Can the SPD’s Martin Schulz own migration in the upcoming German election?

The German election is coming in September and campaign season is finally beginning in earnest. German campaigns are not known for their vitriol, but it can be difficult to attract attention from voters when the two most popular parties (the centre-right CDU/ CSU and the centre-left SPD) are also coalition partners who have backed each other’s position on most major issues for years. The SPD is at a distinctive disadvantage: it’s been in government leadership for years as junior coalition partner to the CDU, so the two’s policies are seen as much the same, and the solid, inevitable-feeling lead of the CDU headed by Chancellor Angela Merkel makes it hard for voters to imagine something other than the status quo. At this point the question may be for the SPD, how can this election seem more like a contest of ideas and not a run-up to a foregone conclusion?

The first step was to get a new face. The Social Democrats were given a big boost when Martin Schulz, the popular two-time President of the European Parliament, announced his return to German politics as Chancellor candidate for the 2017 parliamentary elections. As seen in this Ipsos voter intention poll from the end of February 2017, the SPD appeared to have made significant ground on the CDU in the wake of Schulz’s announcement.

February:

“Which party would you vote for, if next Sunday were the election?”

Ipsos_Public_Affairs_Wahlforschung_26-02-2017

July:

Ipsos_PI_Sonntagsfrage_16-07-2017

As can be seen from the latest poll from mid-July, this headwind appears to have disappeared, with the CDU consolidating an even stronger lead with gains from some of the smaller parties (such as AfD) as well. As the SPD has been seeing its momentum dissipate, Schulz has been trying to find ways to distance and differentiate his party from their coalition partners, and it appears that he has started to thinks that one of the best ways to do this is to take a bold stance on migration.

A European Solution

In  late July Schulz traveled to Italy, where he visited a home for refugees in Catania and met with the Italian PM to discuss the “refugee crises.” At the same time he did a host of interviews on the subject,  which some in the media hailed as a “swipe” at Angela Merkel.

If we don’t want a repeat of what we experienced in 2015 then things have to change.

But what kind of changes is Schulz actually proposing? Taking a look at his announced “solidarity” plan for refugee politics, its clear that Schulz still has his head at the EU level. Here are two main proposals:

Hit countries that refuse people seeking asylum in their pocketbooks.

The European Commission is currently pursuing infringement proceedings against three Visegrad states that have categorically refused to accept redistribution of people seeking asylum from Italy and Greece under a short-term plan, as we have previously explained in detail (see: Sympathy for the Visegrad Group?). Schulz and the SPD would go about convincing naysayers in a more direct way: states who don’t cooperate with EU-wide redistribution (or quotas) would lose access to EU funds. Those who do would receive compensation and benefits. This, Schulz writes, would be carried out through a “solidarity pact.”

In the Solidarity Pact, it must be clear that countries which refuse solidarity on important issues must face financial disadvantages and can no longer count on the full financial solidarity of Germany and the other countries. Solidarity is not a one-way street.

Naturally, as Chancellor of Germany Schulz would no longer have the position at the European Commission to effect such a plan directly. He could (and would) however be able to veto EU financial plans if such conditions aren’t met. Given the legal battles already underway with countries such as Slovakia and Hungary, this would set up a slightly more direct confrontation between Germany and countries rejecting redistribution plans. On the other hand, countries like Italy, Greece and Spain, who stand to benefit the most from such assistance, would likely support a more confrontative approach.

Create legal pathways to immigrate to Europe

Europe is an immigrant continent. In order to maintain our economic power, we are dependent on immigration, especially by well-qualified specialists. A European immigration law should create common rules for this. We urgently need an opportunity for regulated immigration.

Schulz argues that economic pressure and deaths at sea from people seeking asylum can be reduced if there are normal, legal pathways to immigrate to Europe. Speaking in Italy, he reportedly named some examples: “Canada has legal immigration, the United States has it, Latin America, Australia and New Zealand – they all have immigration rules.” This idea also isn’t new, but framed as a European solution raises the question of how, as Chancellor of Germany, Schulz could hope to bring about this massive policy shift. Would Germany first reframe its immigration policy more along the lines of Canada or the US, for example? Or would such a change only be welcomed on the European level?

Similarly, he suggests getting rid of the (EU-wide) Dublin regulation, which, among other things, allows for countries to send people seeking asylum back to the first European country of entry to have their application evaluated. Is Germany going to abandon Dublin first?

Can Schulz zero in on Germany when it comes to migration?

