‘Burqa Avenger’: Law and Religious Practices in Secular Space

The current debate over the hijab is often understood through the lens of a ‘clash of civilizations’ between a tolerant ‘secular’ ‘West’ and a chauvinist ‘religious’ ‘East’. The article argues that this polarization is the result of a specific secular semiotic understanding of religion and religious practices which is nowadays embedded in western law. In my analysis, secular’s normative assumptions, played around the control of women’s bodies and the definition of religious symbols in the public sphere, work as a marker of ‘citizenship’ and ‘racialized religious belonging’. Through women’s bodies, western/secular law creates a link between gender, religion, ethnicity and belonging which forms a specific law and religious subject. Thus, secularism emerges not as the separation between private and public, state and religion, but as the reconfiguration of religious practices and sensitivities in the public secular space through the control of the visible.     

The EU external border as a site of preventive (in)justice

The aim of the article is to fill a gap in the literature on the externalisation of immigration control by focusing not on practices of extraterritorial immigration control but on the externalisation of immigration control at the EU external border. The article will examine four parallel and inter-related trends of preventive injustice on the border: the denial of law and pushbacks, and their handling by judicial authorities and EU institutions and agencies; the emerging framework of the instrumentalisation of migration; the normalisation of border procedures based on the fiction of ‘non-entry’; and detention of third-country nationals at the border, to back up non-entry policies. The article will highlight the rule of law deficit such externalisation entails.     

“Impossible Families”: Mixed‐Citizenship Status Couples and the Law

This article explores the complex and contradictory relationship between citizenship in the law and the immigrant reality of mixed‐citizenship family life through in‐depth interviews with individuals in mixed‐citizenship marriages. An examination of mixed‐citizenship marriage exposes the inadequacies of approaching citizenship as an individual‐centered concept. The data indicate that, though both immigration and citizenship laws focus on the individual, the repercussions of those laws have family‐level effects. Because of their spouses' immigrant status, many citizens are obliged by the law to live the immigrant experience in their own country or to become immigrants themselves.     

Civic Integration,Migrant Women and the Veil: at the Limits of Rights?

Controversies surrounding the wearing of the veil by Muslim women in Europe have coincided with a resurgence of interest in ‘pathways to citizenship’ and integration testing. This article argues that the historical vestiges of discrimination in immigration and citizenship laws persist today in the scrutiny of the cultural affiliations and practices of aspiring immigrants and citizens. Muslim women have been placed at the center of such scrutiny, increasingly defined by the arbiters of belonging as les anormeaux. This article explores recent legislative developments on the wearing of the veil in France and examines these developments in the light of the expansion of integration testing and human rights law's normative commitments to more just multicultural arrangements.     

Struggles against subjection. Implications of criminalization of migration for migrants’ everyday lives in Europe

The criminalization of migration has, over the last decade, gained unprecedented focus in migration, criminology and socio-legal literature. Recently, there have been some developments critically revisiting the criminalization thesis, particularly with reference to the European experiences: criminal law might exist ‘on the books’ but quite often it is not actually enforced in immigration practice. Therefore, whilst the incorporation of criminal law into the immigration domain serves mainly symbolic functions to demonstrate a government’s firm grip over immigration control, it also legitimizes a discourse presenting migrants as potential criminals, cheats and abusers. This begs the following question: how do migrants respond to this increasing conflation between criminal and immigration domains in the wider social context? How are the official and public discourses over ‘crimmigrant bodies’ reflected in migrants’ everyday life experiences? Do migrants resist, reproduce or redefine this criminal labelling? I grapple with these questions while qualitatively investigating the experiences of 270 return migrants from four European countries (Norway, Netherlands, the UK and Portugal): migrants’ responses to the stigmatizing force of symbolic criminalisation do not always mean resistance, but, quite often, are placed on a continuum between the contestation and the reproduction of the stigma and the hegemony of the law.     

Undocumented consciousness: Citizenship and illegality in the lives of US citizen youth

This paper examines the impact of immigration law on US citizens' understanding of legal status categories. Prior research on legal consciousness has uncovered the ways in which undocumented persons make sense of and navigate their legal position in society. Less is known, however, about the paradox of US citizen children who are legally protected by their citizenship yet grow up in the context of their parents' precarious immigration statuses. Drawing on interviews with US citizen youth and undocumented parents, I conceptualize the phenomenon of undocumented consciousness to explain how US citizens make sense of parental legal status vulnerability. By witnessing their parents' blocked opportunities from work, travel, and other aspects of life, youth begin to attach meaning to citizenship and its protections, all the while forming an understanding of what it means, practically, to live in the United States with and without legal status. Findings reveal the mechanisms by which it is possible for functions of immigration law to have adverse impacts on the lives of US citizens themselves.     

