact on Central American children and their families. In January 2019, months after the family separation policy was halted, but with the same deterrent intent, the US government introduced the mis-named “Migration Protection Protocols” (MPP), more accurately known as the “Remain in Mexico Policy.”⁴⁰ For the first time, border officials are forcing child refugees and their families, who present themselves at the United States’ southern border to apply for asylum, to return to Mexico. There, in a no-man’s-land known to be riddled with drug traffickers and criminal cartels, certified as a “Do Not Travel” area by the US State Department, the asylum seekers have to spend months waiting for their hearings to be listed. US asylum officials, protesting the new policy, described it in a court petition they lodged: “Prior to the MPP, our country’s processing of asylum applications ensured that people fleeing persecution would not be … returned to a territory where they may face persecution or threat of torture.”⁴¹ This externalization practice recalls the infamous Haitian maritime interdiction policies of the 1980s and 1990s. According to October 2019 estimates, more than 66,000 Central American humanitarian migrants have been affected, of whom approximately 5,000 are under five years old.⁴² According to firsthand reports, 50 percent of those returned report being kidnapped in Mexico; systematic sexual violence has also been reliably documented.⁴³ These reports and other confirmed cases of shootings and ransoms have not, to date, forced a revision of US border practice.

At the same time as it is forcing vulnerable humanitarian migrants seeking protection back into Mexico, the US government is also severely rationing the rate at which US border officials accept asylum applications, a process referred to as “metering.” This intentional rationing of an urgent humanitarian service exacerbates delay and fuels the sense of “crisis.” Predictably, demand for asylum processing increasingly outstrips the ever more limited supply of officials charged with asylum processing responsibility.

Meanwhile, those asylum seekers who understandably try to circumvent this dramatic bottleneck by attempting to enter between official entry points and apply for asylum thereafter are subject to prosecution for illegal entry, the hard edge of the “zero tolerance” policy. In short, damned if you do, and damned if you don’t. The well-established international norm protecting access to asylum irrespective of the manner of entry on the territory, clearly codified in the 1951 Refugee Convention, has been eliminated. It remains to be seen whether this frontal attack on established humanitarian law and principle will be upheld by the courts, but while it is in operation, it further undermines the access to protection for non-citizen children fleeing Central American violence.

It is not just Mexico’s northern border that is affected. Under threat of crippling economic sanctions, the Trump administration has pressured Mexico to block refugee entry at its southern border by deploying, for the first time ever, its national guard forces. As of June 2019, Mexico had sent 15,000 untrained soldiers to police the border. In June 2019 alone, more than 30,000 Central Americans, including unaccompanied children, were detained in this way, which has led to overcrowding at 300 percent overcapacity in some Mexican detention centers.⁴⁴ The Mexican government is now planning to close down these facilities, presumably by emulating US conduct and sending asylum seekers back across the border into Guatemala.⁴⁵ Children fleeing gangs and other forms of violence now face much more costly and dangerous smuggling strategies to secure safety.

A third externalization measure is probably the most devastating to Central American children’s chances of securing safety abroad.⁴⁶ Adopting Europe’s “safe third country” approach that forces asylum seekers to apply for protection in the first safe country they enter, even if they have family or other ties elsewhere, the Trump administration is proposing to completely block land entry via the southern border to all asylum seekers. If implemented, this would mean that only refugees rich enough to fly or organize visas for themselves would have the possibility of getting to the United States to seek asylum. In a macabre, Monty Pythonesque twist, the job of providing sanctuary to humanitarian migrants fleeing violence would then be left to the murder capitals of the world – Guatemala, El Salvador, and Honduras – all of whom have signed cooperative agreements to this effect with the United States. In addition, new proposals advanced by the Trump administration would gut the asylum process even further, compounding the impact of safe third country exclusion procedures with draconian restrictions to the substantive grounds required as proof of eligibility for refugee status.⁴⁷

No European country, many of them addressing immigration pressures proportionately greater than the United States, has intentionally incarcerated migrant children or denied access to the asylum procedure to irregular entrants. Why? Not because they have unlimited reception capacity, not because they lack a deeply xenophobic element in their electorates, not because arguments about deterrence and moral blackmail as pragmatic migration control tools do not circulate. Countries do not incarcerate migrant children or eliminate the possibility of asylum for irregular entrants as a matter of fundamental moral and legal principle.

These policies and proposals highlight the growing outlier, even rogue status of the United States in the international sphere. American exceptionalism has long been acknowledged in relation to gun ownership, capital punishment, mass incarceration, and – in recent history – unapologetic use of torture. But this country’s long history of celebrating its immigrant identity was a welcome aspect of US exceptionalism. Trump’s infliction of harm on current populations of distress migrants eviscerates the best aspects of the American polity itself.

Rights-Respecting and Feasible Alternatives

It is worth considering the alternatives to these inhumane policies. International law, US constitutional obligations, and common humanity demand a radically different approach to children fleeing life-threatening violence. The fact that these children are non-citizens has no relevance to their claim for enforcement of rights – legal rights, human rights, fundamental rights. Outrage at the family separation policy demonstrated that, across the political spectrum, the claim that the well-being of vulnerable children can legitimately be used as a deterrent to border crossing is untenable. Widespread global political consensus and international norms establish the opposition to child migrant detention and to punitive action against children charged with no criminal infractions. What is required, then, instead of punitive and deterrent policies?

There are much better alternatives. The first, and most crucial, involves a constructive and collaborative regional approach – not one that coerces neighbors to accept refugees destined for the United States (as the asylum cooperation agreements described earlier do), but one that deploys the United States’ substantial resources – financial, political, and technical – to the urgent task of making the Northern Triangle countries safe again for children.

This is no easy task. The rule of law has been shattered by conflict, drug cartels, and the export of gang violence through deportations from the United States. Courageous local judges attempting to punish kleptocracy at the highest government levels have been forced to flee for their lives. These challenges are exacerbated by rural to urban migration caused by environmental damage. Children in overcrowded and under-resourced cities need safe and well-resourced schools, parents with jobs, effective health care, and playgrounds not threatened by gangs. Both self-interest and the reparative obligations that result from decades of engagement with military regimes should drive substantial US investment in building these resources. Roberto Suro, a respected Central American expert, has pointed out that the Trump administration’s total 2019 budget for the wall, immigration enforcement, and detention ($44 billion) is close to the combined GDP of El Salvador and Honduras ($48 billion).⁴⁸ A portion of those huge sums deployed to encourage Northern Triangle economic development would greatly contribute to improved local conditions and attendant decreases in migration pressure. A civic intervention program introduced by the Obama administration in one of Honduras’s most notorious neighborhoods produced excellent results. At an annual cost of $100 million, an integrated set of schemes in Rivera Hernández, the most violent neighborhood in San Pedro Sula, the murder capital of the world for four years in a row, reduced the risk of crime and alcohol or drug abuse among targeted youth by 77 percent compared to their untargeted peers. The violence prevention program also increased conviction rates for those charged with homicide from a previous low of 4 percent to a record 50 percent. Most significantly, over the two-year period of intervention, the violence prevention program reduced by more than half the number of Honduran youth arriving at the US–Mexico border.⁴⁹ This was one initiative in one neighborhood. Similar past initiatives in El Salvador have also been successful. Instead of canceling them, the administration should scale them up. This would improve youth safety and reduce migration pressures.

Closer to home, at a fraction of the cost of prolonged incarceration, the administration could replace family detention pending a final immigration decision with supervised family release and a much speedier and better administered asylum process. As noted, previous efforts to do this have yielded excellent results. Recent data from the Department of Justice shows that 89 percent of all asylum applicants attended their final court hearing to receive a decision on their application,⁵⁰ and among families and unaccompanied children who have access to legal representation, “compliance” with immigration court obligations is 98 percent.⁵¹ The United States could learn from its peers – other wealthy migration destination states addressing large-scale child migration – by providing legal representation and guardianship to unaccompanied children to ensure simpler and speedier court proceedings and more rational and just living arrangements. Guardians could ensure that children are accommodated in safety, with families or in childcare facilities, while they await decisions in their cases, and that they have access to appropriate educational and health facilities. Legal representatives could sift meritorious from unmeritorious cases, obviating the need for lengthy and costly court adjournments, negotiating safe returns home where this is in the best interests of the child, and ensuring prompt resolution by other means as appropriate, to the benefit of all parties. No one benefits from the uncertainty, cost, and misery generated by prolonged limbos.

Most critically, the United States should accept that, until it is abated by vigorous and effective development investments, the current humanitarian disaster facing children from the Central Triangle countries warrants special immigration policies. Instead of trumpeting the myth that physical or institutional barriers will prevent at-risk children from fleeing, the United States should institute deliberate and regulated policies to facilitate orderly child entry.

Many of the unaccompanied children who seek humanitarian entry in the United States have well-founded fears of persecution – they should qualify for refugee status. But the recent executive changes to US policy described earlier have restricted their chances, excluding those threatened by gang violence, for example, from qualifying for asylum.

For Central American children fleeing violence who have documented relatives in the United States, there should be refugee processing by US consulates in Central America. This would ensure safe travel, removing children from harm at home and en route. A program to do this that worked successfully was cancelled by the Trump administration.⁵² It should be reinstated.

In addition, the United States could follow historical precedents – the Kindertransport for Jewish children fleeing the Nazis, the Pedro Pan movement for Cuban children fleeing Castro – and institute refugee resettlement programs, establishing reasonable annual quotas and a transparent, fair, and efficient system of admission for the most vulnerable Central American children. The Office of Refugee Resettlement could work with local US communities, tapping into the extensive bedrock of civic capacity and willingness to accommodate, support, mentor, and nurture refugee children. Canada’s civic sponsorship program and Germany’s remarkable network of engaged communities and municipalities provide excellent precedents.

Finally, the United States could deploy its unrivalled educational resources to encourage subsidized scholarship programs for at-risk children and adolescents. Many immigrant and children’s rights advocates in schools and colleges would enthusiastically support such an initiative – the much celebrated Erasmus program in Europe, which has facilitated mobility for adolescents from Romania, Bulgaria, and Hungary to educational institutions in Germany, the United Kingdom, and Sweden, provides a powerful precedent.⁵³ Nothing but benefit for US educational institutions and their students, the broader community, and of course the at-risk Central American children and youth could flow from such initiatives.

As in other complex social fields, what is needed to address the challenges generated by contemporary distress migration (a constant in human history) is clarity and equity. Clarity about who is eligible for protection, for work authorization, for family reunification, for receipt of a visa; equity in relation to the right to mobility, access to timely and fair procedures and legal representation, and protection of basic human rights.

Our societies have extensive unmet needs for manual and low-skilled labor, needs that are not matched by proportionate work visas – as a result, millions are employed in an irregular immigration status, a clear inequity.⁵⁴ Our societies have extensive availability of educational opportunity given declining domestic fertility rates – yet only very wealthy non-citizen adolescents and young people (unless they are highly talented “scholarship” material) can access this opportunity, a clear inequity. Our societies are built on the founding notion that families are a fundamental social unit, the best context for child rearing – yet millions of children are separated from loving families for immigration reasons, a clear inequity. Our societies uphold the right not to be forced back home if there is a threat to life or freedom – yet millions are denied the opportunity to exercise that right, a clear inequity.

The proliferation of conflicts, the increase in environmental harms associated with climate change, the growing and increasingly evident social inequity across regions, and demographic transformations are complex factors that all impinge on migration and which must be addressed as part of the answer to unregulated and life-threatening movements of people. Migration cannot be fixed by migration strategies alone. There are no quick fix solutions, as the Trump administration has learnt to its cost.

In response to the large-scale flows of desperate distress migrants from Syria and other parts of the Middle East, Asia, and Africa into Europe in 2014 and 2015, the member states of the United Nations embarked on a systematic process to review global migration and refugee flows. In the fall of 2018, they signed two “global compacts,” one on refugees and one on migrants.⁵⁵ The compacts address many of the complexities bedeviling current migration policy – the lack of responsibility sharing for refugees, the dearth of legal and safe access to migration for many deserving and able populations, the imperative of linking migration and refugee policies with development strategies, and the urgency of attending to the human rights and needs of child migrants, whether accompanied by their families or unaccompanied. A central goal was to create integrated, global strategies for managing migration, sharing responsibility, and more adequately responding to the needs of the many constituencies implicated in contemporary migration.

Two years down the line from the initial, vigorous engagement with the global compacts’ project, it is not clear that demonstrable progress has been achieved. The notion that migration management should be linked to development goals – and in particular to Sustainable Development Goal 10.7 that calls on state parties to “[f]acilitate orderly, safe, regular and responsible migration and mobility of people, including through the implementation of planned and well-managed migration policies” – is a powerful one.⁵⁶ It sets a useful framework for action and for policy development. Several of the alternative policy approaches outlined here are consistent with this development approach. However, opinions differ when it comes to evaluating progress. Although some analysts are disappointed, critical of the fact that little political will has been galvanized and few if any significant improvements in migration safety or humanitarian protection and resettlement have been secured, others suggest the opposite – that given the unrealistic nature of the global compact recommendations to start with, there are grounds for cautious optimism about incremental steps toward progress in both refugee integration and life-saving migration management.

The US government has signed on to the Global Compact on Refugees, though its annual rate of acceptance of resettled refugees is at an all-time low. The US government has withdrawn from the Global Compact on Migration, however, reflecting the isolationism of its current foreign policy and the failing commitment to sustainably improving the migration management system. Both these developments – the low resettlement rates and the failure to engage with constructive approaches to improved migration management – bode ill for the thousands of vulnerable Central American children and young people seeking safety from violence and the opportunity to lead productive and rewarding lives. They will create more business for people smugglers, higher casualties of fleeing children en route, and a greater burden of distress and trauma for thousands as they move from childhood to adulthood. But they will also strengthen the determination of child migrants and their supporters to press for alternatives, and to use all the means at their disposal to secure the rights and interests to which they are entitled.

4 Australia’s Extraterritorial Border Control Policies

Azadeh Dastyari and Asher Hirsch

By international standards, the numbers of refugees arriving in Australia irregularly are small. Nevertheless, Australia has instigated extreme policies to deter and deny people seeking its protection. The impacts of these policies are felt by some of the world’s most vulnerable individuals: refugees. For such individuals, the overall numbers are irrelevant because the harm caused to them is personal and real. Australia’s policies are also undermining the international protection regime by setting a harmful example for other states who wish to deny refugees protection. In this way, Australia’s impact on global protection is disproportionate to the size of the cohort of irregular arrivals.