Its clear that what Schulz is proposing aims to tackle the issue of migration and asylum in the long term, on the European playing field. Tying European funding to willingness to participate in distribution scenarios, getting rid of the Dublin regulation, and starting a European wide legal immigration scheme are all hugely ambitious (and wildly controversial) goals, that moreover do not take place in the German domestic sphere. The future Chancellor of Germany plays a huge role in European policy formation, but decisions like these take years of hammering out details and forcing consensus, and do not hinge entirely on the suggestions of one country, no matter how large a role that country has played in the “refugee crises” in the past.

On the other hand, the issues of migration and asylum are inherently international, European issues. Its not incorrect to suggest that Germany can hardly effect changes on this subject alone. But without a domestic angle, these solutions feel aspirational and unrealistic. Angela Merkel is a well-known proponent of a European-wide approach to accepting refugees, and for all her clout very little progress has been made. Arguably, a European-wide solution is further away than ever.

Perhaps if Schulz really wants to stand out, he needs to suggest grounded, practical, German policies that have the potential to be realized in the short term. Reforming the German immigration system to provide more legal pathways to immigrate is a concrete example. In contrast to Merkel’s plodding style, some quick fixes might be in order if Schulz wants to regain momentum and convince voters that not every change requires waiting on Europe.

 

Sources and Further Reading
Voter Intention, IPSOS Sunday Polls
Why is Martin Schulz traveling to Italy?  Deutsche Welle (German), July 2017
German election WARS: Martin Schulz attacks Merkel on migration in explosive interview, Express, July 2017
Ensure a solidarity-based refugee policy in Europe, MartinSchulz.de
Towards a solidarity refugee policy in Europe, SPD.de
Schulz turns to immigration to revive flagging campaign, Reuters, July 2017
What is the Dublin Regulation?, European Commission
Asylum in Europe: The Dublin Regulation, UNHCR (pdf)
Header image via Parti Socialiste on Flickr, http://bit.ly/2wOcK1t (CC BY-NC-ND 2.0)
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100 days in, has Trump kept his promises on migration?

By Christina Lee & Christian Jorgensen

Way back in November 2016, US President Donald Trump released a clear and enumerated list of goals to be achieved during his first 100 days in office. A number of these pertained to migration and asylum, putting down onto paper concrete promises that backed up the immigration-heavy rhetoric of his campaign.

Now officially 100 days in to Trump’s presidency, it’s clear that this list was more than mere campaign promises: quite a few of them have been attempted by the Trump administration, in exactly the wording promised. (You can read the entire list here.) Below, we break down the progress the Trump administration has made toward keeping his promises on migration and refugee policy.


√× Cancel all funding to sanctuary cities

“Sanctuary cities” is a broad term used by both pro and anti-immigrant movements to describe cities who do not prioritize local enforcement of federal immigration laws. While what this actually entails can vary widely, there are a number of cities that identify as “sanctuary cities,” and unrelated and separate to this fact, many big cities receive millions of dollars in grants and funds from the federal government. President Trump campaigned on a promise to withhold federal funds from these “sanctuary cities” if his administration does not feel they fall in line with federal immigration policies.  Given that “sanctuary city” is not an official designation but rather a vague declaration of intent that means different things to different cities, it was bound to be difficult to use this as a basis for withholding federal funding – but the President did try.

In January, Trump signed an Executive Order entitled “Enhancing Public Safety in the Interior of the United States“, which calls on the government to “Ensure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law.”  The executive order contains other provisions, but this clearly matches his promise.

The executive order was followed up in April by a letter sent by the Justice Department to nine so-called sanctuary cities, in which the cities were told that they must demonstrate their compliance with federal immigration law or lose certain federal grants.

Two of letter recipients- San Francisco and Santa Clara- immediately took legal action to challenge the and prevent the law’s enforcement, seeking a declaratory judgement that the order violates the Tenth amendment of the Constitution, which retains all powers not delegated to the federal government by the constitution to the individual states. The argument here is essentially that the federal government has the prerogative to enforce federal immigration laws, but it may not force state governments to use their resources to do so. They also challenge the order for being vague and groundless (as we mentioned, lacking a standard) and for violating due process by removing funds without an opportunity to challenge. Strangely, the Trump administration’s argument seems to be that the order is actually toothless, given that it can only apply to a very small number of millions of dollars worth of federal grants.

Even so, the court agreed with the cities. In the order granting an injunction against enforcement of the order, the ninth district wrote:

The Constitution vests the spending powers in Congress, not the President, so the Order cannot constitutionally place new conditions on federal funds. Further, the Tenth Amendment requires that conditions on federal funds be unambiguous and timely made; that they bear some relation to the funds at issue; and that the total financial incentive not be coercive. Federal funding that bears no meaningful relationship to immigration enforcement cannot be threatened merely because a jurisdiction chooses an immigration enforcement strategy of which the President disapproves.