The Politics of Rule of Law Reform: From Delegation to Autonomy

How can we understand the delegation of power and authority – for example, from a polity to an administrator - in a world of fragmented governance? In this paper, I introduce the practices of contemporary ‘rule of law’ and ‘governance’ reform, which reframe this question in politically powerful ways. These practices are increasingly important in development contexts, and beyond. Practitioners begin with the assumption that some sort of administration occurs in the development contexts in which they work. They then focus on how to convene a political community in which to embed – and potentially legitimate - that administration. They thereby reconfigure the question of delegation into one of autonomy – or managing the extent to and ways in which the administrative legal system self-produces. In doing so, I argue that contemporary rule of law practitioners wield constitutional power under the rubric of workaday administrative reform. At the same time, they efface their political accountability.     

Gendered Paths to Legal Citizenship: The Case of Latin‐American Immigrants in Phoenix,Arizona

In this paper we seek to contribute to a greater understanding of legal citizenship by exploring the gendered experiences of Latin‐American‐origin immigrants in the greater Phoenix metropolitan area as they go through the legalization process. To explore this gendered angle we rely on in‐depth interviews conducted from 1998 through 2008 with women and men from Guatemala, El Salvador, Honduras, and Mexico. The data reveal that although immigration policies and procedures are presumably gender neutral, they are in fact inflected with gendered meanings and enacted in gendered social structures. Gender ideologies permeate the processes to differentially affect the legalization, permanent legal residence, and citizenship processes of immigrant women and men. This article points to key gender inequalities in immigration law.     

The Politics of a New Legal Regime: Governing International Crime through Domestic Immigration Law

Through an analysis of a unique and understudied unit within the US Department of Homeland Security (DHS), the Human Rights Violators and War Crimes Unit (HRVWCU, or “the Unit”), this article addresses the following theoretical and policy question: once someone has been admitted to the United States and granted permanent residency, or even citizenship, how does the law facilitate the reversal of that decision based on acts committed long ago and far away? We argue that the HRVWCU has created a significant new way to govern immigration through crime—specifically international crime—while simultaneously trying to ensure justice for mass atrocities through immigration law. In offering an overview of the Unit's origins and approach in blending international criminal law, domestic criminal law, and immigration law, we show how this Unit reflects an expansion of crimmigration in the United States and abroad. In order to illustrate the dilemma of internationalized crimmigration, the article focuses on the Unit's cases related to war crimes in Liberia and Bosnia, which have two very different (at least from the perspective of international criminal law) types of alleged perpetrators: those who allegedly gave orders and those who allegedly followed orders.     

Crimmigration at the Local Level: Criminal Justice Processes in the Shadow of Deportation

In recent decades, authorities have adopted a number of programs that tether the criminal and immigration enforcement apparatuses in novel ways. This mixed methods case study assesses the impact of such programs on local criminal justice processes and outcomes in King County, Washington. Although the empirical research on the effects of such programs is scant, the emerging literature on legal hybridity suggests that the enmeshment of the criminal and immigration systems is likely to enhance the state's power to detain and punish. The quantitative results support this hypothesis: non‐citizens flagged by immigration authorities stay in jail significantly longer than their similarly situated counterparts. Qualitative focus group interviews with prosecuting and defense attorneys identify four key mechanisms by which Immigration Customs and Enforcement detainers alter the incentive structure, impact decisionmaking, and extend jail stays for non‐citizens. Together, these findings suggest that immigration law and the threat of deportation now cast a long shadow over local as well as federal criminal proceedings, and enhance penal pain for non‐citizens. Implications of these findings for the “crimmigration” literature and research on the effect of citizenship status on criminal justice outcomes are discussed.     