The majority of spontaneous arrivals in Australia (i.e., the arrival of individuals without visas or other legal authority to enter the country) are refugees. A refugee is defined in Article 1(A)(2) of the Convention Relating to the Status of Refugees (Refugee Convention) as a person who, “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.”

A person who meets this definition is considered a refugee with rights under international law from the moment they meet the definition, not from the moment their claim for protection is assessed. As the United Nations High Commissioner for Refugees (UNHCR) handbook makes clear:

[a] person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which his refugee status is formally determined. Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognized because he is a refugee.¹

This distinction is significant because it means that a person who meets the definition of a refugee is a refugee even if they are prevented from accessing protection. That is, extraterritorial measures adopted by Australia, or any other country, which prevent the entry of a refugee, do not negate the status of the individual as a rights holder under international law.

In the last two decades, refugee arrivals in Australia have included Hazara and other Afghani refugees escaping the violence of the Taliban; Iraqi refugees fleeing sectarian violence in their war-torn state; and members of the LGBTQI community, political activists, evangelical Christians, and other persecuted minority groups fleeing the Iranian regime. Such individuals make the difficult and dangerous journey to Australia in search of safety because they have little choice.

Almost all such refugees pass through transit states in Southeast Asia, such as Indonesia and Malaysia, to reach Australia. They are unable to seek protection in these transit countries because these states have not ratified the Refugee Convention and therefore do not have any legal obligation to offer refugees protection. The refugees in transit states are often left without legal status in a precarious and at times dangerous situation. The ability of the refugees to come to Australia and find protection, therefore, is paramount for their safety.

Refugees arriving irregularly to Australia, however, have not been viewed favorably by successive Australian governments. Policies that deter and deny refugees access to Australian territory, regardless of their desperation or need, have enjoyed bipartisan support from both Australia’s center-left Labor party and the center-right Liberal and National Coalition parties. Governments wishing to exercise a high degree of control over Australian borders have also been assisted by the country’s geography. Australia’s isolation and lack of land borders has helped it to implement a number of extraterritorial migration control measures, that is, actions outside of Australian territory that allow it to prevent the irregular arrival of refugees by both sea and air. These “non-entrée policies”² effectively stop would-be refugees from leaving their own countries, or keep refugees in countries that have not ratified the Refugee Convention and that have less capacity to protect refugees and uphold their rights.

Many of the extraterritorial border control measures adopted by Australia have focused on stopping irregular boat arrivals. Refugees arriving by boat, in particular, have been viewed as a grave risk to Australian society.³ Stopping the refugee boats was a key election promise of the Coalition government in its re-election campaign in 2013. Australia has also introduced less publicized measures to prevent the entry of unauthorized non-citizens by air.

This chapter addresses some of the extraterritorial measures adopted by Australia to prevent the entry of certain people into Australian territory. In the first part, the chapter examines measures aimed at stopping irregular arrivals by air, including carrier sanctions, Airline Liaison Officers, and the use of technology. The second part assesses the measures taken by Australia to stop irregular boat arrivals, including third country detention and processing regimes in Nauru and Papua New Guinea and boat interdictions. The final part questions the legality or otherwise of Australia’s actions.

Extraterritorial border control measures have proven highly effective in preventing the irregular arrival of refugees in Australia. They have, however, placed Australia in violation of its international obligations, prevented refugees from seeking protection thereby placing them in harm’s way, and have resulted in great suffering for at-risk groups.

Stopping the Planes

People seeking to claim protection in Australia have two options to enter Australia’s territory and seek its protection: arrival by plane or by boat. The waters surrounding Australia are often treacherous and the boat journey to Australia can be deadly. Furthermore, people travelling irregularly by boat seldom have choice in the vessel used to carry them and can end up on unseaworthy boats that cannot cope with rough waters or precarious weather conditions. Although allowing asylum seekers and refugees to board a plane to Australia would be the safer option, Australia has gone to great lengths to ensure that those without a visa are unable to board an Australia-bound flight.

Carrier Sanctions

One of the most significant means by which Australia prevents the entry of refugees into its territory by air is through fines for airline operators in the form of carrier sanctions. Carrier sanctions are financial penalties imposed upon airlines and ships that transport passengers who do not hold the relevant permission to enter the country. By requiring carriers to check that passengers have authorization to enter a country prior to embarking, carriers effectively become border officials, controlling migration at the point of departure. Although carrier sanctions do not apply only to those who carry refugees, they disproportionally affect refugees seeking protection.

Carrier sanctions rely on an economic argument: The “fear of having their profit margin eroded by such penalties is supposed to encourage carriers to deny passage to Australia to those who are inadequately or irregularly documented.”⁴ The Australian Migration Act of 1958 (Cth) makes it an offence to transport a non-citizen to Australia without a visa or documentation.⁵ In addition, airlines and ship companies are responsible for removing passengers from Australia if they are refused entry after arrival.

To make it explicitly clear that carrier sanctions apply even to those with genuine protection claims, Section 228B(2) of Australia’s Migration Act provides: “a non-citizen includes a reference to a non-citizen seeking protection or asylum (however described), whether or not Australia has, or may have, protection obligations in respect of the non-citizen because the non-citizen is or may be a refugee, or for any other reason.” This makes it clear that airlines and other carriers will be fined even if the non-citizen they have brought to Australia is found to be a refugee and owed legal protection in Australia. This is in contrast to the policies of other countries.⁶ For example, in the European Union, sanctions “may in some cases be waived if the passenger is found to be a refugee.”⁷ However, since carriers do not conduct refugee status determinations prior to boarding, the changes of an airline allowing refugee-claimant to board a plane – and thereby risk a fine – are slim.

Taylor argues that carrier sanctions have succeeded in reducing the number of refugees arriving by air: “The fact that the number of infringement notices actually served on carriers has been dropping markedly from year to year indicates that sanctions have had their intended effect.”⁸ Airlines are unlikely to be sympathetic to the claims of refugees seeking to board, and even if they are, they do not have adequate expertise to assess refugee claims before departure. Even for those who are sympathetic, the financial impact of carrier sanctions would eventually outweigh any humanitarian concern.⁹

Carrier sanctions mean that refugees are stopped outside of Australian territory – before they board the plane – and that the process of border control is carried out by a private company.¹⁰ This privatization of border control adds an additional complication for those seeking protection. There are legal implications when private commercial companies rather than a government official decide if a person has the right to cross the border. This is because states rather than private companies have the legal responsibility to refugees under international law, and it can be more difficult to hold states accountable when they exercise their power through private companies. As Gammeltoft-Hansen notes, “the argument that states incur any obligations under refugee law as a result of carrier controls has been rejected on the premise that these controls are a private matter, distinct from the state’s own authorities and thus responsibility.”¹¹ This makes asserting legal rights such as non-refoulement, increasingly difficult, successfully deterring many potential legal challenges.

Airline Liaison Officers

Although it has privatized border controls through carrier sanctions, Australia has not entirely relinquished its border control at airports to airlines. In order to assist airlines in meeting their carrier obligations, Australia has posted Airline Liaison Officers (ALOs) in more than sixteen airports throughout Asia and the Middle East, as these countries are often seen as transit countries for asylum seekers en route to Australia. By its own account, “Australia has one of the most experienced, respected and effective ALO networks in the world.”¹²

The main function of ALOs is to “assist local immigration and airport authorities and airlines personnel to identify document fraud by checking documents and provide advice on authenticity.”¹³ As the Department of Immigration describes, “ALOs work with airlines, airport security groups and host governments, as well as colleagues from other countries, and have a dual role of preventing improperly documented passengers from travelling and facilitating the travel of genuine passengers at key overseas airports.”¹⁴ In 2014, ALOs prevented “173 improperly documented passengers from travelling to Australia.”¹⁵ It is not clear how many of these passengers had attempted to make asylum claims. “The Department of Immigration’s arrangements with host country governments do not specify processes for dealing with asylum claims made by intercepted persons.”¹⁶

The aim of the ALO network is to “extend [the Australian] border all the way to embarkation points.”¹⁷ However, the direct impact of ALOs is difficult to quantify, as there is no record keeping of any refugee claims made at the departure point.¹⁸ This has been noted at a roundtable with the UNHCR and the Council of Europe: “It is impossible to be precise about the number of refugees who are denied escape due to stringent checks by transport companies. The number is considered to be on the rise, however, not least since transport companies have been assisted by Governmental liaison officers in verifying travel documents.”¹⁹

Use of Technology

Finally, to ensure compliance with its carrier sanctions and to further monitor and control its external borders, Australia maintains a range of surveillance technologies. The Department of Immigration’s Annual Report 2014–2015 highlights a number of “Border Systems” it employs to monitor and control the movement of passengers en route to Australia. These include systems to identify “people who are of concern for a number of reasons, including health, character and national security”; to record “lost, stolen or cancelled and bogus foreign travel documents”; and to share “real-time travel document validation service between participating RMAS [regional movement alert system] economies – currently Australia, New Zealand, the USA and the Philippines.”²⁰ As the Department notes, these systems ensure that “people tendering invalid travel documents [are] prevented from boarding a flight from any boarding point.”²¹

Since 2005, Australia has required all airlines to process passengers through the Advance Passenger Processing (“APP”) system.²² The Department of Immigration outlines how this process works:

Airlines bringing travellers to Australia are required to confirm that each traveller they uplift has an authority to travel to Australia, usually in the form of a visa. Airlines confirm this authority using the advance passenger processing (APP) system, which also reports details of all passengers and crew to the Department before arrival. This gives the Department and other agencies advance notice in real time of a person arriving by air and helps to facilitate immigration clearance of genuine travellers on arrival.²³

Since 2006, Australia has also developed an extensive database of biometric data for all non-citizens.²⁴ In 2004, the Australian Parliament passed the Migration Legislation Amendment (Identification and Authentication) Act 2004 (Cth). This Act allows for the collection of personal identifiers from non-citizens, including fingerprints and handprints, photographs or other images of the face and shoulders, weight and height measurements, audio or video recordings, signatures and iris scans, and other items.²⁵ This data is shared with other partner nations and cross-referenced to identify any undesirable people. As the Department explains:

Under the Five Country Conference (FCC) biometric data matching programme, the Department is developing capability to automate the exchange of non-FCC citizens’ biometric data with other FCC partners. Automation of biometric data exchange has begun between Australia and the USA, and between Australia and the UK. Full automation of biometric data exchange, and the subsequent legal requirements to carry out this sharing, will be progressively rolled out to all FCC partners over the coming years.²⁶

This data matching has led to the denial of visas to potential refugees. For example, the Australian government has published the following case study:

An individual applied for a visitor visa at an overseas post on 24 February 2015. The individual’s biometrics were captured and referred for FCC checking. One partner country returned an FCC match in March 2015 and advised that on 19 December 2008 the individual had been apprehended by immigration and customs officials and charged with being an undocumented arrival. The individual left the partner country on 27 March 2009 …. A second FCC country also returned a fingerprint match and revealed that the individual had applied for refugee protection there. In March 2005 the individual was reported inadmissible for being a member of an organised crime group that specialised in the theft of money and jewellery. It was also reported that the individual had been convicted on 10 August 2005 of an offence punishable by a maximum term of imprisonment of at least 10 years, or for which a term of imprisonment of more than six months was imposed …. The individual’s application for an Australian visitor visa was refused at post on 8 April 2015.²⁷

In this example, the potential refugee was not given a chance to present his case, had no rights to appeal, and no access to justice. It should be remembered that under international law, being convicted of theft does not automatically make a person ineligible for refugee protection.²⁸ The example shows how these technologies of surveillance can work to keep out potential refugee claimants.

Those who are unable to board a plane to Australia are forced to seek refugee protection by boat. Indeed, it could be argued that the creation of visa controls and airline liaison officers has forced those seeking protection to use more dangerous pathways to protection. Those who are unable to obtain a visa have very few options at their disposal to protect themselves and their families. However, in response to the irregular arrival of refugees by boat, Australia has further hardened its border, implementing a range of discriminatory policies directed at boat arrivals.

Stopping the Boats

Extraterritorial Processing and Detention of Asylum Seekers and Refugees Arriving by Boat

Much of Australia’s current extraterritorial practices with regard to irregular boat arrivals were a response to the August 2001 arrival of the Norwegian-registered MV Tampa near Australian territory. MV Tampa, which was carrying 433 asylum seekers rescued at sea, attempted to enter Australian territorial waters and to disembark the rescued people on Australian territory of Christmas Island. The Australian government, then led by Prime Minister John Howard from the center-right Liberal party, in coalition with the National Party (which largely represents the more conservative rural communities in Australia), responded by deploying military (Special Air Services) personnel to take control of the vessel and forcibly transfer the passengers to Nauru for processing.

These events marked the commencement of a policy broadly known as the “Pacific Solution,” under which any non-citizens, including refugees, interdicted at sea or arriving in certain parts of Australia without a valid visa to enter Australian territory, became vulnerable to transfer to Australia’s economically struggling former protectorates of Nauru and Papua New Guinea for processing and detention.

Due to a drop in the number of boat arrivals, the number of asylum seekers transferred to Manus Island in Papua New Guinea decreased over time. By May 2005, there were no detainees in the Papua New Guinea facility. However, detention in Nauru continued until December 2007, when it was ended by Australia’s newly elected center-left Labor government. The closure of the facilities in Nauru and Papua New Guinea was, however, short lived.

The Labor government announced the resumption of the transfer of asylum seekers to Nauru and Papua New Guinea in August 2012, and in July 2013 it was announced that no refugees processed in Nauru or Manus Island would ever be resettled in Australia. Instead, asylum seekers would be sent to Nauru or Manus Island, and then, following the confirmation of refugee status, would either be expected to resettle in Nauru, Papua New Guinea, or a third country.