These issues with the Executive Order are not limited to San Francisco and are likely to cause some major problems for Trump’s sanctuary city order generally. So the verdict on this promise must be: Tried and blocked.


“Begin removing the more than 2 million criminal illegal immigrants from the country and cancel visas to foreign countries that won’t take them back.”

This goal has only been partially achieved, but then, he did only say “begin.” Within Trump’s first 100 days ICE data shared with national news agencies has shown that 54,564 individuals have been deported as part of the “Operation Cross Check” roundup. However, it should be noted that only 30,664 are individuals with a criminal record.  This number obviously does not include the many individuals currently going through deportation proceedings so it could be that the number is nearing 2 million.

So although ICE is apparently targeting non-criminal persons with irregular status for deportation and not only people with criminal records, this promise can be marked as: in progress.


×√“Suspend immigration from terror-prone regions where vetting cannot safely occur. All vetting of people coming into our country will be considered extreme vetting.”

This promise appears to predict the so-called “Muslim Ban,” which was passed but has been blocked by a federal appeals court in Hawaii. As we pointed out back in January, this was always going to be a very difficult promise to keep, given the multiple complications involved in enshrining religious discrimination into immigration law. The Trump administration ended up opting for a ban based on countries (which we predicted was more likely) and faced the problem we thought he might: by only banning a handful of majority-Muslim countries, his ban appeared arbitrary and not serving a compelling national security interest. If he had selected the top countries who had produced terrorism he would have included some non-Muslim majority countries (like Belgium) or important US allies like Saudi Arabia. By avoiding both these pitfalls, he reinforced the conclusion that the ban was necessary for political and discriminatory reasons, rather than for security the of American citizens. Thus it failed to pass muster and was blocked by several judges, with a renewed and reworded version being blocked indefinitely by the federal district court of Hawaii.

So the Muslim ban is another promise that was: tried and blocked.


×√ End Illegal Immigration Act Fully-funds the construction of a wall on our southern border with the full understanding that the country Mexico will be reimbursing the United States for the full cost of such wall; establishes a 2-year mandatory minimum federal prison sentence for illegally re-entering the U.S. after a previous deportation, and a 5-year mandatory minimum for illegally re-entering for those with felony convictions, multiple misdemeanor convictions or two or more prior deportations; also reforms visa rules to enhance penalties for overstaying and to ensure open jobs are offered to American workers first.

This act, as worded, has not been passed, but several of the provisions within have been discussed. As we wrote about in April, Attorney General Jeff Sessions has introduced new procedures and guidance to make re-entry more difficult and to make enforcement of immigration rules stricter across the country. The main provision discussed being the wall along the U.S.’ southern border with Mexico that Trump touted as a top priority during the 2016 campaign. According to top Republicans and Senate Majority Leader Mitch McConnell

The main provision discussed above is, of course, the wall along the U.S.’ southern border with Mexico, which Trump touted as a top priority during the 2016 campaign. In January, Trump signed an executive order (“Border Security and Immigration Enforcement Improvements“) calling for the “immediate construction” of a wall along the border with Mexico.

According to top Republicans and Senate Majority Leader Mitch McConnell (R-Kentucky) the wall will cost up to $15 billion dollars, however, Congress has currently not agreed on any budgetary amount that they are willing to spend, and Mexico is apparently unwilling to fulfill Trump’s promise that they would pay for it. In a televised address to the nation in January, Mexican President Nieto denied that Mexico would fund the proposed wall, saying “I’ve said time and again; Mexico won’t pay for any wall.”

In April President Trump, in order to keep his promise of reforming visa rules, signed an executive order, called the “Buy American, Hire American” law, that works to reform the HB1 visa program. An HB1 is a visa program that allows companies to hire workers from other countries with certain specialties usually focused in the areas of science and technology. Although the executive order has not currently changed the HB1 visa, what it has done is called for various federal agencies to start creating reforms to the HB1 process. President Trump believes this will lead to firms being forced to “Hire American” though of course it is yet to be seen if this will be the case.

So for this promise, Trump’s progress must be judged as: partially in progress, partially not attempted.


X Restoring National Security Act. Rebuilds our military ….. establishes new screening procedures for immigration to ensure those who are admitted to our country support our people and our values.

