Border law : migration and identity in immigrant nations

Abstract

This thesis develops a framework for analysing the interrelationships between migration laws and national identities. The framework is grounded in considering the place of migration law in liberal societies. Migration law plays a role in constituting the nation. It erects the boundary of the nation and contributes to the mythology which sustains the nation. While both nations and their migration laws belong to a liberal paradigm, liberal theory does not create a standard for what is just in migration law. It does not tell us how many people we should admit to our national communities, nor who those people should be. Rather than justice, liberalism generates a humanitarian consensus that permeates philosophical and political discussions of migration. While we cannot assess migration law against a justice standard, we can assess it by analysing the national identity it both reflects and refines. We can determine if our migration laws are true to what we value about our own communities. We can reveal features of our nations that are hidden. Drawing on a rich literature describing the relationships between law and identity, this thesis examines the relationship of one particular kind of law - migration law - with one particular kind of identity - national identity. The empirical work of the thesis focuses on humanitarian· admissions to Australia and Canada. It looks at contrasts between the two programs but also draws conclusions based upon their similarities. The empirical work examines three settings where the law operates. The first setting is the refugee determination process. The second setting is humanitarian decision-making. The third setting is the jurisprudence of the highest courts of the land.