Australia has, however, found it difficult to resettle refugees from Nauru and Papua New Guinea. Cambodia agreed to resettle refugees from Nauru in exchange for $55 million from the Australian Government. Only seven refugees agreed to participate in the arrangement.²⁹ A highly publicized deal with the United States has also resulted in the resettlement of refugees from Nauru and Papua New Guinea.³⁰ As of August 22, 2019, a total of 619 refugees had been resettled in the United States.³¹ An offer by New Zealand to resettle refugees from Australia’s extraterritorial detention centers has been rejected by the Australian government.³² The Australian government fears that the refugees resettled in New Zealand may be able to enter Australia later as a result of a special category visa for New Zealand citizens, which allows them to live and work in Australia indefinitely.³³ Between August 13, 2012, and September 1, 2019, 4,177 people were transferred to Nauru and Papua New Guinea, including children. In September 2019, 562 of the people transferred by Australia to Nauru and Papua New Guinea remained on the islands. No children remain on Nauru and Manus Island as of January 2020.

The cost of operating detention facilities in Nauru and Manus Island are borne entirely by Australia. Australia has contracted service providers and maintains a visible and active presence at the centers at all times. As the UNHCR notes, “it is clear that Australia has retained a high degree of control and direction in almost all aspects of the bilateral transfer arrangements.”³⁴ The High Court of Australia has found that Australia secures, funds, and participates in the detention on Nauru, with Justice Bell further arguing that “[t]he Commonwealth funded the RPC and exercised effective control over the detention of the transferees through the contractual obligations it imposed on Transfield …. [D]etention in Nauru was, as a matter of substance, caused and effectively controlled by the Commonwealth parties.”³⁵

The detention of asylum seekers in Papua New Guinea and Nauru has received a high degree of criticism from international organizations, including Human Rights Watch, the United Nations High Commissioner for Refugees, and Amnesty International. There have been several deaths of asylum seekers in the detention facility in Papua New Guinea, including the murder of a young Iranian man by guards and the deaths of two men, which a number of leading health professionals believe could have been prevented with better medical care.³⁶ The detention facility in Nauru has not been free from tragedy, either. Omid Masoumali, a young Iranian national seeking Australia’s protection died after a 22-hour delay to fly him to Australia for burn treatment. Masoumali self-immolated following a UN visit to Nauru in protest against the conditions and continuing detention on the island.³⁷ Centers in both Papua New Guinea and Nauru have also been plagued by allegations of rape and other sexual assaults, including of children. Independent bodies have also observed overcrowding and poor conditions of detention,³⁸ a lack of fairness and transparency in refugee status determinations,³⁹ and repeated concerns regarding detainees’ lack of safety.⁴⁰

The UNHCR released a very strong condemnation of conditions for detainees on Australia’s extraterritorial detention facilities, stating:

There is no doubt that the current policy of offshore processing and prolonged detention is immensely harmful …. Despite efforts by the Governments of Papua New Guinea and Nauru, arrangements in both countries have proved completely untenable.⁴¹

In 2016, the Papua New Guinea Supreme Court held in Namah v. Pato that detention of refugees and asylum seekers was unconstitutional under the right to liberty set out in the Papua New Guinean Constitution. The Court ordered both the Australian and Papua New Guinea governments to “take all steps necessary to cease and prevent the continued unconstitutional and illegal detention of the asylum seekers or transferees … on Manus Island.”⁴²

The detention center on Manus Island has now closed but there is little certainty regarding the fate of the refugees there as their resettlement appears untenable. A number of refugees have required medical attention following assaults from members of the local population after being released into the community, and there are deep concerns regarding the safety of the men transferred to Manus Island by Australia.⁴³ The men are vulnerable because of the animosity felt by some members of the local community toward them. As Grewcock explains, “the tensions between sections of the local Manus Island community and the detainees are rooted in the socio-economic impacts of locating the centre in one of the poorer regions of PNG.”⁴⁴ Human rights groups also report that refugees have been attacked on a daily basis in Nauru after being released into the Nauruan community.⁴⁵

Australia has paid a high cost for its extraterritorial status determination and detention regime for asylum seekers and refugees. In financial terms, the operation of detention facilities in Nauru and Manus Island cost Australia nearly $5 billion between 2012 and 2017.⁴⁶ The extraterritorial regime has also been highly damaging to Australia’s international reputation with a negative impact on its diplomacy and soft power.⁴⁷ The greatest cost of Australia’s determination to process and detain asylum seekers and refugees offshore has, however, been borne by the asylum seekers and refugees themselves.

Interdiction at Sea

In addition to an extraterritorial processing and detention regime for people who arrive irregularly by boat, Australia has also attempted to prevent refugees from arriving by boat through an interdiction regime. “Interdiction” in this context means actions taken at sea to prevent vessels from reaching their intended destination, in this case Australia.⁴⁸

Australia initially introduced an interdiction program named “Operation Relex” in 2001. While this regime was in effect, twelve vessels were detected attempting to reach Australia. Of these, four were successfully intercepted and returned to Indonesia, three ultimately sank, and the rest were intercepted and passengers were taken to Christmas Island, Nauru, or Papua New Guinea.⁴⁹

Under the Labor Government, from 2007 to 2013, no boats were turned back. However on September 18, 2013, 11 days after the Liberal-National Coalition won back power in the federal election, then-Prime Minister Tony Abbott implemented “Operation Sovereign Borders,” a “military-led response to combat people smuggling and to protect [Australia’s] borders.”⁵⁰ Operation Sovereign Borders involved a staunch commitment that all asylum seekers arriving by boat would be turned back to their country of departure. From September 2013 until July 2015, 20 boats carrying at least 633 passengers were intercepted and returned to their countries of departure, including to Sri Lanka, Vietnam, and Indonesia.⁵¹ A number of these turnbacks involved “enhanced screening” at sea, which is a cursory assessment to determine if anyone being returned is a refugee. This policy of enhanced screening prevents asylum seekers from making a detailed refugee claim and denies them any procedural fairness.

The policy of enhanced screening was first introduced in 2012 by the Labor Government to apply to Sri Lankan boat arrivals, and was mostly undertaken in Australian territory on Christmas Island.⁵² As part of Operation Sovereign Borders, the policy of enhanced screening was implemented while asylum seekers were detained on Navy and Custom vessels at sea. This policy involves:

asking each of the asylum seekers a set of four questions and determining their refugee status on the basis of their answers to these questions (the asylum seeker’s name, country of origin, where they had come from, and why they had left) without a right to appeal a negative decision.⁵³

The risk that a person would be returned to face harm following such a cursory assessment of their claim is high, as seen when asylum seekers from Vietnam who were turned back by Australia were subsequently granted refugee protection by the UNHCR in Indonesia.⁵⁴

Australia’s policy of enhanced screening and turnbacks was highlighted in the case of CPCF v. Minister for Immigration and Border Protection,⁵⁵ in which a boat of 157 Tamil asylum seekers was intercepted en route to Australia from India. After initial attempts to return the asylum seekers to India, and a subsequent High Court challenge, the asylum seekers were taken to the extraterritorial processing center on Nauru. This is the only boat of asylum seekers not to be returned since the beginning of Operation Sovereign Borders.⁵⁶

Both the physical act of interdicting boats at sea and the return of individuals to transit or refugee-producing countries place refugees and others seeking Australia’s protection at risk of serious harm including further persecution and even death. There are grave concerns that the cursory status determination procedures undertaken at sea to identify individuals in need of protection are inadequate to safeguard refugees who must be protected from persecution.

Evaluating the Legality of Australia’s Policies

Australia’s response to refugees is consistent with the view that a refugee is a potential threat, rather than someone fleeing harm. Under international law, states do have a sovereign right to control their borders. Inherent in the principle of sovereignty are the principles of territorial supremacy and self-preservation. This principle of sovereignty allows states the “freedom to act unconstrained and the right to exclude foreigners from their territory.”⁵⁷ Yet this absolute sovereignty has been partially relinquished through the voluntary ratification of international treaties. By agreeing to be bound by international treaties, including international human rights law, states have taken on additional obligations to uphold certain rights for both citizens and non-citizens within their jurisdiction. As Goodwin-Gill and McAdam note:

The refugee in international law occupies a legal space characterised, on the one hand, by the principle of State sovereignty and the related principles of territorial supremacy and self-preservation; and, on the other hand, by competing humanitarian principles deriving from general international law (including the purposes and principles of the United Nations) and from treaty.⁵⁸

International law, and in particular the right to seek asylum and obligations of the Refugee Convention, poses a challenge to the traditional concept of sovereignty. Although the right to seek asylum is provided in Article 14 of the Universal Declaration of Human Rights (UDHR),⁵⁹ it is often referred to as an empty right because it does not create a subsequent duty upon states to grant asylum.⁶⁰ Indeed, the Declaration on Territorial Asylum reiterates that the granting of asylum is an “exercise of [State] sovereignty.”⁶¹ Nevertheless, although states may not have a duty to grant asylum, they do have an obligation to provide access to their asylum procedures. Goodwin-Gill and McAdam argue that “while individuals may not be able to claim a ‘right to asylum,’ states have a duty under international law not to obstruct the right to seek asylum.”⁶²

In addition to the UDHR, the Refugee Convention and its 1967 Protocol provide further obligations on states with regard to their borders. By ratifying the Refugee Convention, states forfeit their claim to absolute control over their borders. One hundred and forty-six states, including Australia, have ratified the 1967 Protocol, which affirms the obligations of the Refugee Convention and removes its temporal and geographic limitations to post-Second World War Europe, transforming it into a set of global commitments. As Gammeltoft-Hansen argues, “refugee law places a constraint on the otherwise well-established right of any state to decide who may enter and remain on its territory.”⁶³ In other words, while states are entitled to build walls, these walls must have doors for refugees.⁶⁴

Refoulement of Refugees

One significant danger of Australia’s extraterritorial actions is the refoulement, or return, of refugees to a place where they may face persecution. This is a significant risk when Australia returns boats to refugee-producing countries directly, such as when it interdicts and returns vessels to countries of origin such as Sri Lanka and Vietnam. It also remains a risk when refugees are returned to, or are kept in, transit countries from which they may be subject to chain refoulement (the subsequent return of refugees to the original country they were fleeing).

The refoulement of a refugee is prohibited under Article 33 of the Refugee Convention. If any individuals returned by Australia are at risk of torture, Australia’s actions would also violate Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Furthermore, the return of a person to inhumane, degrading treatment, punishment, or to death is a violation of Articles 6 and 7 of the International Covenant on Civil and Political Rights (ICCPR).

Access to Territory

International refugee and human rights law does not explicitly grant permission for refugees to enter a state’s territory. However, there is a link between compliance with a state’s negative obligation to prevent refoulement and the positive obligation to provide refugees access to the territory of a state. This is because a state’s non-refoulement obligations do not end at its borders. A state, such as Australia, owes a non-refoulement obligation to anyone in its effective de jure or de facto control. Put simply, any refugee that is either directly or indirectly in Australia’s control, such as individuals detained in Australia’s extraterritorial processing centers or interdicted at sea, may be owed a non-refoulement obligation. Unless Australia provides protection to everyone that it has de jure or de facto control over, it must carry out fair and effective procedures to determine who is a refugee and is thus owed non-refoulement obligations, and who can be safely returned.

Hathaway argues that when there is a real risk of persecution due to a Refugee Convention ground, a duty of non-refoulement amounts to “a de facto duty to admit the refugee since admission is normally the only means of avoiding the alternative, impermissible consequence of exposure to risk.”⁶⁵ The Executive Committee of the United Nations High Commissioner for Refugees (UNHCR ExCom) agrees. In its 1997 Conclusions on Safeguarding Asylum, UNHCR Excom drew attention to the importance of the principle of refoulement and “the need to admit refugees into the territories of States, which includes no rejection at frontiers without fair and effective procedures for determining status and protection needs.”⁶⁶ The UNHCR ExCom in its 1998 Conclusion reaffirmed this statement and again strongly deplored the refoulement of refugees.⁶⁷ In addition, in its Protection Policy Paper on Maritime Interception Operations, the UNHCR noted in 2010 that “claims for international protection made by intercepted persons are in principle to be processed in procedures within the territory of the intercepting State.”⁶⁸ The paper explains that in-territory processing will generally be “the most practical means to provide access to reception facilities and to fair and efficient asylum procedures.”⁶⁹

Arbitrary Detention

Refoulement is not the only obligation that may be violated by Australia’s current policies. As explained earlier, all refugees who arrive in or are intercepted while attempting to enter Australia can be transferred to and detained in Australia’s extraterritorial detention facilities in Nauru and Papua New Guinea. Detention in these two countries is mandatory for people whose claims are being processed.

The Human Rights Committee has expressed the view that “detention should not continue beyond the period for which the State can provide appropriate justification,” and that the factors necessitating detention must be “particular to the individual.”⁷⁰ The ongoing detention of refugees transferred to Nauru and Papua New Guinea does not comply with this requirement. All individuals are detained regardless of their age, gender, nationality, or any other characteristic. The detention, therefore, is not particular to the individual circumstances of each person. It is thus likely that mandatory detention in Australia’s extraterritorial centers violates the prohibition on arbitrary detention provided in Article 9(1) of the ICCPR.

Poor Conditions of Detention

The poor conditions of detention centers also violate international law. The UNHCR has observed that asylum seekers in Nauru are kept in “cramped conditions, with very little privacy, in very hot conditions, with some asylum seekers sleeping on mattresses on the ground.”⁷¹ These inadequate conditions, which compromise the health of asylum seekers and refugees, are further exacerbated by:

• Lack of adequate medical facilities, including for heart conditions, dental issues, and, in one case, to address a metal plate embedded in one person’s leg.

• Hygiene issues: many complained of skin conditions and other infections, including parasites and lice.

• Lack of a gynecologist for the women.

• Lack of access to x-rays and other medical equipment.

• Limited access to medication.⁷²

Furthermore, as stated earlier, asylum seekers and refugees transferred by Australia to Nauru and Papua New Guinea have also been subject to both sexual and physical abuse.⁷³

Article 10 of the ICCPR requires states to treat detainees with “humanity and with respect for the inherent dignity of the human person.” The Human Rights Committee has stated that “States parties should ensure that the principle stipulated [under Article 10 of the ICCPR] is observed in all institutions and establishments within their jurisdiction where persons are being held.”⁷⁴ The lack of medical care and cramped, hot conditions of detention are inconsistent with humanity and respect for the inherent dignity of the human person, and thus violate Article 10 of the ICCPR.