This was from the outset a vague promise that didn’t have much hope of being passed. After all, it would require America to have a defined set of values outside of the Constitution, the main thrust of which is to allow for different values. We have not yet heard any news of new guidelines to customs and border control to quiz people on values and support of American people, so this must be considered: not attempted.


Conclusions: Despite attempts, Trump is far from his immigration goals, and getting further

A majority of people who voted for Trump (64%) identified immigration as the most important issue in the 2016 election and were likely gratified to see Trump making immigration reform a centerpiece of his campaign. As his success rate here shows, however, Trump may have overpromised on what he could achieve in a number of areas. It’s unclear whether Trump regarded these promises as achievable, but the presence in his cabinet of hardline anti-immigrant activists suggests that advisors may have pushed him to embrace unrealistic goals that were on their wishlist for years, but had little chance of success.

When it comes to immigration, the question for people supporting the President has to be: is it enough to try and fail or are the results what really matter?

Sources and Further Reading
Donald Trump’s Promises for the First 100 Days, NPR, November 2016.
Executive Order: Enhancing Public Safety in the Interior of the United States, White House, Jan. 2017
Sanctuary Jurisdiction Cases, USDC for Northern District of California (PDFs of order available to download.)
Justice Department Warns Sanctuary Cities, NPR, April 2017.
ICE data shows half of immigrant arrested in raids had traffic convictions or no record, Washington Post, April 2017.
Will Trump go forward with a “Muslim Ban” and if so, how? Migration Voter, Jan. 2017.
Hawaii Court Order blocking Muslim Ban, Vox (PDF) Mar. 2017
Is the ‘Trump Era’ of Immigration Enforcement starting to take shape? Migration Voter, April 2017
Executive Order: Border Security and Immigration Enforcement Improvements, White House, Jan. 2017
McConnell: Here’s how much the border wall will probably cost, Business Insider (video), Jan. 2017.
Mexico: We will not pay for the border wall. BBC (video), Jan. 2017.
Buy American, Hire American Executive Order, White House, April 2017.
Here’s an H1-B Visa, and Here Is How Trump Wants to Change It, Fortune, April 2017.
Border Wall Cost
Background on ICE statistics (More)
2016 US Presidential Election Exit Polls via the New York Times.
COVER IMAGE via Gage Skidmore ON FLICKR, http://bit.ly/2pmmXl5 (CC BY-SA 2.0)

Will Fear of Refugees Become the Status Quo in Czech Politics?

By Christian Jorgensen

Cover image: Photo: Nico Trinkhaus – Royal Way, Prague, Czech Republic

Per a poll by the Center for Public Opinion Research (CVVM) released earlier this spring, 61% of Czech citizens are against accepting any additional refugees into the Czech Republic. The same CVVM poll also showed that 73% of Czech citizens find refugees to be a major security threat to the Czech Republic, on par with the threat presented by ISIL.

A look at the actual numbers of people seeking asylum in the Czech Republic makes this popular fear somewhat surprising.  According to the United Nations Refugee Agency (UNHCR) there were only 3,644 registered refugees in the Czech Republic, a mere 0.03% of the Czech population (10.52 million). Additionally, in 2016 only 64 refugees were either relocated or resettled in the Czech Republic and the country was estimated to have 1,475 asylum applications still open in 2016. (For comparison, Germany handled about 745,155 applications for asylum that year, and the small country of Malta handled 1,930). Adding together all the statistical numbers of refugees, the portion equals out to only 0.05% of the Czech population. So, with such small numbers, what is this fear based on?

Many may think that the estimated count of refugees currently in the country do not take into consideration the number of people crossing over the Czech border on their way to seek asylum in more popular destinations, such as Germany. However, the routes most often taken by people seeking asylum originating from Italy and Greece in most cases completely bypass the Czech Republic (see map, below). Unlike other members of the “Visegrad group” such as Hungary, the Czech Republic is not a very popular stopover country on the route across Europe.

Source:National Geographic

Are Czechs perhaps feeling overwhelmed by the pressures of even a relatively minor influx of people from other countries? A look at the statistics would say otherwise. In 2015 only 29,602 people immigrated to the country. Compare that number to the 25,684 Czech residents emigrating (i.e, leaving) in 2015  and a low birthrate of only 9.5 (per 1000, 203rd in the world) it is easy to see that Czech Republic is not having a population surplus problem (if anything, rather the opposite). Are Czech citizens being told otherwise?

The Czech government has been known to exaggerate the number of migrants coming to the Czech Republic via both politicians’ statements and in official government reports. Czech Deputy Prime Minister, Andrej Babiš, said that taking any more refugees could lead to, “[T]he next day 15 or 20 thousand more will come to our doorstep.” He added that “we have thousands of non-registered people that threaten our citizens.” His argument that thousands of people are coming to the doors of the Czech Republic is very off from the official numbers mentioned earlier by the UNHCR and other migration agencies.