The Law on Citizenship of the USSR

The new Law on USSR Citizenship, adopted by the USSR Supreme Soviet, December 1, 1978, is a notable contribution to carrying out the program of legislative activity deriving from the USSR Constitution of 1977. The issuance of such a law is envisaged directly in the Constitution, which reads: "The grounds and procedure for acquiring or forfeiting Soviet citizenship are defined by the Law on Citizenship of the USSR" (Article 33). The new law replaces the 1938 Law on USSR Citizenship. That law, consisting of only eight articles, no longer covers many questions of citizenship arising in practice at the present time. Various normative documents were adopted in addition thereto, including instructions by ministries and agencies regulating certain important relationships that should have been settled in law. In writing the new USSR Citizenship Law, the goal was to embrace all questions of citizenship requiring legislative regulation. The law reproduces the corresponding provisions of the USSR Constitution and gives consideration to provisions of the previously prevailing legislation on citizenship and to present practices in this regard. There are new provisions as well. The drafting of the bill was conducted on a broad democratic basis; participating were deputies to the USSR Supreme Soviet, the relevant ministries and agencies, the presidiums of supreme soviets of union republics, and representatives of the science of jurisprudence.     

Buried voices: Mexican migrants’ views on the question of illegality

How do immigrant Mexican workers perceive the policies and social discourses that regulate their insertion into American society as noncitizens and illegals? Using ethnographic fieldwork and in-depth interviews, evidence is presented that unauthorized Mexican migrants do not consider themselves lawbreakers but rather moral actors responding to difficult socioeconomic conditions. Informed by a keen understanding of the social forces oppressing them, these migrants articulate a discourse of social justice that works as a powerful counterpoint to the hegemonic ideas of citizenship, belonging, and illegality. A careful analysis of migrant social reflexivity offers a much-needed corrective to the prevailing top-down perspective typically offered among contemporary scholars. By looking at the ways in which migrants make sense of immigration policies and articulate their right to have rights, this examination departs from the widespread tendency among scholars and policy makers of analyzing the migrant’s social and civic status as a matter of assimilation and immigration control.     

The Politics of Punishment and Protection: A Comparative Historical Analysis of American Immigration Control, 1990–2017

This article examines the construction of immigration control in two US states with contrasting approaches to immigration: the rise of crimmigration and governing through crime in Arizona, and the development of immigrant protection and governing through support in Illinois. Analysis of state-level immigration control practices reveals that three interrelated processes play a critical role in formulating these divergent approaches to managing immigrants: the state's cultural orientation, structural relations, and institutional dynamics. These factors interact with each other in complex, multidirectional ways that condition and shape the respective states’ political choices and administrative decisions. I highlight the significance of coalitions of local organizations who work in collaboration with state actors and mobilize state institutions in order to shape state legal regimes of immigration control. In illuminating the variegated trajectories of the construction of immigration control fields, and their use (or nonuse) of penal power as a response, this article provides a more nuanced understanding of the hybrid, dynamic, and contingent nature of immigration control in contemporary America.     

EU citizenship and (fundamental) rights: Empirical,normative, and conceptual problems

There is a close connection between EU citizenship and rights, both in the law and literature. This article claims that EU lawyers' understanding of EU citizenship and rights suffers from empirical, normative, and conceptual shortcomings. I will point out that there has been insufficient awareness for the boundedness of EU citizenship, the political structure of the EU and the constraints this (realistically) imposes on the ‘meaningfulness’ of EU citizenship. EU citizenship must not be understood as requiring an elaborate set of equal rights for all Union citizens throuzghout the EU, but valued for its ability to allow its status holders to enjoy (almost) full membership in the Member States of which they do not possess nationality.     

Legal academics,our creativity and why we do it: insights from Foucault

We, as researchers and lecturers, produce new knowledge that attracts copyright, but standard understandings of intellectual property (IP) – the right as an incentive to create – do not appear to fit our circumstances. Expressed differently, the individual is at the centre of the justifications for IP law though there is little engagement, in the literature, with how the law operates on individual creators. This article addresses the problem by adopting a Foucaultian approach to explore the interaction of the (constrained) decisions of individuals and the societal policy of innovation. Foucault’s work is ideal for this endeavour as much of it focuses on the practices of the individual. For us as legal academics, and most likely for the many other innovators in society, the practices around creativity are the result of, to use Foucault’s term, the governmental rationalities that we have all been inculcated with. More specifically, the understanding of the role of “proper conduct” and the norms of behaviour provides greater insight into the previous simplistic understanding that some individuals are intrinsically motivated to create. The argument concludes with the assessment that copyright may not be important to the creativity of academics; instead, the IP right is of greater relevance to the publishers of our work – given the alternative role for copyright to facilitate the exchange of new creations.     

