Transnational Governance of Irregular Migration and the Transformation of Citizenship

Over the last two decades, a veritable obsession to prevent irregular migration proliferated. Developed countries, in particular, increased amounts spent on migration controls considerably. Migration controls are increasingly outsourced and shift to territories of less developed countries. Hence, also borders themselves are changed. Borders are not lines anymore, but reconceptualized as flows, meeting irregular migrants where their journey starts: in countries of origin and transit. These reconceptualized borders are a form of transnational governance. Legal instruments and institutions of one state regulate the lives of individuals in another state. International legal scholarship focuses on legal instruments and practices of developed countries, aiming to prevent irregular migration in non-developed countries. In order to hold developed states responsible for actions and cooperation, legal scholarship refines concepts such as state responsibility, positive obligations and effectiveness. This research contributes to a major shift in international legal scholarship. It is based on two arguments. First, it is not merely migration controls that shift territorially, but also legal norms and institutions migrate from developed to less-developed countries. Second, these irregular migration controls do not merely affect irregular migrants, but also have negative impacts on the concept of citizenship in the regulating countries. This research analyzes the migration of legal norms and institutions from the EU, South Africa and the USA (developed countries) to Morocco, Mozambique and Mexico (less developed countries). Methodologically, this research follows transnational legal theory. Transnational legal theory claims that the development of international law occurs primarily through domestic law. Domestic law is shaped by transnational networks of cooperation among states. Focusing on irregular migration as a transnational node also describes a global regime of legal governance. Another methodological feature is the center-periphery approach. As the primary sites of migration control are the domestic legal systems of less-developed countries, the latter become part of the regulating center. This becomes also obvious in the adoption of visa facilitation agreements and the lifting of visa restrictions for citizens of these countries. Focusing on domestic legal systems also renders the limitation of scholarly attempts to rely on legal concepts such as state responsibility or positive obligations, as a way to take developed states into responsibility. This research shifts focus to the normative effects of migration controls on citizenship. Citizenship has no fixed meaning, but is open to constant political and judicial reinterpretation. Transnational legal governance of irregular migration reinforces discriminatory legal practices and inequalities, thus creating differences not merely between, but also within citizenship. Citizenship, as the normative ideal of equal citizens, is thus corroded. Centers and peripheries are created within citizenship. This research represents a major contribution to international legal scholarship. By showing the corrosive effects of migration controls on citizenship, it is also a call for urgent political and legal reforms.

This research project inquired into global processes of transnational governance of unauthorized migration, examining two interrelated aspects: the outsourcing of legal frameworks of immigration control from developed states (core countries) to less developed states (periphery countries) and the insourcing of immigration controls by core countries. The focus was on the effects of immigration controls on citizenship. It was found that various forms of immigration controls in the core countries produce considerable negative effects on the rights of citizens and on the normative underpinnings of citizenship: equality and liberty. The research demonstrated the corrosive effects of immigration controls in the core countries on the rights of family life, franchise, equality among citizens and socio-economic rights of citizens. Second, the analysis of case law and policy reports suggested that the negative effects on these rights primarily occur along racial lines. By including concepts from critical race theory into legal analysis the research opened avenues for future research on the inclusion of critical race perspectives into legal research.