In fact, Czech has in the past been a country that produced great numbers seeking refuge. Following the end of the Second World War and the communist takeover of Czechoslovakia, many fled what makes up modern Czech Republic. In 1945, 10,000 citizens fled the region, increasing to 50,000 Czechs following the communist takeover. In 1968, during what is now known as the Prague Spring or the Warsaw pact invasion, between 40,000 and 70,000 Czechs immediately fled the region to seek asylum in the West. As a people that have benefited greatly from the refugee and asylum system, it makes one wonder why they have such a negative view towards refugees.

So, if individuals seeking asylum are not crossing the border in great numbers, not being resettled in great numbers, and the country is not being overwhelmed with immigrants generally, then what really is behind this major fear of refugees in the Czech Republic?  An educated guess is that much of it has been created or reinforced by the rhetoric the Czech government has used since the refugee crisis began.

The ruling presidential party (Social Democratic Party) has been vocal about their fear of refugees both to the Czech people and abroad.  Press Secretary for President Miloš Zeman, Jiří Ovčáček said in 2016 that, “by [the Czech Republic] accepting migrants, we would create fertile ground for barbaric attacks.” In 2015 President Zeman, in his typical bellicose style, compared the refugee crisis to a tsunami that will kill him. Zeman continues to fan the flames to this groundless threat and has promoted the idea that Czech citizens should begin arming themselves to prevent a potential “Super Holocaust” as he believes the refugee crisis in Europe to be an organized invasion by Muslim terrorists, although Zeman has yet to provide any proof of such claims. All this fearful rhetoric by the Czech Presidential Office is interesting since Czech has never been the site of a terror or mass attack by refugees- or anyone else for that matter. (The closest thing was probably a fake “ISIS attack” staged by an anti-immigrant group in Prague in 2016).  The Czech Republic has even been listed as a country with a low risk of potential terrorist attacks by such governmental offices such as the British Home Office.

The threat of terror attacks is not the only fear being pushed by the Czech government in connection to refugees. Czech officials have also been known to promote the idea that accepting refugees will lead to the collapse of Czech society. Czech Interior Minister Milan Chovanec said that by accepting more refugees by “the proposed [EU] quota it could lead to a collapse of society.” President Zeman offered little hope to promoting the belief migrants may benefit society, saying that, “the integration of Muslims is impossible.” All of this has been said without providing any evidence but can easily lead people to believe that people immigrating or seeking asylum in Czech can only harm society.

The members of Czech’s ruling government are at least partly responsible for the latest polling numbers showing fear of refugees and migrants. This is becoming an all too common method by many governments and parties in Europe, to create fear of migration by making groundless statements without providing any evidence.

With a presidential election coming up early next year let’s take a look at the context of fear of refugees among the presidential candidate platforms. Although it is a contentious issue within Czech society, it doesn’t seem to be one among the presidential campaigns. Of the eleven candidates still running campaigns the majority all seem to hold the same policy towards refugees: deter and reject. Only one candidate, Michal Horáček, takes a slightly more welcoming stance- and only slightly.  So if the majority of candidates are promoting a pessimistic view towards refugees and migrants; will the fear of migration be an issue candidates use to drive voters to the poll or will “anti-immigrant” become the status-quo in Czech politics? 

Further Reading and Sources
CVVM Poll (in Czech)
European Commission Asylum Statistics
European Commission Immigration/Emigration Statistics
Birth Rate Index (CIA)
UNHCR Statistics
Press Secretary Statement
1945 Statistics
1968 Statistics (second source)
Jiří Ovčáček Statements
Zeman Tsunami Statement
Super Holocaust Statement
British Home Office Security Ranking
Milan Chovanec Statement
Zeman Integration Statements
Michael Horacek Migration Platform
National Geographic Maps
Fake ISIS Attack in Prague

Cover image: Photo: Nico Trinkhaus – Royal Way, Prague, Czech Republic

Le Pen’s Promises on Citizenship and Asylum: A Closer Look

By Christian Jorgensen

Leading French presidential candidate for the far-right Front National party Marine Le Pen is running on a platform that she says will “free France”, and she has made 144-commitments that she promises will do just that. There are three that revolve around the topics of citizenship and asylum that deserve a closer look into what their impact on migrants and policy could be.

Promise 28: To return to the original spirit of the right of asylum which, furthermore, will only be granted after the filing of an application in French Embassies or Consulates in the countries of origin, or bordering countries.

