Immigration and its Imperatives

• DOI: http://doi.org/10.1111/j.1468-0386.2009.00485.x
• Published date: 01 November 2009
• Author: Joyce Chia
• Date: 01 November 2009

eulj_485683..699

Immigration and its Imperatives

Joyce Chia*

Abstract: Conf‌lict and compromise have marked domestic immigration and asylum law in

many countries. In examining whether these patterns will be replicated at the level of the

EU, this article proposes an alternative method for analysing immigration law and its

politics, framing them within the complex interaction of the interpretations by key actors

of the imperatives of the State, the EU, and the legal sphere. An account of the functional,

normative and polity legitimating imperatives, their specif‌ic manifestations in different

spheres, and their interaction in the f‌ield of immigration and asylum is sketched. This

politically-grounded analysis explains more clearly the structure of conf‌lict and compro-

mise that characterises this sphere, illuminates the judicial strategies in this f‌ield and

enables us to speculate upon the probable future of EU immigration and asylum law.

I Introduction

The role of the EU in regulating the movement of peoples has enlarged over time, and

now encompasses three separate regimes. First, the EU has, since its foundation,

regulated the movement of European workers (and later European citizens) within its

borders, based on a principle of equality. Second, the project of a common market led

to most European countries abolishing internal borders and constructing a new exter-

nal border, originally through an intergovernmental process but later incorporated into

the EU legal framework. Third, and most importantly for the purposes of this article,

the EU is in the process of creating its own immigration and asylum legal regime, a

process that began with the Maastricht Treaty but which has accelerated considerably

since the adoption of the Amsterdam Treaty.

This latest development has been, in part, fostered by the conf‌licts over immigration

decisions that have become a common motif in domestic legal systems around the

world. In the common law world alone, we have witnessed increasing restrictions on

rights of appeal and judicial review; a plethora of legislative amendments; substantial

cuts in funding; a war of words between the executive and the judiciary; and endless

critical reports from within and without government. As we enter the brave new world

of European immigration and asylum policy, one question looms large: will these

patterns of conf‌lict be replicated at the level of the EU?

This article explores that question using a novel framework that brings together the

political forces and the legal structures that together shape immigration policy and law.

Too often, legal scholars examine legal doctrine in isolation from the political forces

that shape it. Too often, scholars simply lament the EU’s non-compliance with legal

* PhD (Laws), University College London.

European Law Journal, Vol. 15, No. 6, November 2009, pp. 683–699.

© 2009 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

norms, without engaging with political reality. Alternatively, scholars are too ready to

explain everything as a matter of politics, without recognising the role played by law.

This article seeks to remedy these partial perspectives by adopting a broader socio-

legal perspective that integrates the political with the legal; that engages with the

specif‌ic nature of the f‌ield of immigration and the role of its actors; and by explaining

the evolution of immigration law and policy as the outcome of both structure and

agency. In doing so, the aim is to capture more accurately the processes of immigration

law-making and in particular the adjudication of immigration-related decisions. This,

in turn, enables us to understand more clearly the development of EU immigration and

asylum law and to guess what is coming next.

I begin by explaining how a framework of imperatives explains the prominence of

conf‌lict in the politics and the law of immigration at a domestic level. As I then explain,

States and civil society have sought to escape these tensions by engaging in other

political venues, most notably the EU. For the EU, competence over immigration and

asylum has a seductive appeal. However, I argue that the politics of immigration

translated into the EU context does not remove those tensions, but rather magnif‌ies

them. Finally, I analyse three recent decisions of the European Court of Justice (ECJ)

in terms of these imperatives and use this analysis to speculate upon the probable future

of EU immigration and asylum law.

II The Framework of Imperatives

A Modelling Imperatives

My analysis is adapted from, and elaborates upon, Boswell’s framework of impera-

tives.1In her analysis, immigration policies (and their failures) can be fruitfully under-

stood in relation to what Boswell calls the imperatives of the State—namely what States

need to do in order to be considered legitimate by those within the State. Boswell

identif‌ies four such functions. First, they should provide international and internal

security for their subjects (the security function). Second, they should provide the

conditions for the accumulation of wealth (the accumulation function). Third, they

should act to promote fairness, broadly in the sense of redistributive justice but also

incorporating a latent ethic of universalist rights (the fairness function). Finally, they

should comply with certain formal conditions for the preservation of liberty and

democracy (institutional legitimacy). It is the tensions between and within these func-

tions that structure immigration policies. In Boswell’s view, States attempt to manage

these tensions by ‘fudging’ or compromising between these imperatives, or by ‘trump-

ing’ other imperatives by strongly asserting the primacy of another imperative.

This has powerful explanatory potential for the politics of immigration. Thus, for

example, the diff‌icult problem of returning suspected terrorists to a real risk of torture

exposes a tension between the function of States in providing security and the function

of States in providing fairness. The famous case of Chahal,2which prevents States from

returning such people, is an example of the ‘trumping’ of the security function in favour

of the fairness function.

1C. Boswell, ‘Theorizing Migration Policy: Is There a Third Way?’, (2007) 41 International Migration

Review 75, 90–91.

2Chahal v United Kingdom, judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V.

European Law Journal Volume 15

684 © 2009 Blackwell Publishing Ltd.