W A L N KI S A L A R Materials for O B CITIZENSHIP THEORY AND IMMIGRATION LAW (262Y) 1999 / 2000 VOLUME 1 Professor Ayelet Shachar Faculty of Law University of Toronto The materials reproduced herein are solely for the educational use of students at the University of Toronto and are not for commercial sale or use AUG 2 5 1999 FACULTV OF LAW UFilVERSITy OF TORONTO BORA LASKIN LAW LIBRARY UNIVERSITY OF TORONTO Materials for CITIZENSHIP THEORY AND IMMIGRATION LAW (262Y) 1999 / 2000 VOLUME 1 Professor Ayelet Shachar Faculty of Law University of Toronto The materials reproduced herein are solely for the educational use of students at the University of Toronto and are not for commercial sale or use Digitized by the Internet Archive in 2018 with funding from University of Toronto https://archive.org/details/materialsforciti01shac_1 CITIZENSHIP THEORY & IMMIGRATION LAW (262Y) Professor Ayelet Shachar Fall 1999 and Spring 2000 Four credits: two hours Class: Thursday 2:10 - 4:00 Office: Falconer Hall, Room 310; Phone: 978-1620 E-mail: avelet.shachar@,utoronto.ca The course will consider selected key policy issues of Canadian immigration law in the context of major political, economic and technological developments in the last quarter of the century. These developments pose challenges to traditional understandings of state sovereignty and hence, to traditional understandings of citizenship. Through a critical examination of the jus soli and jus sanguinis principles, we will address the two following issues: first, who are and who are not but should be state citizens; second, what are and should be the effects of citizenship status upon individuals’ entitlements to civic, political, economic and social rights. In examining these issues, we will consider the general principles, conditions and terms under which persons may be admitted to membership in a polity, along with the specific admissible membership categories established by the Immigration Act. Special attention will be given to the objective of reuniting families, the refugee class, and the promotion of Canada’s economic, social and demographic goals as cornerstones of Canadian immigration policy. We will also explore the recent wave of changes in Canadian, American, and Western European countries’ immigration laws in light of the increasing intermingling of people, skills, and cultural identities across borderlines. In this context, we will discuss two apparently contradictory trends: the solidification of supranational regimes such as NAFTA and the EU, on the one hand, and the rise of “localism” and claims for regional or cultural autonomy, on the other. We will analyze the effect of these two trends on contemporary attempts by theorists and legislators alike to rethink the concept of citizenship and re-examine long¬ standing propositions in immigration law. Evaluation: • Class participation (10%): Class meetings will be organized around a discussion of a given week’s reading. Class participation includes attendance, substantive participation in weekly discussions, and two in-class presentations of your comment papers (see below). • Two four-page comment papers (20%): The comment papers will be short critical essays integrating the sources on the reading list for that class. Comment papers are due at 4 p.m. on the day before the readings is scheduled to be discussed. Each student is expected to use the four-page comment paper to illuminate an important question in the reading or to develop their own coherent argument based on the readings. Students must sign up for the oral presentations of their comment papers ahead of time, during the second meeting of the seminar. • A final (approx. 20-25 page) research paper r70%): The final paper’s topic must be pre-approved by the instructor. The final paper is due by 10 a.m., Friday, April 28; Required Texts; A course packet is available for purchase at the University of Toronto Faculty of Law Bookstore. I. CITIZENSHIP THEORY 1) Introduction Objectives and design of the course. Course requirements. The Economist, “Borders” pp. 19-22, December 19, 1998. 