In promise 28 of her 144 Presidential Commitments, Le Pen advocates a “return to the original spirit of asylum.” Expanding on that, she hopes to change the refugee application process, to only accept asylum applications from outside of France: in French embassies or consulates in the countries of origin, or in bordering countries. Looking at the 1951 Refugee convention, of which France is founding member, and French domestic law, Le Pen’s “return” may not be as easy to implement as she and the Front National may think.

Foremost, the Refugee Convention builds on Article 14 of the 1948 Universal Declaration of Human Rights (UDHR)which recognises the right of individuals to seek asylum from persecution. Building on this right, The Refugee Convention of 1951 defines a refugee thusly:

”As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

The key point here that Le Pen should be aware of is that a refugee is an individual who has been forced to flee his or her country of origin and most likely cannot return home or is afraid to do so. Le Pen’s proposal to require asylum to be requested in countries of origin is completely contrary to what the law states about asylum.  If an individual is forced to flee out of fear for their life, it is very unlikely that they will be able to request asylum at a French embassy in their own country.

Going deeper one can look at France’s own constitutional law on the issue. French law dating back to the preamble to the constitution of 27 October 1947, “[a]ny man persecuted in virtue of his actions in favor of liberty may claim the right of asylum upon the territories of the Republic.” This was again strengthened in 1993 in a report by the Constitutional Council, “asylum is a [French] constitutional right for persons who qualify for it” (emphasis mine.) Furthermore, the Constitutional Council found that asylum applicants have the right to reside in France until their asylum request has been processed and decided upon, and those who qualify for asylum must be allowed to stay in France. Le Pen’s promise requiring asylum seekers to file their requests overseas contradicts not only international law but French constitutional law as well.

Additionally, there is some confusion in the language she chooses to use. In response to her claim “to return to the original spirit of asylum,” what does she exactly mean? In 1951, as the United Nations led by France and the other major world powers sat at the table, they drafted the 1951 Refugee Convention to create a set of rules that address the refugee issue that had been created by WWII. Thus, France along with the other UN leaders created the original spirit of asylum. This spirit was one that emphasized the principle of non-refoulement, which asserts that a refugee should not be returned to a country where they face serious threats to their life or freedom. One could argue that Le Pen’s plan to return to the original spirit is completely contrary to what the original spirit of what modern asylum law is, perhaps she would like to return to the days of cathedral sanctuary?

Through a legal lens it is highly unlikely that promise 28 will be able to be kept entirely, as there are many aspects of international and French law that Le Pen seems to disregard.

Promise 27 To abolish jus soli (right of the soil): it will only be possible to acquire French nationality by filiation or naturalisation, the conditions for which will be tightened. To abolish dual nationality for non-Europeans.

Le Pen has made her 27th commitment to completely change the system in which French nationality is acquired and change the rules for all individuals who currently hold dual-citizenship.  With the jus soli legislation of the current French Civil Code, French citizenship can be obtained by individuals born in France in four ways:

  1. At age 18 if individual has held French residency for five years since the age 11;
  2. Between the ages of 16 and 18 upon request by the child and if the individual has been a resident of France for at least 5 years since age 11
  3. Between the ages of 13 and 16 upon the request of the child’s parents and if the individual has been a resident of France for at least 5 years since age 8.
  4. Immediately at birth, if the child is stateless

Now, per Le Pen and the Front National leaders, they want to abolish all of it. First it should be noted that to keep this promise Le Pen would need to put forth an amendment to the current French Civil Code and get this approved by the French National Assembly. With the current makeup of the French National Assembly, which is controlled by the Socialists, it is very unlikely that such a measure would pass without much contention.

The real question is the legality of the denial of jus soli citizenship for those born in France who would otherwise be born stateless. Is this legal, considering that jus soli is a safeguard against statelessness? There is an international treaty, the 1961 Convention on the Reduction of Statelessness that may lead to Le Pen violating numerous areas of international law. It should first be noted that France has signed the 1961 convention but has yet to ratify it. However, the Vienna Convention on the Law of Treaties, which is considered by many states and international bodies to be customary international law (see ICJ, Gabčíkovo-Nagymaros Case), states that being a signatory alone, “creates an obligation to refrain, in good faith, from acts that would defeat the object and the purpose of the treaty.” Therefore, as a signatory to the 1961 Convention on the Reduction of Statelessness, France is bound to not purposefully do anything that violates the 1961 convention, which eliminating jus soli citizenship at birth for stateless individuals arguably would. It could violate Article 1(1) and Article 1(4) of the 1961 convention. Article 1(1), the first and most important article, binds states to grant citizenship to persons, otherwise stateless, born in their territory.  This may be in any matter they seem fit within their national law, but a path to citizenship must be available to those stateless individuals born on their territory. Article 1(4) requires states to give nationality to a person, otherwise stateless, who is legally precluded from assuming his/her birth of nationality.  This could extend for example to individuals born to Jordanian national single mothers to receive French citizenship, since Jordanian citizenship cannot be maternally inherited.