European Citizenship and EU Immigration: A Demoi‐cratic Bridge between the Third Country Nationals' Right to Belong and the Member States' Power to Exclude

European citizenship entails, for EU nationals, a right to belong across borders. This article questions the implications of this latter right for the status of third country nationals in the EU. It contributes to address a gap between the literature on European citizenship and the literature on the admission and civic integration of third country nationals. The article begins by tracing a disconnect in the rules and narratives on admission and naturalisation of third country nationals in the EU. This is a disconnect between logics of individual rights protection, which European citizenship infiltrates, and logics of state sovereignty and governmental discretion, which otherwise dominate relevant rules and narratives. The article relies on the political science literature on mutual recognition and demoicracy to reinterpret European citizenship's norm of belonging across borders so as to reconcile the disconnect. Ultimately, the theoretical bridge that the article draws between citizenship narratives and immigration narratives offers a novel perspective on the tension between liberal values and integration discourses in Europe. It also sets out a possible frame to begin rethinking rules of engagement and cooperation in the context of the EU common immigration policy.     

Falling into Line? The Hostile Environment and the Legend of the ‘Judges’ Revolt’

In 2012 the Government made a number of controversial changes to the Immigration Rules, which it claimed would ‘comprehensively reform the approach taken towards ECHR Article 8 in immigration cases’. This paper examines the judicial response, arguing that the courts ‘fell into line’, adapting human rights law to the government's aims through unprincipled and opportunistic techniques, whilst inflicting hardship and injustice on working-class British citizens in particular. Four key moves are identified. First, the courts created an ‘incapable’ test which immunised the rules from in principle challenges. Second, Lord Bingham's Article 8 test, in which the reasonableness of any family member relocation was a central consideration, was replaced with a far less family-friendly test. Third, the courts adopted an ultra-lax rationality test at common law, even when the ‘fundamental rights’ of British citizens were engaged. Finally, the courts identified immigration policy as the ‘constitutional responsibility’ of the executive.     

Governing Health and Social Security in the Twenty-First Century: Active Citizenship Through the Right to Participate

This article discusses the role of individual rights in the production of active citizenship. In recent years, the notion of ‘active citizenship’ has become an object of research in both political and social science. Studies that draw on the Foucaultian governmentality tradition have been particularly interested in various societal discourses and practices through which active citizenship is being produced. However, the role of law and rights has been neglected or even rejected in these studies. The aim of this article is thus to show that certain procedural rights, the right to participate in particular, constitute an important legal technology in the production of active citizenship. The analysis is based on the recent developments in Finnish social and health care law. It will also be argued that despite the apparently convergent subject-matter, Jürgen Habermas’s normative theory of the ‘procedural paradigm of law’ does not offer a meaningful framework in which to address the relationship between active citizenship and procedural rights since it is based on an overly narrow conception of subjectivity.     

Questionable transactions as grounds for legalization: Immigration, illegality, and law

By differentiating between legal and illegal movements, transactions, andpersons, legal prohibitions and law enforcement practices create boundaries between legitimate and illegitimate social spheres. Individuals who are located in an illegitimate domain survive at least in part through unauthorized and quasi-illegal practices. The boundaries between legitimate and illegitimate social domains are, however, permeable, making it possible for individuals who have at one time been deemed illegal to at another time claim legitimacy. This paper examines one context in which such claims are made: deportation hearings in a U.S. immigration court. During deportation hearings, undocumented immigrants' prior involvement in questionable transactions can be deemed an indication of poor moral character or of non-credibility. At the same time, such involvement can be overlooked or reinterpreted in ways that permit an undocumented immigrant to pass from illegality to legality. Close attention to such ``readings' or interpretations reveals that there is a sense in which the proceedings that award and deny legal status are as questionable as other immigration-related transactions.     

Using the Citizen to Bring the Refugee In: Gerardo Ruiz Zambrano v Office national de l'emploi (ONEM)

The decision of the CJEU in Zambrano was seen as another example of an over‐active judiciary in Luxembourg. This comment suggests, on the contrary, that the case has too little reasoning to open any ‘floodgates’ but that in setting out a new logic for EU citizenship, the Opinion offers an approach which limits the global approach to free movement case law and uses citizenship status to include rather than exclude the refugee.