The conditions of detention may also violate Article 7 of the ICCPR, which prohibits cruel, inhuman, or degrading treatment. In General Comment No. 20, the Human Rights Committee states that, “[i]n the view of the Committee, States parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement.”⁷⁵ The UN Special Rapporteur Against Torture has found that numerous aspects of Australia’s policies in Papua New Guinea violate the right of detainees “to be free from torture or cruel, inhuman or degrading treatment.”⁷⁶ This is in violation of Articles 1 and 16 of the CAT. The finding of torture or cruel, inhuman, or degrading treatment against vulnerable individuals who had sought Australia’s protection highlights the brutality of Australia’s border protection policies.

Conclusion

Australia has sought to control its borders by both air and sea by acting outside its territory. Sadly, this has come at a significant cost for the safety and security of vulnerable groups including refugees and has placed Australia in violation of its international obligations. The Australian prime minister has stated that Australia’s border protection policies are “the best in the world.”⁷⁷ Unfortunately, many world leaders, particularly in Europe, agree and are looking to emulate Australia’s extraterritorial methods.⁷⁸

Carrier sanctions, airline liaison officers, and the use of technology have limited the ability of protection seekers to come to Australia irregularly by plane while interdictions at sea, outside of Australian waters, have prevented the entry of those seeking protection by boat. Extraterritorial deterrence measures such as third country immigration detention has also acted as a discouragement to any refugees wishing to seek asylum in Australia by arriving by boat. Australia’s actions have led to the refoulement of refugees, arbitrary detention, and poor conditions in detention. Such a regime cannot be “the best in the world” and must be dismantled immediately to ensure Australia’s compliance with its international obligations.

5 Protection through Revisionism? UNHCR, Statistical Reporting, and the Representation of Stateless People

Brad K. Blitz

*

Introduction

One major problem complicating the task of effective humanitarian protection is the lack of quality data on the populations most affected. If protection agencies cannot identify those who need help, then their ambitions of assisting them are unlikely to be realized. This is especially relevant when considering “invisible,” hard to reach, or historically marginalized groups for whom we have little baseline data and whose presence is a source of contention for national authorities.

Unfortunately, undercounting is not simply a matter for statisticians and social demographers. It is often a political matter. As Sarfaty writes, “numbers display governmentality because they serve as a technology of power that constitutes populations and makes individuals calculable and therefore governable – both by others and themselves.”¹ Who is counted also tells us about governmental and institutional priorities and exposes biases about what counts, and how resources should be allocated. For example, voter registration may not include the total adult citizens because African Americans have been repeatedly denied the right to register to vote in some US states. Official processes may be exploited to discriminate against certain groups and published data may inaccurately reflect population trends.

The rationale for collecting data also reveals political and institutional priorities. National statistical offices play an essential role in governmental planning and are central to the state’s claim to legitimacy. Similarly, international organizations, including the United Nations High Commissioner for Refugees (UNHCR), have turned to the collection of data in the name of enhancing accountability and improving operational delivery.² This includes gathering information to advance target-based agendas, such as the Sustainable Development Goals, and measure progress in meeting institutional priorities. Data collection is a tool of national and global governance.³

This chapter presents a critical account of how statelessness has been measured by the UNHCR and its partners. It examines how data have been collected and presented in official reports and joint advocacy initiatives to advance ambitious agendas, including UNHCR’s #IBelong campaign, which seeks to end statelessness by 2024. Although UNHCR is mandated to collect data on people in need of protection,⁴ and has for decades used statistical indicators to map refugee conditions, its focus regarding statelessness has been on measuring accession to international instruments and capturing the percentage of stateless people for whom nationality is granted or confirmed within a given year. While UNHCR has sometimes been accused of inflating refugee numbers,⁵ in this chapter, I argue that UNHCR has actively sought to reduce the number of people counted as stateless.⁶ I suggest that the process of undercounting is indicative of a revisionist turn in humanitarian management characterized by a fixation with narrow definitions and institutional priorities that demand “results,” which has been enthusiastically supported by donor states, NGOs, and academics. My central claim is that the ways in which UNHCR data are presented reflect an increasingly top-down logic that ignores the lived experience of stateless people and undermines the provision of humanitarian protection to some who may need it.

The first part of this chapter explores the history of statelessness as a policy area within UNHCR. Developing Reichel’s argument of “normative path dependency,” I chronicle the evolution of UNHCR’s embrace of statistical indicators and the introduction of results-based management approaches to support its Global Strategic Priorities.⁷ I suggest that as the number of refugees appeared to be falling, UNHCR refocused on statelessness, mainstreaming this issue across the institution. The renewed interest in statelessness coincided with UNHCR’s shift in favor of results-based management tools, employing methodological approaches that put them at a considerable distance from the populations on whose behalf they claimed to be acting. They also set unrealistic targets. And as they worked to systematize their data, they reclassified those who no longer fell in neat categories and amalgamated them into other categories. Noting these failings, I conclude by recommending that rather than making humanitarian protection the servant of legal definitions or pursuing unattainable goals, relief agencies, donor governments, and researchers should recognize the lived experience of stateless people and embrace methodologically robust approaches to identification.

From Refugees to Stateless Persons: Institutional Developments

Although the term “statelessness” is today treated as a social category in its own right, this is a relatively new trend. Statelessness was long considered a feature of forced displacement, and many of those who today we would describe as stateless were accepted as refugees by receiving states. This was especially true in Europe where the unraveling of the Austro-Hungarian, Russian, and Ottoman Empires gave rise to massive refugee flows. In the late nineteenth and early twentieth century, millions who fled had never enjoyed nationality to begin with, while others saw their nationality status canceled retrospectively or lost upon application for a second nationality, leaving them stateless in the interim.

In the United States, for example, foreign-born men seeking to acquire US nationality were required to file a declaration of intent, at which point they would be forced to renounce any allegiance to another power. Yet they would often wait more than five years before they formally became US citizens, which required a court hearing. As for married women, they were simply assigned their husband’s nationality until the Cable Act of 1922.⁸

During the First World War and in the interwar period, states increasingly withdrew nationality to facilitate the expulsion of foreign-born groups. Torpey attributes this to the rise of the surveillance state and the use of immigration controls.⁹ For example, France denationalized foreign-born residents in 1915, three years before the new Soviet and Turkish governments denationalized Russian, Armenian, and Hungarian refugees. In the lead up to the Second World War, Fascist parties introduced racial laws, most famously in Germany (1935), where overnight the Nuremberg Laws divided Germans into “full citizens” and “citizens without political rights.”

Following the Second World War, in Europe, stateless individuals and refugees were understood as equivalent and largely interchangeable categories. It is therefore not surprising, given the expressly European context informing the design of the 1951 Convention on the Status of Refugees, that millions of stateless people saw their protection needs subsumed under the refugee regime. Although a new instrument was introduced specifically for stateless people, namely, the 1954 Convention Relating to the Status of Stateless Persons, few states were party to it. Moreover, the Convention itself established a narrow definition of statelessness. Under Article 1, it defined a “stateless person” as a person “who is not considered as a national by any State under the operation of its law.”¹⁰ This definition is used to describe those who are de jure stateless, in contrast to the vast majority of those who are de facto stateless or effectively stateless, that is, individuals who cannot obtain proof of their nationality, residency, or other means of qualifying for citizenship and are thus practically excluded from protection by the state.¹¹

The 1954 Statelessness Convention was initially conceived as a protocol to be included as an addendum to the 1951 Refugee Convention. Both were developed from the premise that refugeehood and statelessness were temporary statuses and that states would eventually integrate the millions of people who fell within these categories. A second Convention on the Reduction of Statelessness was introduced in 1961 with provisions to disallow statelessness at birth and to avoid statelessness resulting from the loss, deprivation, or renunciation of nationality in later life, as well as statelessness resulting from state succession. Yet, this instrument also presented several limitations: most importantly, it defers to states and asserts that nationality shall be granted by “operation of law to a person born in the State’s territory,” where such persons would “otherwise be stateless.”¹² One important failing of this convention is that it does not prohibit the possibility of revocation of nationality, nor does it retroactively grant citizenship to all currently stateless persons; hence, it only offers a partial remedy to the problem of statelessness.

Further geopolitical divisions during the Cold War, which largely prevented refugees from leaving the Soviet bloc, undermined any moves to establish an effective regime for stateless persons during that period. In the meantime, Palestinians, who were arguably among the most visible stateless groups, were also treated separately. Even though the 1961 Statelessness Convention provided for an international body that would serve to examine and assist individual claims,¹³ the UN system was hampered by geopolitical and organizational tensions. In 1974, when the 1961 Statelessness Convention came into effect, UNHCR did not have the capacity to fulfill this role. Not only was the agency distracted by the surge in refugees, especially in Asia, Latin America, and Africa, but until 2003, it was also operating under a temporary mandate renewable every five years.

Over the past fifteen years, UNHCR has sought to bring statelessness more prominently within its remit.¹⁴ A background paper prepared by Hugh Massey in 2010 to identify UNHCR’s responsibilities and set out the basis for more consistent operational definitions states that UNHCR “tended to assume that it had a mandate for de facto stateless persons who are not refugees just as much as it has a mandate for de jure stateless persons who are not refugees.”¹⁵ UNHCR now operates a statelessness unit that supports a range of field activities and, since 2006, has required its country offices to include stateless people in their reports. It has published papers on statelessness;¹⁶ has assisted many countries with surveys, registration campaigns, and population censuses; and has also provided technical advice.

As the number of recognized refugees stabilized and then started to fall in the twenty-first century, interest in the phenomenon of statelessness rose, and UNHCR emerged as the most vocal advocate on this issue. One core responsibility of UNHCR is to promote legal reform to address gaps in nationality and related legislation, including pressing states to accede to the Statelessness Conventions. UNHCR points to some achievements here, recording that in 2020 some twelve countries took steps to remove gender discrimination from their nationality laws and forty-nine states acceded to the two conventions on statelessness.¹⁷ In 2009, UNHCR published a policy paper to inform statelessness determination procedures and provide a mechanism for analyzing situations where persons are stateless or are at risk of becoming stateless.¹⁸ It has since published handbooks and operational guides. UNHCR now routinely provides reports and recommendations for the Universal Periodic Review on the topic and covers statelessness in its Global Appeals and Global Reports. It has also published educational tools¹⁹ and includes statelessness in its flagship report, The State of the World’s Refugees.²⁰

As the profile of statelessness within UNHCR increased, so too did budgets. There was a marked upturn in 2010 when UNHCR allocated US $38.5 million for its statelessness operations – approximately three times the expenditure on such activities just one year earlier.²¹ Expenditure on this head has continued to rise. For 2021, $81.6 million has been allocated to UNHCR’s statelessness program – 1 percent of the agency’s overall budget.²²

Accompanying this expansion has been a greater emphasis on targets. In the mid-1990s, on the heels of the Srebrenica massacre and genocide in Rwanda, the UNHCR was struck by several scandals that forced donors to question its accountability and effectiveness at supporting those in need of humanitarian protection. Since then, the UNHCR, like other humanitarian agencies, has worked to develop more coherent systems of accountability and has strived to recast its image to donors. To this end, it has enthusiastically embraced the use of standards and indicators. Most notably, the UNHCR was a founding member of the 1997 Sphere Project, which set out minimum standards to improve the quality of humanitarian responses. In 2002, UNHCR launched the “Standards and Indicators Initiative” to firm up assessment, planning, and implementation within the agency. The collection and presentation of statistical data was seen as promoting efficiency and measuring the effectiveness of projects in order to satisfy donors and other stakeholders. It also gave the impression of greater accountability, though as Dunlop argues, internally generated indicators may be less than objective and raise questions about who is collecting data, for whom, and who shapes the ways in which findings are presented.

Regardless of whether the resulting data is released publicly or used internally to determine the effectiveness of programs, there may be incentives for collection officers to downplay or couch certain failures if they are perceived to reflect poorly on sectoral management.²³

In 2004, UNHCR published a Practical Guide to the Systematic Use of Standards and Indicators in UNHCR Operations, which was followed by a comprehensive management and structural reform process two years later.²⁴

Although the reform process was sparked by external events that had exposed the agency’s failures, Reichel contends that internal factors, including a new institutional culture based on the need to show improvement for its legitimacy, set the UNHCR on a managerialist path. She argues that a process of “discursive entrapment” accompanied by an “intellectual climate in which ‘new public management’ norms had gained clout, were equally relevant to determine the pace and course of the rise of managerial norms.”²⁵

Over the past fifteen years, UNHCR has moved to rely on a sophisticated results-based management approach in the planning, implementation, and assessment of its activities.²⁶ The approach, championed by the UN Development Group (UNDG),²⁷ now features in UNHCR’s Results Framework, a log-frame-based tool that includes scores of indicators. This top-down orientation requires, for example, the introduction of “precise” and measurable criteria and “evidence of change.”²⁸ Evaluations of UNHCR operations have repeatedly relied on such criteria.²⁹

Statelessness features within UNHCR’s Global Strategic Priorities, which include a range of legal and humanitarian objectives. Key measures are described as “impact indicators” and “engagement” and include: reforming of law and policy consistent with international standards on the prevention of statelessness, principally through accession to the two UN statelessness conventions, and achieving annual targets of individuals who will acquire nationality or have it confirmed.³⁰

Although the results-based approach has made important contributions to UNHCR’s work in its emphasis on transparency and benefits for budgetary planning in particular,³¹ the new ways of measuring impact have shifted it away from the needs of the most vulnerable. Reichel goes so far as to suggest that the new managerialism has created a tension within the organization over its priorities to advance its humanitarian mission and the reality that it is increasingly beholden to states.³² Arguably, the results-based approach has encouraged certain reductive practices, the effects of which have not been fully explored. In the case of statelessness, the imperative to present results, together with a narrow definition of who counts as stateless, has led the UNHCR to privilege certain statistical data sources over other information and in effect to round down a problem that they could not possibly estimate. The next section describes both of these shifts.

UNHCR’s Data on Stateless People

The UNHCR currently reports that it has “data” on some 4,161,980 stateless people but admits that “the true global figure is estimated to be significantly higher.”³³ It has also recently recognized limitations with its method of calculation:

However, this [global] figure is not based on robust or transparent demographic methods and, as a result, its use to track progress on reducing statelessness and for policy, programming, or advocacy purposes is limited …. [M]ore is required to capacitate member states and coordinate data collection to estimate the number of stateless persons within their territory.³⁴

Nonetheless, it claims to have reliable data for seventy-eight countries. These aforementioned claims warrant further examination.

Who Is Stateless? And Where Do They Live?

