Settler Societies and the Immigration Imagination

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LAW 342 Immigration

Notes

a distinction between settler societies and others has informed and predicted patterns of migration and migration regulation

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This era has now come to a close

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new predictors or patterns of migration and migration regulation may now be valuable

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A mythology of immigration is the core of the settler society. Settler societies were built from the ground up by people who left European nations

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The idea of Canada, Australia, or the United States being a nation of migration is such a profound and effective silencer of the trajectory of indigenous life that it is deeply challenging to bring indigenous peoples into a story of the immigrant nation

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Settler society membership is expressed this way, as being often partial and never “ethnic.”

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The effects of the first wave of British colonists on the Aboriginal population of the Australian continent are simply not comparable to the effect of subsequent waves of Europeans on the society established by those first settlers. To draw the comparison is beyond insult. We are not all immigrants

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Under this analysis, of course, a settler society cannot, by definition, be a nation. And much has been made of the search for national identity in settler societies

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The story of immigration as a nation-building project is intertwined with the idea of providing a safe haven for people in flight

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For most of the past century, refugee admissions have been viewed by these states as an immigra- tion question, despite a carefully constructed international legal framework emphasizing that refugees are not immigrants

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For settler societies the belief that individual immi- grant experiences accrete to national identity is foundational. National identity is what some “we” group shares when it cannot share race or religion or ethnicity or history

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legal architecture of settler societies provided three key nation-building tools; immigration regulation, citizenship as membership, and constitutional frameworks

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These restrictions in favor of Europeans were a final piece in the progressive global closure of borders

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rationalized approach to immigrant admission, inventing “points systems” and “lotteries” to sort applicants on the basis of criteria that could be distanced from the racist past

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what is valued is self- sufficiency, independence, and a rationally verifiable ability to assimilate. In other words, the hard-working immigrant of the earlier century is given rationalist-scientific form

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The dividing line between these two models of citizenship law is now very close to collapse, and is a key symptom of the end of settler societies

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in the former settler states identity has now coalesced to the point that states are willing to relinquish the crude membership axiom of birth on the soil

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In the United States, birthright citizenship has not disappeared because it is constitutionally entrenched

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The only small and partial exception to this legal silence is the contemporary protection regime and its principle of non-refoulement. That is, the idea that some narrowly defined groups of people cannot be returned to places where they face a risk of certain types of serious harm

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Refugees, therefore, are migrants. They move without much choice about doing so

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They are not, first and foremost, seeking a better life or a new future

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Refugee law stops short of a direct challenge to the right of states to admit or exclude at will

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General human rights law declares a right to seek asylum, but not to obtain it.

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consider how these states emerged from colonial status without entering a politics of decolonization

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For the truest of settler societies, decolonization is impossible. The law has recognized this, and has confessed its impuissance. In the groundbreaking Mabo decision, Australia’s Justice Brennan looked down into the legal precipice opened by indigenous claims to land and wrote that “this Court is not free to adopt rules that accord with contemporary notions of justice and human rights if their adoption would fracture the skeleton of principle which gives the body of our law its shape and internal consistency.”

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Lamer wrote, “Let us face it, we are all here to stay.” Settler society has meant colonization so permanent that it can no longer be named as such.

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The legal architecture of the settler society depends upon being unable to articulate its origins. 28 Law at its origins is an act of faith. In the settler context, faith takes this specific form: a commitment to a mythology of immigration establishes the law.

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nearly 97 percent of people in the world are living in the country of their birth.

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Highly skilled workers fit the nation-building paradigm, whereas low-skilled workers represent risk: a risk that they will remain and become not only unremovable, but also unsuccessful and unin- tegrated. This trope does not link to the early patterns of settler society foundations, when most migrants would likely have fit into contemporary low-skilled categories. But it does draw directly on key ideas of the settler story: good migrants remain, good migrants contribute, good migrants change themselves to become a part of the new nation.

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In its simplest iteration, the end of settler societies means that at this historical juncture, when more people want to move than ever before, there are no longer any places on earth that see this movement as ordinary, expected, and valued in and of itself

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