The last part of Le Pen’s 27th promise is that dual-citizenship would be removed from all Non-European French-naturalized-citizens.  She explains further, this would allow naturalized French citizens with dual-citizenship in other EU countries and even non-EU European countries such as Russia to keep their dual-citizenship but would require naturalized French citizens such as French-Israelis or French-Americans to choose one citizenship over the other. The inclusion of Russia begs the question of who is implied by “European” in Le Pen’s definition. Russia is not in the EU, but is in the Council of Europe and continental Europe- as are Turkey and Azerbaijan. Would this mean that all Turkish and Azerbaijani dual-citizens would be able to keep their dual status as well?

Without clarification (if she, for instance, just means EU members plus Russia), Le Pen’s ad-hoc definition of European could arguably fall under UDHR Article 15 , which states that no one may be arbitrarily deprived of his or her nationality. (Although not a binding legal treaty, many provisions of UDHR have achieved status of international customary law, and this is one of them). The UN has addressed the issue of deprivation leading to statelessness and have found for it be in violation of international human rights law (UN HRC report).

Additionally, this is not something Le Pen can unilaterally enact. To keep this promise Le Pen would have to call on the National Assembly to add additional reasons for citizen deprivation, which is dictated by Article 25 of the French Civil Code and currently only allow for deprivation of citizenship because of criminal and treasonous acts against the French Republic and not because of the state or region where an individual has additional citizenship.

Promise 31 To combat jihadi networks: stripping of French nationality, expulsion and banning re-entry into the country for any person with dual nationality linked to a jihadi organisation. To apply Article 411-4 of the Penal Code on passing intelligence to the enemy and to place any individual with French nationality, with links to a foreign organisation promoting hostile activities or aggression against France and the French people, in preventive custody. To draw up a list of such organisations.

Promise 31 is one of the few similarities between Le Pen and current French President Francois Hollande, who earlier in 2016 tried to add a similar provision to French Nationality Law.  However, Le Pen would like to deprive French nationality to all individuals with connections to “Jihadi” organizations.  French Civil Code under Article 25 would allow for deprivation of citizenship for French citizens and dual nationals who carried out terrorist attacks, but it has only been acted on a few times and the courts are very reluctant to deprive individuals of their French citizenship. Based on the court’s history of deprivation Le Pen might have a much harder time with carrying out deprivation even further.  Currently, Article 25 states that an individual who has been sentenced for committing a crime against the state may constitute legal reason for deprivation of citizenship, however, this doesn’t extend to someone who is suspected of terrorist activity or suspected to have connections to terrorist organizations.  Le Pen would have to further define what she defines as a connection to such an organization.  Is it having cousins belonging to terrorist cell? Is it indirectly fundraising for an organization determined to be a terrorist organization, whether one consciously knows it? Additionally, does this only apply to Islamist terrorist organisations, as using the term jihad implies, and not apply to terrorist organizations on the far left, or right, or terrorist organizations with a Western Religious Ideology such as Catholic or Protestant Christianity?

There is another problem with Le Pen’s vague wording, in that depriving someone’s citizenship for ill-defined connection with an organization could violate the freedom of association and legal privacy of life promised by the French Constitution. For Le Pen to keep true to her promise in this regard, she and the Front National must make this promise a great deal more specific for it to have a chance of becoming French legal practice.

Conclusion
Overall vagueness, disregard for existing law, and feasibility all seem to be reoccurring issues with Le Pen’s promises on migration and citizenship. It is one thing to make policy promises and another to navigate the pathway to successful policy implementation and this is something Le Pen and Front National should keep in mind.