Until 2019, it was unclear if UNHCR’s data only referred to de jure stateless people, those described as falling under their mandate, or if they also captured de facto stateless individuals and persons with indeterminate nationality.³⁵ While the term “de facto” no longer features prominently in UNHCR documents, UNHCR’s website states that the agency is now considering both de jure stateless people and those with indeterminate nationality.³⁶ In its 2020 report to UNHCR Standing Committee, which reviews UNHCR’s activities and programs, the agency recorded that it used mixed data types to estimate figures of stateless people but did not elaborate: “[The table] [r]efers to persons who are not considered as nationals by any State under the operation of its law …. but data from some countries may also include persons with undetermined nationality.”³⁷

Second, UNHCR’s approach to working with data on those of “indeterminate nationality” introduces other practical considerations, including the presumption that states will provide accurate and impartial information and are prepared to recognize links to other countries. “UNHCR uses the working definition of a person who lacks proof of possession of any nationality and who at the same time has or is perceived as having links to a State other than the one he/she is living in.”³⁸ Not only does this approach defer to states’ cooperation, but it also discounts the possibility that states may misuse data and personal information.³⁹ As noted elsewhere, there is a long history of states’ culpability in the creation of stateless people.⁴⁰

Third, while recognizing that “a formal definition of a person with undetermined nationality does not exist,” UNHCR has changed its terms of measurement from one year to another: “UNHCR previously also reported on de facto stateless populations but discontinued doing so in mid-2019 based on an assessment that de facto statelessness was often incorrectly used to refer to people who meet the statelessness definition in the 1954 Convention and who should, therefore, be reported as such.”⁴¹ This inconsistency makes longitudinal and comparative analysis especially problematic.

Fourth, the presentation of figures raises additional queries about coverage. As the Center for Migration Studies (CMS) found in their 2020 study of statelessness in the United States, the net used by UNHCR misses a large number of people who are stateless or potentially at risk of statelessness. Rather, drawing upon different datasets, including the American Community Survey (ACS) data, they maintain that the population of stateless people is both more diverse and significantly larger than UNHCR assumes.⁴² There is also a lack of published statistics for countries that have experienced major refugee flows and that have historically hosted stateless groups. Most importantly, there are no data for large refugee-hosting states and countries that have significant internal migration, such as Pakistan, South Africa, and Uganda. There is no information on other countries that previously were reported to have stateless populations such as Nepal, where the US government reported that an estimated six million individuals lacked citizenship documentation.⁴³ There are even gaps in reporting on states that have introduced statelessness determination procedures; there should be some reliable information, for example, for Switzerland. In other cases, these figures are bizarrely low.⁴⁴ For example, Egypt, a country with a population of more than 100 million, which has been home to more than 200,000 refugees, including generations of Palestinians, records having just five stateless people.⁴⁵

Redefining Statelessness and Developing Data

With refugee numbers falling, UNHCR commissioned many studies on statelessness in which it prioritized de jure statelessness over other statuses:

In practice, it may sometimes be difficult to distinguish between de jure and de facto statelessness. Because of these complexities, UNHCR would also recommend that censuses ordinarily be restricted to gathering information only about de jure stateless populations, and populations with undetermined nationality.⁴⁶

In addition to the methodological challenges noted here, Massey’s historical interpretation of the diplomatic discussions during the drafting of the 1954 Statelessness Convention led him to argue for a narrow definition that focused on de jure statelessness.⁴⁷ Massey calls attention to the Final Act of the 1951 Conference of Plenipotentiaries on the Status of Stateless Persons, which recommended limiting the scope of protection to only those “who have renounced that protection and whose reasons for doing so are considered valid by the foreign State.”⁴⁸ Thus, the matter turns on state recognition of the individual’s statelessness status. Massey then suggests that many of the areas one might consider to fall under the banner of de facto statelessness might be better covered under the Refugee Convention.⁴⁹ Furthermore, he notes that, as with refugee matters, the presumption is on the individual to demonstrate that they no longer have protection from their country of origin:

As a rule, there should have been a request for, and a refusal of, protection before it can be established that a given nationality is ineffective. For example, Country A may make a finding that a particular individual is a national of Country B, and may seek to return that individual to Country B. Whether or not the individual is de facto stateless may depend on whether or not Country B is willing to cooperate in the process of identifying the individual’s nationality and/or to permit his or her return.⁵⁰

Based in part on Massey’s paper, UNHCR developed a handbook to “advise on the modalities of creating statelessness determination procedures, including questions of evidence that arise in such mechanisms.”⁵¹ The handbook limited the recognition of stateless persons to the definition in the 1954 Convention and focused on the obligations of States that are party to the Convention – again, the plight of de facto stateless persons was pushed to the margins. One consequence of UNHCR’s advice in the handbook was that the authors of UNHCR-commissioned mapping studies did not try to estimate the number of that country’s (i.e., the selected country included in the mapping studies) stateless population.⁵²

One further dilemma, which arguably applies to all international agencies whose mandate relies on the implementation of international law, is the overt bias toward states – a tendency bolstered by the technocratic logic that further informed the work of UNHCR. Like other UN agencies that must present “results” to donors, over the past fifteen years UNHCR has been building up its statistical capacity, including most recently by establishing a joint data center with the World Bank.⁵³ In the 2005 Statistical Yearbook (published in 2007), for the first time the Agency set out its rationale for providing better statistical coverage: “In an effort to ensure evidence-based resource allocation and policy formulation, a variety of information sources are utilized to quantify and profile UNHCR’s population of concern.”⁵⁴ This ambition was reflected in its increased coverage of groups that had been underreported. For example, while UNHCR’s coverage of stateless people included just thirty states in 2004, by 2015, UNHCR was publishing data on seventy-nine states.⁵⁵

Most important, UNHCR also started to explain its methodological processes for estimating people who fell under its mandate and then, like other agencies, sought to make its data more operational.⁵⁶ It offered more comprehensive definitions of the indicators used, the various categories of concern, and its main sources of data. In its notes to the published statistics, UNHCR provides some important small print. In the 2011 Global Appeal, UNHCR recorded that “the data are generally provided by governments, based on their own definitions and methods of data collection.”⁵⁷ This statement was repeated to UNHCR’s donors as recently as February 2020.⁵⁸ A close reading of the footnotes in UNHCR’s principal publications records the methodological difficulties involved in data estimation and the challenges facing UNHCR and member states. For example, its 2020 report on its financial performance lists the different approaches it has taken to produce data, which include relying on national estimates, excluding data, and adjusting based on censuses and registers. In some cases, the information provided by national governments reflects a considered approach to estimation:

The statelessness figure is based on a Government estimate of individuals who … migrated to Côte d’Ivoire … and who did not establish their nationality at independence or before the nationality law changed in 1972. The estimate is derived in part from cases denied voter registration in 2010 because electoral authorities could not determine their nationality at the time …. The estimate does not include individuals of unknown parentage who were abandoned as children and who are not considered as nationals under Ivorian law.⁵⁹

UNHCR also presented information in more user-friendly formats. Today, UNHCR’s website includes a versatile data builder that allows users to select variables and indicators in order to construct detailed tables using composite data from UNHCR’s operational and statistical activities, national sources, and other UN agencies and partners.

Amid claims of greater accuracy, UNHCR explicitly privileged certain types and sources of data.⁶⁰ Above all, it considered national censuses and population registers most useful, as Massey recommends:

For such country-related information to be treated as accurate, it needs to be obtained from reliable and unbiased sources, preferably more than one. Thus, information sourced from State bodies directly involved in nationality mechanisms in the relevant State, or non-State actors which have built up expertise in monitoring or reviewing such matters, is preferred.⁶¹

There are several problems with this statement. First, it presumes that national censuses accurately record the status of individuals surveyed when, in practice, national censuses rely on self-completed questionnaires.⁶² Moreover, some states do not have a central population registry.⁶³ Second, it fails to recognize how bias applies to all forms of data, including official information produced by state bodies. Third, it assumes that individuals have sufficient agency to obtain status and, equally important, that states will cooperate to recognize such claims. These challenges were acknowledged by the Conference of European Statisticians more than twelve years ago.

Moreover, in many countries, stateless persons live precariously on the margins of society because they lack identity documents, are illegally in the territory, or are subject to discrimination. They therefore may be reluctant to come forward to be counted, or to reveal their personal circumstances, because of concerns that such information may be used against them. Indeed, history shows that population data has even been misused in certain countries in the past to render certain groups stateless through denationalization.⁶⁴ Unfortunately, contrary to UNHCR’s assumptions, testimonies of stateless people record that states have repeatedly dismissed these criticisms.

Here are two cases from the United Kingdom, a country that, both before and after the introduction of statelessness determination procedures, has proven reluctant to allow some long-standing citizenship claims deriving originally from the colonial period. There are six different classes of British nationality, offering more or fewer civil and political rights. In 1948, the United Kingdom introduced a new law to address its evolution from an imperial system to a commonwealth of independent states. The Commonwealth Heads of Government agreed that each member would adopt their own national citizenship, while the status of “British subject” would continue, as a supranational category.⁶⁵

On January 1, 1949, the United Kingdom established the status of Citizen of the United Kingdom and Colonies (CUKC). Until the early 1960s, there was little difference in UK law between the rights of CUKCs and other British subjects, all of whom enjoyed the right to enter and remain in the United Kingdom for work or family life. However, in many parts of the Commonwealth, newly independent colonies introduced nationality provisions that withdrew CUKC status, unless the person had a connection to the United Kingdom or a remaining colony (e.g., through birth in the United Kingdom). There were some important exceptions. For example, CUKC status was not withdrawn from the Crown colonies of Penang and Malacca that were integrated into the Federation of Malaysia in 1957. Hence, hundreds of thousands continued to enjoy the dual status of CUKC and citizen of Malaysia.

Over the following fifty years, the UK government legislation reduced the rights of former imperial subjects and established a multitiered approach to UK citizenship, which over time disadvantaged those born outside the British Isles and gradually restricted the rights to enter, work, and settle in the United Kingdom to a minority of former subjects. Specifically, the 1971 Immigration Act introduced the concept of patriality, by which only British subjects with sufficiently strong links to the British Isles (e.g., being born in the islands or having a parent or a grandparent who was born there) had right of abode. The 1981 British Nationality Act further reduced the rights of former British subjects. Commonwealth nationals now enjoyed one of six categories of British nationality: British citizens, British Overseas Territories citizens, British Overseas citizens, British Nationals (Overseas), British subjects, and British protected persons. Today, only British citizens and certain Commonwealth citizens have the automatic right of abode in the United Kingdom.

Until the Windrush scandal of 2018,⁶⁶ when dozens of former British subjects who had arrived before 1973 were wrongly detained and deported to Caribbean countries, the controversies regarding British nationality statuses attracted little public attention. It was inconceivable that former British subjects, including those with the status of CUKC, might suffer from the loss of nationality on UK soil. Rather, statelessness was considered a distant and understudied problem, more applicable to the former colonies in the Global South. A handful of legal cases and press reporting on crimes involving nationals from former British colonies, however, served as a reminder that individuals present on UK territory might also be caught between nationality statuses. One notable case involved a group of individuals who were unable to rely on the UK government to determine their status.

In the summer of 2004, police and immigration officers arrested some refugee families in Oxford as part of “Operation Iowa.”⁶⁷ The incident led to a criminal trial and inquiry that resulted in the cancellation of refugee status and withdrawal of state protection from the families, including the children. What complicated the matter was that the families concerned claimed not to be Pakistani, as reported, but from the disputed region of Kashmir, administered by India since 1954.

Even though the United Kingdom has extensive official channels to the governments of India and Pakistan, all three states refused to rule on the status of the families. The nationality struggles facing Kashmiris are well documented. Those affected include more than 100,000 Punjabi refugees who fled to Jammu and Kashmir from neighboring Sialkot (now in Pakistan) in 1947, and whose descendants have been denied Indian citizenship ever since.

The refugees who settled in Oxford claimed to be from Kashmir, although they had ties to Pakistan and their ancestral home was described as “Sialkot.” Their specific nationality status was brought to light when they were taken to court, where their rights to remain in the United Kingdom were called into question. In the 2005 criminal case, R v. Faruq and Others⁶⁸ (Operation Iowa), the Crown Prosecution Service claimed that there had been a conspiracy to contravene the Immigration Act by bringing relatives into the United Kingdom under bogus pretenses and then falsely claiming asylum (on the grounds they were persecuted in India as Kashmiri) as a prelude to falsely claiming benefits from government departments and local authorities. The Home Office revoked the status of several of the parties concerned, including the children of the families involved. It was argued that if the families had lied during their asylum application, then other information could no longer be considered credible, including the ages of some of the children. For more than a decade, the Kashmiri children lived without status, turning to charitable organizations and the goodwill of professionals to get by.

The story of Liew Teong Teh, a resident of the United Kingdom since 2001, presents a contrasting case where a law-abiding British Overseas Citizen (BOC) was rendered stateless, while the UK government proved unwilling to correct his status. Teh was born a BOC and citizen of Malaysia. After completing an MSc in Engineering at the University of Wolverhampton, he applied for indefinite leave to remain in 2005, under the impression he would be eligible for British citizenship based on his status. Following the advice of his lawyers, he renounced his Malaysian citizenship in 2006 and applied for leave to remain in the United Kingdom. In so doing, he became stateless. He recalls:

I was shocked to discover that the legal advice I had been given was misleading and that renouncing my Malaysian citizenship violated the Home Office’s Asylum and Immigration tribunal’s own rules …. Even though I have proof that I was misled and given the wrong advice on relinquishing my Malaysian citizenship, neither the Malaysian High Commission or the Home Office will accept me as a citizen.⁶⁹

Teh then applied for permission to remain in the United Kingdom as a stateless person under Part 14 of the Immigration Rules. He asked the Malaysian authorities to confirm that he had successfully renounced his citizenship of Malaysia, which they did in 2009. However, on two occasions, the Home Office refused his request and he was liable for removal. In 2013, the Home Office issued guidance relating to the removal of certain classes of British passport holders:⁷⁰

Removing British Protected person, BOTC, BNO, and BOC passport holders[:] Passport holders may be served with notice of illegal entry but removal is not straightforward. The person concerned must apply for entry clearance to the appropriate Embassy or High Commission of the country to which he is to be removed. If entry clearance is issued, he may then be removed. If the Embassy or High Commission refuse the application and he can prove this by presenting a letter from them, leave to remain in the UK may be granted by Temporary Migration if further efforts to obtain re-admission to his country of origin are unlikely to prove successful.⁷¹

The Home Office also issued specific guidance in the case of BOCs who were formerly citizens of Malaysia, like Teh, noting that the UK government was working with the Malaysian authorities to devise a scheme whereby they can be returned to Malaysia and reestablish Malaysian nationality from within Malaysia.⁷²

One positive outcome from the discussions between the UK government and Malaysia was the decision to suspend removals,⁷³ even though it did nothing to advance Teh’s request for nationality, which in turn would ground his right to remain in the United Kingdom permanently. After further refusals by the Home Office to recognize his status, Teh then sought to press the High Court for a judicial review of the Home Office’s decision, and his petition was refused in 2017 in part because the UK government contested Teh’s status as a stateless person because he holds British Overseas citizenship and is admissible to Malaysia.⁷⁴

As of September 2020, Teh is no longer considered a national by Malaysia, nor of the United Kingdom, and remains in limbo. Teh’s case bears many similarities to the plight of the Oxford-based Kashmiri families, where neither India nor Pakistan was prepared to address their claims. In their case, we see how historical antagonism between neighboring states can undermine the prospect of collaboration in determining “ineffective nationality,” as Massey proposes.