2) Borders and Social Closure Mavis Baker v. Canada (Minister of Citizenship and Immigration), File No 25823, Decisin given on July 9, 1999. W. Rogers Brubaker, “Citizenship as Social Closure” in Citizenship and Nationhood in France and Germany (Cambridge, MA: Harvard University Press, 1992), chap. 1. T. Alexander Aleinikoff, “The Tightening Circle of Membership” Vol. 22 Hastings Constitutional Law Quarterly 915 (1995). 3) Open Borders and the Liberal State Bruce Ackerman, SocialJustice in the Liberal State (New Haven, CT: Yale University Press. 1980), pp. 93-95. Micahel Walzer, Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic Books, 1983), chap. 2. Joseph H. Carens, “Aliens and Citizen: The Case for Open Borders” Vol. 49 Review of Politics 251 (1987). * Catherine Dauvergne, “Beyond Justice: The Consequences of Liberalism for Immigration Law” Vol. 10 Canadian Journal of Law and Jurisprudence 323 (1997). 2 II. INTERNATIONAL MIGRATION 4) International Migration Trends; National Immigration Control Regimes Wayne A. Cornelius et al., “The Ambivalent Quest for Immigration Control” in Controlling Immigration eds. Wayne A. Cornelius et. al. (Stanford: Stanford University Press, 1992) pp. 3-41,415-421. Alejandro Fortes and Jozsef Borocz, “Contemporary Immigration: Theoretical Perspectives on its Determinants and Modes of Incorporation” Vol. 23 International Migration Review 606 (1989). Timothy King, “Immigration From Developing Countries: Some Philosophical Issues” Vol. 93 Ethics 525 (1983). 5) Globalization, Territoriality, and Sovereignty Saskia Sassen, “Immigration Tests the New Order” in Losing Control? Sovereignty in an Age of Globalization (New York: Columbia University Press, 1996) chap. 3. Peter Andreas, “The Escalation of U.S. Immigration Control in the Post-NAFTA Era” Vol. 113 Political Science Quarterly 59\ (1998-1999). * Dani Rodrik, Has Globalization Gone Too Far? (Washington, DC: Institute for International Economics, 1997), pp. 1-28, 69-85. 6) Domestic Politics and Immigration Law Louis Michael Seidman, “Fear and Loathing at the Border” in Justice in Immigration, pp. 136-146. Christian Joppke, “Why Liberal States Accept Unwanted Immigration” Vol. 50 World Politics 266 (1998). * Gary Freeman, “The Decline of Sovereignty? Politics and Immigration Restriction in Liberal States” in Challenge to the Nation-State ed. Christian Joppke (Oxford: Oxford University Press, 1998), chap. 3. 7) The Welfare Economics of Immigration Alan 0. Sykes, “The Welfare Economics of Immigration Law: A Theoretical Survey with an Analysis of US Policy” injustice in Immigration ed. Warren F. Schwartz (Cambridge: Cambridge University Press, 1995), pp. 158-183,193-200. Gillian K. Hadfield, “Just Borders: Normative Economics and Immigration Law” in Justice in Immigration, pp. 201-211, 212-218. III. MEMBERSHIP MODELS 8) Birthright Citizenship: Jus Soli and Jus Sanguinis Christopher L. Eisgmber, “Birthright Citizenship and the Constitution” Vol. 72 New York University Law Review 54 (1997). Report of the Standing Committee on Citizenship and Immigration, Canadian Citizenship: A Sense of Belonging (Ottawa: Canada Communication Group 1994), pp. 17-21.' 9) Gender Discrimination and Jus Sanguinis Benner v. Canada (Secretary of State) [1997] S.C.J. No. 26. Committee on Feminism and International Law, International Law Association, Women’s Equality and Nationality in International Law (Taipai: Preliminary Report, May 1998). * Ann Dummett and Andrew Nicol, Subjects, Citizens, Aliens and Others: Nationality and Immigration Law (London: Weidenfeld and Nicolson, 1990) pp. 81-91. 10) Consensual Citizenship Peter H. Shuck and Rogers M. Smith, “Consensual Citizenship” Chronicles 21 (July 1992). Gerald L. Newman, “Back to Dred Scott” Vol. 24 San Diego Law Review 485 (1987). 