Confronting (In) Security: Forging Legitimate Approaches to Security and Exclusion in Migration Law
Grant, Angus Gavin
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Perceived connections between security concerns and migration are a central preoccupation of our time. This dissertation explores how the preoccupation has played out in the Canadian context and asserts that a basic and common infirmity of administrative decision-making in this domain is a lack of justification. The dissertation commences by exploring foundational debates within immigration theory about borders, exclusion, the rule of law and the role of justification in decision-making in liberal democracies, particularly in times of perceived emergency. From there, the dissertation moves on to an exploration of immigration inadmissibility determinations in Canada, with particular attention to the emergence of security concerns as a primary ground of inadmissibility. Central to this exploration is a quantitative analysis of inadmissibility determinations rendered by the Immigration and Refugee Board of Canada, pursuant to s34 of the Immigration and Refugee Protection Act [IRPA]. The results of the quantitative analysis challenge the perception that migrants within Canada pose an exceptional security threat to the state, as the provisions related directly to Canadian national security and public safety have essentially never been invoked in s34 cases. Rather, the majority of those found inadmissible to Canada on security grounds tend to be asylum-seekers or Convention refugees from countries of the Global South that have undergone periods of domestic political turmoil. This fact raises important questions about the obligations of the Canadian state with respect to the principle of non-refoulement, obligations that can only be met, it is argued, through appropriately deliberative processes. To help explain the results of the quantitative data and to identify ways of enhancing security-related decision making, the dissertation proceeds to a body of scholarship on international law that places the concerns of individuals from the Global South at the centre of its analysis. This approach referred to as the Third World Approaches to International Law movement (TWAIL) emphasizes the importance of history, context and individual experience when confronting legal domains, such as the security-inadmissibility context, that affect people from the Global South. The dissertation then concludes by pairing the TWAIL analysis with an approach to administrative law that posits that legitimacy and justification in administrative decisions are contingent upon good faith exercises of dialogue between decision-makers and those who are affected by their decisions. In combining this approach to administrative law with TWAIL, the dissertation closes by putting forward a number of proposals for reform that would enhance the quality, justification and legitimacy of decisions in the security-inadmissibility context.