These examples are far from exceptional. Across the globe, there are many ways in which states may obstruct individuals from securing recognition of their claims or affirming their status. Even more glaring is how some states have conspired to keep people in precarious situations. Thus, minorities in Assam are currently facing the threat of exclusion from the all-India National Register of Citizens. Although the government claims to be updating the register to prevent immigrants from Bangladesh settling in India, millions of long-term-settled residents have been caught up in this exercise in retrospective immigration control. When a draft register was released in 2018, an estimated 4.1 million people were left off the list. Although this number has come down to approximately two million, many remain at risk of statelessness since local authorities refuse to accept official documents such as school leaving certificates (known as migration certificates) as evidence of status.⁷⁵

These case studies also challenge other methodological assumptions that underlie UNHCR’s results framework, above all the belief that some of its indicators accurately reflect the outcomes they seek to measure. As Teh’s case shows, the United Kingdom’s accession to both UN statelessness conventions and its introduction of statelessness determination procedures does not mean that the United Kingdom has resolved situations of statelessness. Rather, Teh’s case demonstrates that legal reform – UNHCR’s go-to solution – may not be sufficient.

Counting and Miscounting Stateless People

Within UNHCR, statistical reporting now focused on de jure statelessness, as recorded in the 2015 Statistical Yearbook.⁷⁶ No longer did UNHCR speak of de facto statelessness and those with indeterminate nationality. The figures presented, however, raised many questions about the methodologies used and the veracity of their sources. Until 2017, UNHCR’s formal position was that there were an estimated ten million stateless people in the world.⁷⁷ This number had come down from twelve million over the previous five years, with little explanation. Even though UNHCR recognized that its estimates were provisional, it continued to rely on them, amalgamating data sources and rough estimates.

In addition to their program of identifying and estimating the global population of stateless people,⁷⁸ the logic of reporting, of focusing on more closely defined categories of stateless groups, and the wider mandate that seeks to reduce and prevent statelessness, gave rise to a new ambition: UNHCR was to end statelessness.

The Politicization of Data

With glossy photographs reminiscent of Benetton adverts, UNHCR launched a 2014 campaign, #IBelong, to end statelessness within a decade – this, although its reporting on statelessness was still a work in progress, and it did not have reliable baseline data on the scale of the problem. Benetton eventually appeared as UNHCR’s formal partner, with its logo at the foot of UNHCR’s website. UNHCR also set unrealistic targets, including the collection of ten million signatures from the public in support of ten actions deemed essential to end statelessness.⁷⁹ By August 2020, the #IBelong campaign had secured 98,296 signatures – just under one percent of its target – and was attracting fewer than twenty-five signatures a month.⁸⁰

UNHCR published quarterly updates on the #IBelong campaign but, to date, there has been no independent assessment, no performance or output based evaluations, and no recognition that UNHCR and its partners are failing to meet their targets. Instead, UNHCR has called attention to the many recent pledges made by member states that include introducing statelessness determination procedures, improving birth registration, and providing training.⁸¹ What is more, UNHCR has also set itself further annual targets, including that 100,000 individuals will acquire nationality or have it confirmed by the end of 2020.⁸²

Furthermore, although UNHCR has improved its data collection, the significant gaps in its coverage and quality of information presented undermine its advocacy efforts. UNHCR has not yet arrived at a consistent position on the inclusion of those who do not neatly fall within its mandate. There is a lack of disaggregation in the figures presented, which leaves UNHCR’s data open to misinterpretation. It remains unclear if those with indeterminate status are truly considered stateless for the purposes of estimation.

Until recently, UNHCR gave the impression of an agency that was driving forward its ambitions blind to the aforementioned substantive methodological considerations. Official publications from 2019 now qualify that the data presented are incomplete, and on its website, there is an apologetic note which explains that it compiles data on two categories: stateless persons who meet the Convention definition (de jure), and persons with undetermined nationality, but that over the past decade these and the de facto category “have sometimes been applied inconsistently in different UNHCR country operations for the annual statistical reporting process.”⁸³

Despite these problems, the UNHCR continues to present as reliable the statistical information it has collected, which omits estimates from highly populated regions of the world where discrimination based on nationality, the denial of documents, and the refusal to accede to – and abide by – international legal instruments and standards are the norm. The same criticism could be leveled at UNHCR’s most vocal advocates, which published simplistic accounts that reiterated the agency’s claims and repeated its calculation errors,⁸⁴ though eventually they too started to raise questions.⁸⁵

Operational Challenges and Methodological Solutions

This account illustrates just how difficult it is for humanitarian agencies, including UNHCR, to establish accurate figures. It also records how institutional preferences may be formed. In the cases discussed, we note how statist and technocratic biases have privileged national sources as “reliable,” even as some states have engaged in efforts to redefine membership based on exclusive understandings of nationality. Such biases are not new: As Dunlop recorded almost ten years ago, the use of results-based management tools favored states over other beneficiaries, above all those who fell under its protection mandate.⁸⁶ In addition, UNHCR’s tendency to limit reporting on statelessness to de jure stateless populations – until very recently – may have encouraged a process of methodological revisionism where the numbers of stateless people in need of protection were rounded down. Narrowing legal definitions logically leads to undercounting.

As argued earlier, it is potentially a fallacious assumption that individuals and groups that may be experiencing persecution from a particular state and may have had their nationality withdrawn should then have their claims affirmed by the state in question. It is perverse to suggest that such states might be called upon to record the presence of these stateless people and remedy their situation. Even when states have grappled with the issues of statelessness and demonstrated a commitment to examine claims, a heavy evidentiary burden still falls on individual applicants. Even though statelessness determination procedures were introduced in the United Kingdom in 2013, additional rules have been designed that disadvantage applicants. In 2019⁸⁷ and again in 2020, the UK Immigration Rules were amended to include further requirements, such as the obligation to obtain a residence permit in the United Kingdom. The new rules still require a stateless applicant to have “sought and failed to obtain or re-establish their nationality with the appropriate authorities of the relevant country.”⁸⁸ As the case studies of the Kashmiri children and Teh record, seeking status on the basis of a claim to being stateless is far from straightforward.

How UNHCR identifies those under its statelessness mandate remains contentious. As recorded earlier, there was a tendency to take large numbers of people out of the category of statelessness by excluding de facto stateless individuals. Now, there is a shift to aggregate de jure and de facto stateless people as well as those with indeterminate nationality. While this might make reporting simpler, it does not inform our understanding of why these people are stateless and how their plight may be corrected.

There are many broader possible explanations for UNHCR’s attachment to such practices, which complement Reichel’s notion of normative path dependency discussed earlier. Sociologists have long sought to challenge the presentation of actors, including organizations, as rational and agentic; rather, they suggest that organizations operate in an environment constructed around social practices that give rise to institutional norms. One recurring theme is the notion of “institutional scripts.”⁸⁹ Drawing upon Berger and Luckmann’s phenomenological approach,⁹⁰ where the actor – be it an individual or organization – operates on a social stage and has a scripted identity that enacts a scripted action, for example, a role, Meyer argues that “actorhood” is also scripted by institutional structures. He claims that both actors (e.g., organizations) and actions (e.g., policies, decisions, innovations) have institutional scripts behind them: “The actor–action relation is a package, and as people and groups enter into particular forms of actorhood, the appropriate actions come along and are not usefully to be seen as choices and decisions.”⁹¹ Just as people fall into roles, so too do organizations.

In this chapter, we might consider UNHCR’s reliance on statistical measures, its quest for indicators, and the use of results-based management as part of an institutional script. As Sarfaty argues, institutions draw their legitimacy from international legal instruments that rely on indicators to operationalize global norms and assess compliance. Indicators drive agendas – “what gets measured, gets done.”⁹² As UNHCR engaged in comprehensive management and structural reform, it followed the example of other UN agencies and turned to managerialist approaches that relied on the collection of measurable data to advance claims of greater accountability, efficiency, and effectiveness. One might argue that a restrictive understanding of UNHCR’s 1951 mandate reduces the numbers of stateless people under its remit, and hence helps to demonstrate success and better positions the agency to meet its ambition of ending statelessness.

Recommendations

As the Conference of European Statisticians noted in 2008, UNHCR and its partners could improve the way they collect data on statelessness. There are some glimpses of progress, for example, in reporting on selected countries, where figures have been adjusted, as well as in recent conversations between UNHCR and critics who have presented compelling alternative methodologies, most notably the Center for Migration Studies (CMS).⁹³

Yet, to arrive at a better quality of data, the top-down approach of applying narrow legal definitions should be revisited. As noted earlier, most censuses rely on self-identification, while UNHCR’s definition of who counts as a stateless person is determined by the definitions found in the 1954 Convention. In this context, the inclusion of questions on citizenship in national censuses is indicative of a broader problem. While capturing data on those who may be considered de jure stateless, the use of national censuses also offers an opportunity to clarify what is meant by “indeterminate nationality,” and hence evidence of nationality and state recognition. Questions posed to respondents should, therefore, capture data on their access to rights, concomitant with definitions of citizenship. Although this approach takes us well beyond UNHCR’s reach, it would nonetheless assist the agency to have more standardized definitions and to remove some of the exceptions as found in the small print of its official reports.

In terms of UNHCR’s own reporting, as Kerwin et al. contend, the different ways in which statelessness arises require specific methodologies that cannot be applied across the board.⁹⁴ For example, if stateless people are located in a region that has witnessed succession or defederation, then that may encourage an investigation of rates of naturalization among de jure stateless people and the incorporation of those data in subsequent estimates. One might reasonably start by investigating de jure population estimates at the point when new nationality legislation is introduced. Equally, in countries that have introduced new nationality reforms, as in Madagascar where women may now pass on nationality to their children, it would be appropriate to adjust figures. In this instance, official demographic information would record that, under stable conditions, the numbers of stateless people would decline as children reach the age of majority. When adjusting population estimates, it is important to consider the interplay of other factors. If, as Balaton-Chrimes et al. observe, deprivation of nationality reduces the quality of health,⁹⁵ then this factor should be considered for its impact on life expectancy – though there are also conflicting studies that suggest limits to this approach.⁹⁶

The relationship between migration and statelessness should also be interrogated on a country by country basis to assess the status of migrant populations whose nationality status may have lapsed during their time spent abroad and who may be at risk of statelessness. For example, Danish nationals born outside Denmark may lose their Danish nationality on attaining the age of twenty-two, unless they apply between the ages of twenty-one and twenty-two to retain it.⁹⁷ Other countries similarly place restrictions on foreign-born nationals living abroad. Such an investigation requires contextual knowledge of the selected countries, the immigration histories of settled migrants, and up-to-date information on the country of origin of arriving migrants. It may require a mapping against the nationality laws of both countries of origin and destination for the selected migrant groups to determine their risk of losing nationality.

UNHCR could also take the bold step of affirming the status of certain groups as stateless persons, rather than bracket them off as people of “indeterminate nationality.” This is not without precedent. Not only has UNHCR abandoned the use of some accepted categories, such as de facto stateless, but it has also created new ones. We note that while UNHCR recognizes that stateless people may also be refugees and should be included in their data on refugees, it has reported on more than one category and has equally created a formal category of stateless IDPs in the case of the Rohingya.⁹⁸

The above recommendations may improve the ways in which UNHCR collects data. They may also help to advance the wider ambition of providing effective humanitarian protection and give greater meaning to its claims to support participation with beneficiaries, including stateless people. How UNHCR reports on those under its mandate has many knock-on effects, including cooperation with national governments and partner agencies that rely on their data, notably the International Organization for Migration and World Bank. Without accurate data on populations of concern for UNHCR, the task of identifying and allocating resources becomes considerably harder for them too.

Conclusion

When the international community addressed the plight of stateless people in the aftermath of the Second World War, statelessness was bolted onto the emerging refugee regime and only later emerged as an issue area in its own right.⁹⁹ Since then, statelessness has crept up the agenda and is now recognized as a global problem. Although UNHCR has included stateless people in its reporting for more than a decade, it began doing so without established definitions and lately has underestimated the scale of the problem.

For social scientists, this conclusion may not be surprising. As an international agency, UNHCR relies on the interpretation of international law and on this basis has experimented with the establishment of operational definitions. These definitions are neither sufficiently inclusive nor precise to capture the reality of a world where hundreds of millions of people are on the move, many without recognized status, and where others may be locked in discriminatory systems unable to enjoy such levels of mobility.

The absence of accurate data reduces the chances that UNHCR will be able to measure the effectiveness of its work and achieve its targets. As UNHCR recognizes, its own data are limited to under half the world’s countries and to stateless people under its mandate. Hence, UNHCR’s data are at best a rough projection of a much larger global problem.

UNHCR has argued that “the best way to address statelessness is to prevent it from occurring.”¹⁰⁰ This is undeniably true, but it is not a simple task. As Brennan argues, in her discussion of feminist approaches to understanding statelessness, the battle lines are not simply ineffective laws but rather the wide-ranging structures that permit hierarchies, privilege, and domination.¹⁰¹ As noted in this chapter, there are broader sociological explanations behind the use of narrow definitions and emphasis on statistical data and indicator-based frameworks that are found in many institutional scripts circulating among international organizations.¹⁰² Controversially, we might add that the persistence of such scripts is fostered by patterns of recruitment within UNHCR and partner NGOs – legal experts untrained in social scientific study who have not questioned the prevailing orthodoxy.