11) Ethnocultural Citizenship Kay Hailbronner, “Citizenship and Nationhood in Germany” in Immigration and the Politics of Citizenship in Europe and North America ed. W. Rogers Brubaker (Lanham, MD: University Press of America, 1989), chap. 3. Germany Information Center, “Citizenship Reform and Germany’s Foreign Residents” <http ://www. germany-info .org/content/np_3 c.html> * Ayelet Shachar, “Whose Republic: Citizenship and Membership in the Israeli Polity” Vol. 13 Georgetown Immigration Law Journal 233 (1999). 12) Supra-national Citizenship Rainer Baubock, “Citizenship and National Identities in the European Union” Harvard Jean Monnet Working Paper A!91. 4 J.H.H. Weiler, “The Selling of Europe: The Discourse of European Citizenship” Harvard Jean Monnet Working Paper 3/96. * Rey Koslowski, “European Union Migration Regimes: Established and Emergent” in Challenge to the Nation-State, chap. 5. IV. CANADIAN IMMIGRATION POLICY 13) Historical Background: A Critical Evaluation of the Evolution of Canadian Immigration Law Ninette Kelley and Michael Trebilcock, The Making of the Mosaic: A History of Canadian Immigration Policy (Toronto: University of Toronto Press, 1998), chap. 1, pp. 352-381. Lisa Maire Jakubowski, “Bill C-86: Managing Immigration in the ‘90s” in Immigration and the Legalization of Racism (Halifax: Femwood Publishing, 1997), pp. 63-90. * Bruce Ryder, “Racism and the Constitution: The Constitutional Fate of British Columbian Anti-Asian Immigration Legislation, 1884-1909” Vol. 29 Osgoode Hall Law Journal 619 (1991). * Irving Abella and Harold Troper, None is Too Many: Canada and the Jews of Europe, 1933-1948 (3^^ ed., Toronto: Lester Publishing, 1991). 14) The American Historical Experience: Race and Gender-Based Immigration Restrictions Ian F. Haney Lopez, White By Law: The Legal Construction of Race (New York: New York University Press, 1996) pp. 37-46. Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (New Haven, CT: Yale University Press, 1997) pp. 13-39. * Virginia Sapiro, “Women, Citizenship, and Nationality: Immigration and Naturalization Policies in the United States” Vol. 30 Politics and Society 1 (1984). 15) Jurisdictional Boundaries; Source of Federal and Provincial Powers over Immigration to Canada Section 91 (25) The Constitution Act, 1867: Naturalization and Aliens. Section 95 The Constitution Act, 1867: Concurrent Powers over Immigration. The Immigration Act, 1976. 5 The Immigration Regulations. The Annual Immigration Plan. 16) Federal-Provincial Agreements on Immigration Regulation: The Case of Quebec Scott A. Hanna, “Shared Powers: The Effects of Shared Canadian Federal and Quebec Provincial Immigration Powers on Immigrants” Vol. 9 Georgetown Immigration Law Journal 75 (1995). Joseph H. Carens, “Immigration, Political Community, and the Transformation of Identity: Quebec’s Immigration Policy in Critical Perspective” in Is Quebec Nationalism Just? Ed. Joseph H. Carens (Montreal & Kingston: McGill-Queen’s University Press, 1995), pp. 20-38, 73-74. * Joseph Garcea, “The Immigration Clause in the Meech Lake Accord” Vol. 21 Manitoba Law Journal 274 (1992). 17) The American Immigration Experience: Federal Supremacy T. Alexander Aleinikoff, “Citizens, Aliens, Membership and the Constitution” Vol. 7 Constitutional Commentary 9 (1990). Karl Manheim, “State Immigration Laws and Federal Supremacy” Vol. 22 Hastings Constitutional Law Quarterly 939 (1995). V. ADMISSION TO CANADA; IMMIGRANT CATEGORIES 18) Overseas Applicants; General Requirements Manuel Gracia y Griego, “Canada: Flexibility and Control in Immigration and Refugee Policy” in Controlling Immigration, pp. 119-140 Gerald E. Dirks, Controversy and Complexity: Canadian Immigration Policy during the 1980s (Montreal & Kingston: McGill-Queen’s University Press, 1995) pp. 3-44 19) “member of the family class” A. Defining “family” and “spouse” Philip L. Bryden, “Fundamental Justice and Family Class Immigration: The Example of Pangli V. Minister of Employment and Immigration” Vol. 41 University of Toronto Law Journal 484 (1991). McIntosh, “Defining ‘Family’ - A Comment on the Family Reunification Provisions in the Immigration Acf ’ Vol. 3 Journal of Law and Social Policy 104 (1988). 6