Borders are profoundly challenging places; places of violence, refuge, opportunity, and risk. For individuals, crossing a border can represent entry into a new political and legal space in which possibility is rich; an escape from persecution, the beginning of a new life, membership of a new polity. However, borders are also of fundamental importance for states. In delineating territory they provide a clear sphere of physical responsibility: for those within those borders, what happens there is the political responsibility of the state, which we rely on to ‘keep us safe’. And so, there is an inescapable tension between the opportunity that borders represent for people, and the risk that they represent for states.
This perception of territory as a fortress to be protected by the state has a long pedigree; for years, states have been ‘getting tough’ on so-called illegal immigration, militarising borders, and criminalising ‘irregular’ migrants. This is often seen as part of the sovereign right to control immigration, which has been ascendant even in the face of a global displacement crisis and even though we know that immigration controls simply make migration harder and more dangerous.
It is generally recognized that the sovereign right to control immigration has limits. Perhaps the most obvious legal limitation is the duty in international refugee law to aid persons persecuted in their home state by allowing them access to the territory of the state at whose frontiers they arrive. Domestic law may also constrain immigration control by, for example, prohibiting discrimination. In essence, such national constraints on immigration control aim to ensure that decisions about who can cross the border and enter the state are not arbitrary, arbitrariness being the antithesis of the Rule of Law.
And thus to the Executive Order signed by President Donald J. Trump on 27 January 2017. Predicated on the claim that “In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles”, the Order instigates a wide-scale review of the visa issuance process and suspends immigrant and non-immigrant entry to the USA for nationals of seven states for 90 days while that review is carried out. The outcome of the review may be a recommendation that immigration is permanently suspended from some states.
The Executive Order also makes regressive changes to the USA’s refugee policy. It suspends the refugee admissions programme for 120 days while that too is reviewed to assess what additional processes are necessary to ensure that those entering the USA as refugees do not pose a threat to national security. It also provides that when the programme is reinstated claims for protection from religious-based persecution for those of “a minority religion in the individual’s country of nationality” can be prioritized (a provision directed towards protecting Christian asylum-seekers), and suspends all entry from Syrian refugees on the basis that “the entry of nationals of Syria as refugees is detrimental to the interests of the United States”.
For some, this Executive Order is no more than an expression of the sovereign right to control who crosses the border; a legitimate part of national governance. For others, it is a particularly blatant working-out of years of hardening borders and hardening rhetoric on migration, risk, and control. For law, it is a challenging document. International refugee law does not require states to provide asylum to persons who pose a security risk, but it does expect states to make risk-based distinctions between those who constitute a security risk and those who do not. The challenge of an Executive Order such as this one is that it imposes a blanket exclusion, rather than undertaking individual security analysis, and therein lies the claim of discrimination rather than legitimate border control per se. A similar concern arises with the suspension of immigration from seven listed countries (many of which, incidentally, it is effectively impossible to renounce citizenship of).
Since the end of January, this Executive Order has been the focus of protest, and international leaders have been implored to renounce both the Order and President Trump. Reviews of the legal implications of allowing the application of this Order in US preclearance in Irish and Canadian airports have been instigated. Thousands of lawyers have mobilized, and US Courts continue to grapple with constitutionality of the Order.
However, underpinning all of this are bigger, broader questions about the legacy of years of representing migration as a security risk, of borders as places of exclusion, and of immigration control as a form of justifiable legal violence. This goes well beyond President Trump and the USA. Even as politics and law grapple with the Executive Order, these questions continue to beg answers from international leaders.