UNHCR could start by reviewing its own biases, including a top-down logic that drives demand for “results.” Equally, rather than exclude categories of stateless persons that are harder to identify, such as those who may have indeterminate status, it could further investigate their claims and grant them status, as it has done with Rohingya IDPs.¹⁰³ UNHCR and its partners would do well to constantly review the causes of statelessness, including the prospect of millions of people living in situations of protracted displacement as a result of the global crises mentioned, and use this information to inform their profiling and data collection. These recommendations require both greater contextual knowledge and familiarity with more sophisticated demographic methods. In this context, the creation of a Joint Data Center on Forced Displacement with the World Bank is encouraging, provided it includes stateless people within its remit and does not fall prey to the deficiencies of the aforementioned results-based approaches.¹⁰⁴ If the aim is to end statelessness by 2024, then it is urgent UNHCR and its partners address their limitations.

6 Reflections on Anti-immigration Narratives and the Establishment of Global Apartheid

Yajaira Ceciliano-Navarro , Tanya Golash-Boza , and Luis Rubén González Márquez

Apartheid Ideology: A Persistent World Order

Although Apartheid in South Africa was dismantled in 1994 in the aftermath of massive national demonstrations and international pressure, the ideology of apartheid persists on a global scale. The global apartheid paradigm helps to explain global trends in the distribution of wealth and rights according to place of birth, race, and ethnicity, where some groups face more movement restrictions and criminalization than others.¹ Some of the main principles of this paradigm are White racial superiority, persistent fear of national-identity loss, a desire to protect national territories, the war against immigrants, and the idea of free markets as the only avenue for prosperity.² Those who subscribe to this ideology resort to creating laws, norms, and institutions that allow them to restrict people’s movements, which at the same time distributes resources and inequalities along racial lines. Individuals placed at the bottom of this hierarchy are usually people of color who have limited geographic mobility due to visa restrictions. These people are often unable to enjoy fundamental human rights, such as employment, education, and housing. In contrast, White people, who are a numerical minority in the world, are placed at the top of this racial structure and enjoy the vast majority of existing wealth and privileges.³ This racial hierarchy promotes a world order characterized by racism and ethnocentrism. It operates at political, social, and geographic levels, and violates norms of justice, basic needs, human rights, democracy, and racial equality.⁴ The global apartheid ideology limits the opportunities of most people in the world.⁵

The global apartheid ideology is organized around narratives that criminalize immigrants and immigration. This criminalization justifies the establishment of different mechanisms that control and restrict immigrants’ movements. People who have already crossed borders become vulnerable in diverse ways; due to fear, they do not access or request fundamental rights, and due to their status, they are more at risk for deportation. With restrictive immigration policies, unauthorized immigration tends to increase but the migratory process is more expensive and riskier. As if these immigration restrictions were not enough, this segregationist ideology also adopts subtle mechanisms of control, removal, and exploitation of migrants worldwide. These actions result in the preservation of wealth for a small minority.

The ideology of global apartheid fosters negative discourses and actions regarding the arrival of undocumented and poor immigrants from the Global South into the Global North. These actions can be described as a war against poor and undocumented immigrants.⁶ Given these circumstances, freedom of movement has transformed into an expensive and unsafe process – a privilege but not a right. One of the novelties of how this ideology operates today has been defined by Harrison as micro apartheid, where new territories and regions exhibit subtle racial and ethnic segregation mechanisms.⁷ In Europe, this trend continues to increase. France, Spain, and other European countries block the entrance of hundreds of migrants daily.⁸ At the same time, countries such as Chile and Israel have been adopting more subtle mechanisms for immigrants’ removal.⁹ These “well-intentioned” mechanisms that help immigrants return to their home countries are part of this global trend. In this section, we analyze the modalities of reproduction of these discursive mechanisms and practices in different regions of the world.

Narratives of Immigrants as a Threat and Criminalization of Immigrants and Their Movements

To achieve the criminalization of migrants, governments, media, and anti-migrant groups resort to narratives that portray them as inferior, unassimilable, and a threat to the country’s stability, national identity, labor markets, or national security.¹⁰ The media shapes these public imaginaries, in which migrants are represented as violent and aggressive savages that must be stopped.¹¹ Sharma argues there is a growing perceived need to protect migrant-receiving nations from “dangerous aliens.”¹² Once the portrayal of immigrants as a threat is invented, governments and other agents justify the creation of laws that prevent and punish immigrants’ movements. The discursive representation of immigrants of color varies in different regions of the world, yet themes of immigrants as a problem and a threat are universally present. In the United States, for example, these populations have traditionally been depicted as a threat to national security and are considered violent and vicious.¹³ Hooghe and Dassonneville state that narratives in the United States “focused on racist resentment toward ethnic minority groups,” mostly with regard to Mexicans.¹⁴ Otto Santa Ana argues that the United States’ political narratives severely dehumanize immigrant workers.¹⁵ This dehumanization includes animalizing immigrants, which means portraying them as wild animals or savages that must be hunted by potent border predators of the state. For instance, along the border regions of the United States and Mexico, it is common to use terms like coyotes to refer to smugglers and pollos (chickens) to describe undocumented immigrants.

Immigrants are considered a burden in other regions and are often used as scapegoats for internal social problems such as unemployment or security. In Europe, migrants have been used by some extreme right-wing parties, whose leaders take advantage of growing discontent toward immigration policies and the influx of refugees.¹⁶ For these radical right-wing parties, immigrants threaten national identity (the “necessary” ethnic homogeneity) and also increase “competition” with locals for limited resources such as employment. In Europe, these narratives also permeate mobilizations in response to the refugee crisis.¹⁷ Richmond and Valtonen argue that wealthy and predominantly White countries have initiated a crusade to protect themselves from these perceived threats to safeguard their territories and privileged lifestyles.¹⁸ These discourses emphasize feelings of insecurity around immigrants, specifically the perceived threat they pose to the economy, society, racial purity, and national identity.¹⁹ For Fennema, one reason for the resurgence of these parties and narratives as well as their sympathizers is the growing perception of the dysfunction of national governments.²⁰ Decision-making is viewed as having been centralized at the level of international organizations. Thus, among the public, there is a strong belief that national governments have lost credibility, leadership, and control over their borders, and these new far-right parties advocate for recovering state control over their countries.²¹

These ideologies have gained strength for different reasons. According to Richmond and Valtonen, these ideas grow due to the nostalgia evoked by a “simple life” – the idea that, in the past, the inhabitants of wealthy countries felt safer in more ethnically or racially homogeneous places.²² With the demographic transformations linked to global migration, these groups now feel that they are living in less secure and more “chaotic” conditions because of ethnic diversity. Other scholars posit that these criminalizing characterizations originate in fears over global terrorism that intensified after the attacks on New York and Washington, DC (9/11/01), Madrid (3/11/04), and London (7/7/05). From such a perspective, all immigrants of color from poor countries are a threat that must be stopped and punished.²³

Control and Restriction of Immigrants’ Movements

Governments attending the call to defend their nations against a perceived immigration threat rely on a series of structures and institutions to operate. Restrictive immigration laws constitute one of the most effective instruments for global apartheid’s organization and application.

Immigration Restriction and Immigrants’ Control in the United States

The United States was a sovereign nation for more than a century before immigration became a political issue. The first major piece of legislation on immigration was the Chinese Exclusion Act of 1882. This Act set the bar for entry into the country and had an openly racist frame directed toward a specific group: Chinese workers. By excluding members of this group based on class and race, the Chinese Exclusion Act paved the way for the immigration policies of the twentieth century.²⁴ Although repealed in 1943, the judicial decisions derived from the Chinese Exclusion Act still shape current legal approaches to immigration. The second relevant moment in immigration legislation was the Asian Exclusion Act of 1924, which expanded the regulations of the Chinese Exclusion Act and prohibited most immigration from Asia into the United States.²⁵

These restrictive laws were repealed in 1965 with the passage of the Hart-Celler Act, which set an annual quota of 20,000 immigrants from each country of the world. This act changed the face of migration to the United States – from primarily European to increasingly Asian and Latin American. In this context of multiethnic migration, the United States began to pass new laws restricting the rights of migrants. The 1996 Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) eliminated judicial review for some deportation orders and established mandatory detention for a significant number of non-citizens.²⁶ They also allowed for the use of secret evidence in specific cases. Some of the most damaging consequences of these laws are the deportations of legal permanent residents. Under IIRIRA, if permanent legal residents are found guilty of “aggravated felonies,” they face mandatory deportation. Relatively minor crimes such as shoplifting or drug possession could lead to mandatory deportation for long-term residents.²⁷

After these laws were implemented, immigrants from Latin America and the Caribbean became more likely to be deported. The punitive and severe 1996 regulations disproportionately affect people of color. Kevin Johnson argues that, since the majority of immigrant populations living in the United States are minorities of color, the differential treatment toward non-citizens corresponds to legal practices that amount to racial discrimination.²⁸ These practices have created an environment of tension and fear within Latino communities.²⁹

The ideology of global apartheid was further strengthened with President Trump’s election. He campaigned for the presidency primarily on the slogan “Build the Wall.” Although there has long been a physical structure separating the United States from Mexico, this slogan itself is harmful to migrants as it implies that Mexicans pose a threat to the United States. On the campaign trail and as president, Trump has continued to take openly anti-immigrant positions. In several speeches, President Trump has portrayed immigrants as a threat by suggesting they are violent, criminal, and dangerous people.³⁰ These anti-immigrant narratives, accompanied by a series of legislative decrees have led to the removal of thousands of immigrants and the expansion of immigration bans to more countries.

US Immigration Policy and the Southern Border

The ideology of global apartheid was challenged by the recent “Migrant Caravan” (or “Caravan for Life”), which began in 2018 in San Pedro Sula, Honduras. This caravan was formed by Salvadoran, Honduran, and Guatemalan migrants who escaped the economic deprivation and violence of their countries. According to different reports, the caravan reached in some moments 17,000 people.³¹ However, official data confirms that only five thousand of them reached the northern border of Mexico. On their way, Guatemala and Mexico closed their borders in response to pressure from the US government. However, this migratory event marked a milestone since it was not the traditional clandestine migration; the caravan was visible, massive, and filmed live in broad daylight. The caravan challenged and confronted classic actors in migration processes such as traffickers, governments, and NGOs. The migrant caravan reconfigured conventional ideas of clandestine migration. It also reconfigured territories, particularly for Mexico, which has traditionally been a migrant transit country and, on this occasion, became a “barred” country.³²

Immigration Restriction and Control of Immigrants in Europe

European nations have also taken radical measures to keep people from poor countries out of their territories.³³ These measures have been supported by right-wing governments, parties, and anti-immigrant discourses favoring increased restrictions on African migrants. For van Houtum, this has been manifested significantly in the reinforcement of borders and territorial limits: “[T]he European Union (E.U.) has composed a so-called ‘white’ Schengen list, and a ‘black’ Schengen list and the white list represents the countries whose citizens do not need to apply for a visa for a visitor transit in Schengen countries.”³⁴ These lists indicate who is welcome (Whites) and who is not welcome (non-Whites) in Europe. This trend has continued in Europe after the migration crisis experienced in 2015. Many countries closed their borders in 2015 when more than a million migrants and refugees from Syria tried to reach the continent. Conflicts arose due to the different responses of each country to this migration crisis. While countries like Slovenia and Croatia closed their borders, others like Germany opened their borders and received a large number of refugees. Germany’s attitude, described as generous, has been recognized internationally; however, it has sparked conflicts within the European community. Immigration is still a subject of controversy and contentious responses by European countries.³⁵

Other expressions of this paradigm are present in different countries in Europe. For example, the migrant detention camp operating on the island of Lesvos, Greece, is a human rights crisis. Media have reported that thousands of migrants from various countries are stranded in Lesvos. Due to political decisions in different European countries, these migrants have been unable to continue their journey to Europe. The situation has become unsustainable not only for stranded migrants but also for the island’s inhabitants.³⁶

Denmark, a country where immigration was not previously present in the political agenda, has proposed similar initiatives designed to isolate immigrants.³⁷ Liberal parties have discussed sending “undesirable” immigrants to the small islet of Lindhom (in the Baltic Sea), with barely any infrastructure. According to a report by El País, these immigrants would be required by law to leave the Scandinavian Kingdom.³⁸ The Minister of Immigration, Inger Støjbeg, who is from the liberal party Venstre, declared on Facebook: “They are not welcome to Denmark and, they have to know it!”³⁹ As reported by El País, this is just one among more than one hundred measures the Danish government has taken against immigrants.⁴⁰ As van Houtum affirms, “with the construction of a gated island of wealth, and with the conscious denial of regular access to citizens from 135 countries, the E.U. widens the gap globally and regulates mortality of people on a global scale.”⁴¹ All these restrictions mean that immigrants are increasingly vulnerable during the migration process and also when they are in the destination country, as described in the next section.

The Creation of Migrant Vulnerability

Restrictive border policies make migrants more vulnerable both during the migration process and after their arrival in the country of destination. In the context of extreme global inequality, migration is the best and perhaps even the only choice to achieve a decent standard of living for a wide range of groups.⁴² Most people in impoverished conditions do not have the option of legally moving to a wealthier country. When they decide to migrate illegally, they become vulnerable to danger in the migration process as well as after arriving in the host country.

