No Right to Exclude: Reparative Migration and the EU's Colonial Obligations

Guest post by Steffi Colao. Steffi is an immigration attorney in California, focusing on detention and border violence. She recently finished a legal fellowship with ECCHR on their Border Justice team, and she was previously a Promise Institute for Human Rights fellow at Project ANAR, an Afghan community immigration justice organization. She has worked on removal defense, human rights complaints, statelessness, and asylum cases in the U.S. and EU. 

Given the European Union’s escalation of violent border policies and the xenophobic responses from states, European governments are clearly eager to implement extreme measures to make migration more difficult and dangerous. The European Court of Human Rights (ECtHR) and the Court of Justice for the European Union (CJEU) have also contributed to this undermining of existing agreements, creating new carveouts to fundamental protections for migrants. For example, ECtHR held that protections against collective expulsions do not apply if people cross the border in large numbers, in a planned way, or if other legal paths to entry—no matter how inaccessible—exist, and CJEU has set exceedingly high evidentiary standards for victims of human rights abuses at the border. Together, these actions have narrowed the legal pathways and protections for people on the move, pushing them and those assisting them, to justify their right to enter through increasingly restrictive and unstable legal requirements.  

When someone’s reasons for migration do not fit within a single formal path to entry such as employment or asylum, or when they have entered irregularly, they risk precarious status and increased exposure to state violence. With existing paths to entry becoming increasingly limited, lawyers need to consider new avenues to admission. In the past decade, the idea of “migration as reparations” has gained popularity as a way to argue for expanded admission for Central Americans to the United States or postcolonial nationals to European colonial powers. Scholars (see also here, here, and here), activists, and people on the move themselves have argued that migration is a reparative obligation stemming from a state’s responsibility for the causes of displacement. 

While many have invoked “migration as reparations” with varied understandings, the calls share a basic premise: an individual can claim a right to enter (and possibly a right to remain in) a country as a way of remedying some harm. I use “migration” here to refer to admission, inclusion, and mobility rights. I also use “migration” to describe the variety of ways people might want to cross borders: ranging from temporary work to permanent relocation. 

Developing from demands for reparations for slavery, those advocating for “migration as reparations” base their claims on the grounds that colonialism was an immense and largely unaccounted for international harm, which continues to shape the global racial order. That is, colonial violence requires reparation, but the ongoing legacies of colonialism require reparation as well. Colonial and imperial subjugation underpin trade agreements, legal frameworks, and therefore the current unjust distribution of resources and opportunities. Consider present-day extractivism, Western dominance in international institutions, destabilizing military interventions, exploitive economic relationships, and climate harm: recent displacement clearly has roots in colonial and imperial harms. EU countries collectively benefit from these past harms and owe reparations broadly, but instead they have enacted a system of border apartheid to maintain this inequality.   

These ongoing exploitative relationships mean Europe has no basis to exclude, much less violently exclude, individuals from formerly colonized countries from entry. Most of the clients I’ve worked with have been displaced by situations connected to colonialism and neoimperialism, who then faced racist abuse at the border. The EU bears collective responsibility for these human rights violations at the EU border. A lack of legal routes to the EU and immense processing backlogs push people into irregular methods of entry. The EU then encourages irregular methods of blocking that entry (such as pushbacks), which further harm people on the move. Compounded with the challenges related to their original displacement, this pushes migrants into increased spaces of vulnerability. So, when individuals experience human rights abuse at the EU border, which is violently maintained to preserve an unjust global racial order that benefits the EU, they have a heightened claim to migration as a reparation for that violation. 

Migration as reparations arguments acknowledge the insufficiency of present ways of addressing harm and offer alternative redress for displacement-related harms. For example, if someone experiences human rights abuses while crossing the border into the EU, there might be ways to use existing international legal customs on remedy to demand admission rights for that client, instead of just money. This is not to say that migration is not harmful, or that migrating is itself the reparation. Rather, engaging the language of reparations is a way to articulate legal claims to some of the rights or authorizations required to migrate: such as granting tolerated status or asylum, expanding eligibility for visa-free travel, or waiving citizenship requirements. There is potential to request remedies which might provide more meaningful relief to someone already migrating by working toward legal admission and full legal inclusion. In that sense, migration as reparations tries to frame what a person on the move might want in terms of what they are owed. 

Within international law, reparation is a longstanding element of redress for legal violations, so such claims are not as radical as they may initially seem. Existing international legal standards on reparations already provide a fairly promising starting point for legal claims for measures that could work toward reparative migration. For example, looking to ARSIWA and the UN Basic Principles for standards on adequate reparations, there is a basis to claim that any award short of restitution (returning the victim to their pre-harm state)—where restitution is possible—is inadequate. In the case of human rights violations of people on the move, lawyers could demand immigration measures as restitution, such as authorized re-entry after an illegal removal. In Mehemi v. France (2003) and in M.S.S. v. Belgium (2011), the ECtHR signalled that ECHR violations might require, to end the violation, admission or residency. Some UN treaty bodies are also willing to recommend asylum measures as remedy, as CEDAW did in Bandboni v. Switzerland. Thinking creatively about how to request migration measures as legal reparation is a way for lawyers to help shift the narrative about migration. By putting the emphasis on state harm, a reparations theory resists the present emphasis on individual claims to entry. Migration as reparations refocuses a state’s obligations to individuals, and to communities more broadly. 

In this way, calling for reparative migration challenges a state’s supposedly inherent right to exclude by demonstrating how existing relationships create obligations to those outside its borders. By contesting the state’s exclusion of an individual or the adequacy of the remedy, rather than trying to establish their client’s individual right to inclusion, lawyers can help delegitimize the EU border. Reparative migration is an argumentative step towards border abolition, and it provides a way to orient legal claims within that goal.  

Any comments about this post? Get in touch with us! Send us an email, or post a comment here. You can also find us on BlueSky.