Within and beyond citizenship – Migrants’ trapped in legal ambiguity?

By Agnieszka Kubal

[P]articular categories and assumptions, generally taken for granted in the law, may limit the possibilities of those whose lives are shaped by the law. Progressive struggle for social change… comes in part through resistance and transformation of seemingly taken-for-granted categories and terms. Bryant G. Garth & Austin Sarat (1998)

The most common way to define ‘illegal’ or irregular migration would be against the benchmark of migration law. A person who breaks the law is ascribed an ‘illegal’ or irregular status. This ‘method’ seems dubious for at least two reasons. First, according to classical jurisprudence, a person cannot be illegal. Acts are illegal. For example, driving in breach of a road law does not produce illegal drivers but rather counts as illegal driving. Second, the category of ‘illegality’ as used analytically with reference to migrants has recently become dangerously broad. Unauthorized entry or overstaying one’s leave to remain are put under the same umbrella as much more legally ambiguous situations.

By adding new variables depending on accustomed discursive practices, political opportunity structures, or a researcher’s definition of the subject, the concept ‘illegal migration’ is in danger of becoming a sponge that soaks up every, even mildly aberrant aspect of the migration and law nexus relevant to the development of ‘unwanted’ migratory movements, paying little or no attention to the legal ambiguities and nuances. It becomes particularly challenged when confronted with the borderline, liminal cases

Read more: http://blog.qeh.ox.ac.uk/?p=366

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