Vulnerability in the Immigration Process

When people choose to migrate despite legal restrictions against doing so, they are resisting “the territorial confining and material deprivations which the system of global apartheid imposes on them.”⁴³ In this process, Spener argues, “migrants face a wide variety of forms of personal, structural and cultural violence.”⁴⁴ For example, migrants from Senegal travel in rickety boats across the Strait of Gibraltar to enter Europe through Spain. As reported by the United Nations High Commissioner for Refugees (UNHCR), in 2016, more than 5,000 migrants died or disappeared in the Mediterranean Sea.⁴⁵ Other NGOs say the number of deaths could be more than 13,000.⁴⁶ Additionally, there is evidence of at least 20,000 people trying to reach Europe who died in the Mediterranean Sea in the past two decades; meanwhile, from 2000 to 2013, the number of immigrant deaths among those trying to reach Australia is approximately 1,500.⁴⁷

In August 2010, Mexican authorities discovered the bodies of fifty-eight men and fourteen women who were murdered and piled in the small room of a ranch near the city of Matamoros, which borders the United States (in a dark irony, the city name literally means “kill moors”). The dead migrants included people from Brazil, Ecuador, Guatemala, and other countries. Although no one has been convicted for their murders, authorities suspect Los Zetas – a paramilitary criminal organization from Mexico – were the perpetrators. The murdered migrants probably refused to comply with the organization’s demands to become hitmen and drug smugglers or could not afford an extortion payment. Human rights organizations estimated that 20,000 immigrants are kidnapped every year in the journey to the United States from Latin America.⁴⁸ A significant number of Guatemalan and Brazilian immigrants report that traveling through Mexico was the most dangerous part of their journey.⁴⁹ This journey is particularly unsafe for women and children: as published by Amnesty International, six of every ten Central American women and girls are victims of sexual violence during their journey through Mexico.⁵⁰ The range of risks involved in this stage of the journey is a direct consequence of restrictive migration policies.

Nevertheless, despite all the risks and the new scenarios of hypervigilance, immigrants continue their odyssey; as van Houtum states “they adapt to the new rules, invent personalities, disidentify themselves by throwing away their papers or even crudely erase their fingerprints, that is, immigrants multiply and constantly build in new liminal forms.”⁵¹

Living under the Threat of Deportation

The vulnerabilities that migrants face occur throughout the migration process. However, once immigrants manage to reach their destination, they live under the threat of these deportation regimes. The fear under these immigration policies changes family and community dynamics. Immigrants and their families become more vulnerable due to the fear of deportation. Immigrant workers do not claim their labor rights and are, therefore, more exposed to labor exploitation. Likewise, families, for fear of leaving their homes, also see their health and education affected negatively.⁵²

In Europe, by 2016, the number of unauthorized immigrants peaked at 4 million. Many of these immigrants are refugee asylum seekers who arrived during the immigration crisis in 2015.⁵³ This crisis led to a growing migration emergency in Europe, with an increase in border closures and surveillance of migrants’ entry.⁵⁴ This crisis also led to an increasing number of deportations. Some countries have been accused of using racial profiling to identify unauthorized migrants. In the United States, the high numbers of unauthorized migrants (11 million), combined with anti-migrant narratives and restrictive immigration, have created the conditions of possibility for mass deportation.

The approval of the 1996 Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act in the United States facilitated mass deportation by allowing the government to remove individuals without judicial review. According to official statistics in the last three decades, the United States has deported more than 7 million people. Most of these people were men from Latin American countries, revealing raced and gendered patterns in mass deportation.⁵⁵ This deportation regime caused many harmful consequences for individuals, families, and communities.⁵⁶ For example, millions of children have been separated from their parents as a result of deportations. The mass deportation system in the United States is very particular, not only because it expresses specific elements of the apartheid ideology, but also because its laws have historically been racist and discriminatory. Furthermore, the United States deportation system is a paradigmatic case of the negative and unquantifiable consequences for deportees, their families, communities, and the countries to which they have been forced to return.⁵⁷

Multiple sources report that Spain has deported an average of 20 immigrants per day since 2011 (a total of approximately 50,000), most of them Moroccans. Government agencies cite their “irregular” status in the Spanish territory as a reason for expelling migrants.⁵⁸ Meanwhile, France, a country with historically stable relationships with Spain, has a policy of deporting migrants to regions outside the European Union, but also within it – mostly to Spain. Since no official physical boundaries separate the two nations, activists argue that France selects immigrants for deportation to Spain according to an ethnic profile. Between January and October 2018, France deported almost 10,000 immigrants to Spain.⁵⁹

In Australia, like in the United States and Europe, deportations have also increased in the twenty-first century. Whereas only about 1,000 people were deported a year in the 1980s, by 2015, this number had risen to 10,000 per year. At the same time, there were about 13,000 people in immigration detention facilities in Australia in 2014, compared to fewer than 100 in 1990.⁶⁰ Many people deported from Australia during this time were residents who had not returned to their countries of birth in a long time. Immigration enforcement in Australia has thus imposed many mental, social, and economic dilemmas for deported people.⁶¹

Each of these actions in Europe, the United States, and Australia play a fundamental role in preserving global apartheid.⁶² At the same time, they become binary decision-making mechanisms: to admit entrance through borders or not, to include or to exclude.⁶³ These actions show how the United States has recently reinforced the apartheid ideology with the border wall construction and everyday anti-immigrant discourses, and how European countries have adopted this doctrine to maintain racial segregation, particularly in its application to people of African and Middle Eastern origin.⁶⁴

The Emergence of a Desperate, Disposable, and Cheap Labor Force

As a result of these restrictive immigration and deportation regimes, immigrants must choose between their confinement in poor countries and joining a desperate labor force in another country.⁶⁵ This situation turns out to be highly convenient for the global economy, which requires a workforce with these characteristics. These workers are incredibly vulnerable. Employers can easily fire them, cut their salaries and benefits, and prohibit them from forming unions, which precludes the possibility of strikes or negotiating labor standards. In this context, wealthy countries manage to impose conditions that produce a population of vulnerable laborers. Wealthy countries are aware that, eventually, this workforce will be integrated into global exploitation circuits before and during their migration as well as after deportation. These trends have been reported in countries like Canada and Israel, and in the Latin American region where immigrants with or without work visas are likely to be exploited.⁶⁶ In Latin America, transnational service companies hire people who have been displaced by neoliberal policies or deportation since a substantial part of this population is fluent in the English language and has knowledge of North American culture.⁶⁷

Establishment of Subtle and Racist Mechanisms of Control, Removal, and Exploitation of Immigrants

Segregationist ideology can operate through openly racist and exclusionary immigration laws. However, as mentioned at the beginning, the efficacy of these ideologies relies on the ability to recreate themselves in more subtle yet still racist methods of control, removal, or exploitation of migrants. Border closures for humanitarian or political purposes have been established in various regions of the world; detention centers for immigrants have also been part of this new global order. More subtle mechanisms such as “voluntary” return programs have been identified, where migrants are forced to return to their countries of birth regardless of the reasons they immigrated. Finally, and in an even more sophisticated way, temporary work programs in which migrants are invited to work under exploitative conditions have spread around the Global North.⁶⁸

Border Closure for Political, Humanitarian, and Security Reasons

In 2015, Costa Rica witnessed the arrival of a large number of Cuban and African immigrants who were in transit to the United States; the situation became problematic when the Nicaraguan government decided to close its southern border. As a result, at least 5,000 Cubans and hundreds of Africans became stranded in Costa Rica. Nicaragua justified its actions by arguing that Costa Rica acted irresponsibly by allowing these people to pass through their borders. Nicaragua vigorously defends its territory against threats such as drug trafficking, gangs, and human trafficking.⁶⁹ However, these actions also led to the death of twelve African immigrants, who drowned in 2016 while trying to cross Lake Cocibolca in Nicaragua, in their journey from Costa Rica to the United States.⁷⁰

A similar situation has been suffered by hundreds of thousands of people who were forced to leave Venezuela in recent years due to the country’s political crisis. According to the UNHCR, more than 3 million Venezuelans have been forced to flee from Venezuela in 2015. Many crossed the border into neighboring countries, but this unleashed a crisis in the region. In Ecuador, thousands of Venezuelans found themselves stranded when Ecuador decided to close the passage through Rumichaca International Bridge. According to reports, this forced an increase in the undocumented crossing that involved a perilous route for women and minors. International organizations have requested Ecuador to “refrain from actions like closing borders, restricting access for people who might need international protection, punishing irregular entry or presence, requiring official documents like passports and records of past criminal activity, and resorting to immigration detention and hate speech.”⁷¹

In Europe, one typical example is the ongoing conflicts in the Island of Lesvos mentioned previously. These conflicts between countries and regions over migration policy lead to negative consequences for migrants and at the same for the inhabitants in these territories. For Harrison, these new territories of micro apartheid hold a liminal position in the global racial hierarchy, in which countries and regions ally themselves with the dominant White minority. These countries attempt to sandwich themselves “between the ‘Civilized White’ and the ‘Barbarous Black’ countries.”⁷²

“Voluntary” Return Programs Enacted by Racist Ideologies

In October 2018, the Chilean government set up a Plan of Humanitarian Return to return Haitians living in Chile to Haiti.⁷³ Given the reasons Haitians migrate, this voluntary return is more of a punishment than “help” from the Chilean government.⁷⁴ Undocumented Haitians living in the country were invited to sign a document requiring them to leave and not return to Chile for nine years. Scholars labeled these measures as racist due to their singular focus on Haitians – who are nearly all Black.⁷⁵ In an interview with Widner Darcelin, spokesman of the Haitian Communities in Chile, he described this allegedly humanitarian program as a deportation program.⁷⁶ Salazar and Ramirez affirm that this program is entirely discriminatory since it fundamentally targets Haitians living under extreme poverty in Chile.⁷⁷ The Chilean government has justified these deportations by arguing that Haitians have not been able to overcome cultural barriers to integrate into Chilean mainstream culture.⁷⁸ According to this report, in the five months since the plan was implemented in October 2018, almost 700 Haitians signed a commitment to “voluntary” return.⁷⁹

Some studies reported how the Israeli government had invited African immigrants to leave the country voluntarily, a policy that follows a similar segregationist logic, where it has offered African immigrants US $3,000 either to return to Africa or move to another country; if they refuse, they are threatened with the alternative of facing imprisonment.⁸⁰ From the government’s perspective, this initiative turns the deportation of temporary or irregular migrants into a voluntary and humanitarian process of leaving the country. It excludes women, children, parents of dependent children, and slavery and human trafficking victims. However, this policy is intended to remove “infiltrating” groups from the territory, which, according to the Israeli government, entered without proper documentation.⁸¹ Furthermore, the government has initiated an anti-immigrant campaign based on the idea that “migrants might threaten the Jewish character of Israel.”⁸² Although a significant number of these immigrants are fleeing violence and armed conflicts in their home countries, the government has categorized them as economic immigrants rather than refugees.

Free Trade Agreements

Another strategy for creating a disposable workforce has been through free trade agreements. These pacts create the conditions for thousands of people to lose their jobs in their home countries and force them to migrate without documentation to wealthy countries. Immigrants with undocumented status are easily exploited. In this regard, Harrison states that “this neoliberal regime – in which developed nations aid poorer nations on the condition that they restructure their economies and political systems to accommodate maximum wealth accumulation by multinational corporations – has arrived packaged as so-called free trade.”⁸³

Walia cites the North American Free Trade Agreement (NAFTA) as an example since it dramatically impoverished many Latin American countries.⁸⁴ In the case of Mexico, more than 15 million people fell into poverty, and more than 1 million were displaced. Many Mexicans were forced to leave their communities, and now work as undocumented immigrants in the agricultural sector of Canada. Willen provides examples of this cheap labor export trend in Israel, as well. The Israeli government recruited workers from Thailand, Romania, Turkey, and China, responding to employers’ demands. These workers are very “attractive” since employers presumed these workers are politically neutral. These employers are also attracted by the flexibility in which these workers are hired, meaning there are few labor regulations – making it easier to exploit them.⁸⁵ Willen describes the circumstances in which these movements and hiring processes occur as a form of human trafficking.⁸⁶

These examples show how apartheid ideology operates and how it achieves its objective of racial segregation.⁸⁷ People of color are either forced to remain in their countries of birth or suffer exploitation or even death if they attempt migration in search of better circumstances. These actions show covert racism, whereby governments justify their restrictive migration policies by claiming that immigrants are not capable of integrating and therefore are culturally incompatible with the native culture. In reality, these arguments are an expression of racial intolerance.⁸⁸

Preserving Wealth among a Minority

The mechanisms discussed help maintain the global apartheid system by eliminating most non-White people from wealthy countries and confining them to much poorer nations. Thus, they seek to guarantee that the vast majority of the world’s wealth stays in the hands of a White minority.

For scholars like Feagin and Ducey, this form of global organization preserves the power and wealth of Whites by creating an unfair distribution of resources.⁸⁹ According to Titus, the practice of apartheid includes the idea – implicitly assumed or explicitly stated – that a particular group has more rights than others, for example, the presumption that American citizens have a right to access social security while Mexican immigrants do not.⁹⁰ Global apartheid involves a strong commitment to protecting and preserving the privileges of White people, which take the form of regulations, immigration laws, and work programs, among other measures. All these mechanisms permit the ideology to operate.

These immigration laws, work programs, and other types of regulations establish racial categories that justify the existence of privileged and unprivileged groups. This ideology separates who belongs to a determined territory and who ought to be removed from it, or conversely, who holds rights and who does not.⁹¹ At present, there is a concern about the excessive growth of this doctrine, mainly because this ideology resorts to increasingly subtle mechanisms. These practices invigorate racial segregation.⁹² For Feagin and Ducey, this trend is historically rooted in the aggressive exploitation of Native Americans and African slaves.⁹³ They argue that White elites have created all possible mechanisms to maintain this social order, from laws to specific institutions.⁹⁴ Although Feagin and Ducey’s arguments apply primarily to the United States, these same ideologies can be found worldwide.

Conclusions

Today’s model of global apartheid has shaped migratory policies globally. The rise of highly popular extreme right-wing parties in Europe and anti-immigrant discourses throughout the settler colonial states of the United States, Canada, Israel, and Australia are evidence of the consolidation and spread of this ideology.⁹⁵ In addition, we have seen increased evidence of micro apartheids, which configure segregation at a smaller scale and in a more subtle manner.⁹⁶ Cases of policies in Israel, Chile, and Ecuador that limit human mobility and institute racial segregation are some examples of this broader tendency.

Restrictions on immigration at the global and local levels reflect how the global apartheid ideology enacts and justifies its goals through a wide range of discursive tropes and mechanisms, grounded in new racism. The specifications of this process are the programs of temporary work, voluntary return programs, and an overwhelming number of requirements for legal migration. These measures all severely restrict the possibility of poor people of color around the world – limiting their options to improve their living conditions.

The core problem with this ideology is the idea that some groups deserve rights while others do not based on the place of birth.⁹⁷ During the apartheid regime in South Africa, resource distribution followed racial boundaries. Under global apartheid, privileges and resources are allocated based on national origin, which creates a racialized divide between Europe and Africa and between the United States and Latin America.