READ MORE
1961 Convention on the Reduction of Statelessness
Universal Declaration of Human Rights
French Civil Code
Vienna Convention on the Law of Treaties
Ways to French Citizenship
More on VCLT and why it is customary international law
Marine Le Pen’s 144 Commitments (in English)
The Refugee Convention of 1951
Preamble to the Constitution of 27 October 1947
More on Statelessness
ICJ Gabčíkovo-Nagymaros
More on Le Pen and only dual-european nationals (video)
Image via Pietro Piupparco a flickr (cc By-SA 2.0) http://bit.ly/2nTYNKq

Serbian presidential candidate calls for landmines to stop migrants

Serbia goes to the polls on April 2nd to elect a new president and so far the campaign has not focused heavily on migration or asylum. Instead, with Aleksander Vucic, the current PM and head of the Serbian Progressive Party (SNS) leading the polls (IPSOS has him at over 50%), and his greatest competitor being a “mock” candidate referred to as “Beli“, most campaign rhetoric from other candidates has focused on criticism of the current government as well as longstanding issues like Kosovo, NATO and corruption.

Nevertheless, Serbia has been heavily impacted by the refugee crises in the last year, primarily as a transit zone for asylum seekers moving north, and at least one candidate has decided to make it part of his campaign.

“I’d like how Viktor Orban got the barbed wire, and if that’s not enough we’ll put in minefields.”

During an interview with RTS, Seselj explained that it would be necessary to use military means to prevent migrants from entering the country, including barbed wire, minefields, or border guards. “It must be ensured that neither side is entering illegally, because of Germany’s plan for Serbia to be a buffer zone,” he said. He also criticized Vucic for meeting with German chancellor Angela Merkel, and suggested that Germany had plans to expel millions of migrants to Serbia.

Seselj is running for president for the sixth time under the Serbian Radical Party banner. A familiar figure in Serbia, he’s probably best known for his role as  deputy PM under Slobodan Milosevic in the late 90’s where he led a campaign of ethnic cleansing and called for the establishment of a Greater Serbia, and his subsequent related trial and acquittal for war crimes and crimes against humanity at the International Criminal Tribunal for the Former Yugoslavia (ICTY).

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Seselj flyers: “Stop Hague Tyranny” (2007)

Seselj isn’t the only candidate to use bold language discussing migration issues. Vuk Jeremic, a former member of the Democratic Party who served as foreign minister from 2007 -12 and as ex-UN General Assembly president, spoke out against a proposed highway connecting Nis and Tirana, saying it could become the backbone of a “Greater Albania”. Albanians come to Serbia “every weekend to buy land, apartments and houses. Don’t we have enough of them [Albanians]?,” he said at a rally in Nis. The comments created a significant backlash on social media.

Nevertheless, rhetoric like this doesn’t make much of a splash in an election campaign characterized by some truly outlandish mudslinging. For instance, a Progressive Party member accused Jeremic’s wife Natasa of being Serbia’s chief drug lord by (a claim she vigorously denies). Meanwhile, the Liberal Democratic Party (LDP) called for a re-examination of the role of Seselj in the 2003 assassination of PM Zoran Đinđić, after Seselj claimed that he would pardon Đinđić’s convicted assassin if he were elected president. In this atmosphere, derogatory comments about migrants or refugees are unlikely to be the deciding factor in the campaign, but they are worth noting.

Read More:

Desperate refugees and migrants in Serbia face freezing temperatures” (Jan. 2017) UNHCR
Trial Judgement in the case of Vojislav Šešelj delivered” (2016) ICTY Press Release.
Seselj: Minefield or fence to reduce the flow of migrants” (Mar. 25 2017) RTS (in Serbian)
Header image via International Red Cross on Flickr, http://bit.ly/2mP6LsY (CC BY-NC-ND 2.0)
Text image via lab604 on Flickr, http://bit.ly/2nzxjNm (CC BY-NC 2.0)

Dutch Election Results: Mixed Signals on Migration

The day after the parliamentary elections in the Netherlands the global press is still firmly focused on PVV candidate Geert Wilders. His far right party had a solid evening but failed to beat incumbent VVD or receive enough seats to make a coalition without him impossible, meaning that he will likely remain in the opposition despite being the second largest party in the Netherlands. (For more on why this is, see our Dutch Election explainer or our previous analysis of Wilders’ coalition conundrum). Many are hailing this as a defeat for populism and a victory for Europe/ centrists /the progressive left. But of course, we are interested in digging into what the implications of the results are for immigration and asylum policy in the Netherlands.

Pro-Refugee parties won big…

The parties with the most liberal views on refugees made significant gains. GroenLinks, whose campaign focused on diversity and opposition to racism and xenophobia, while endorsing rights for refugees and rejected asylum seekers, more than tripled the number of seats they gained in comparison to 2012, going from 4 t0 14 seats, while D66, perhaps the second most pro-refugee party (at least on paper) gained 10 seats to tie for third biggest party. Meanwhile, brand new party DENK gained 3 seats, with a message of tolerance for people with migration background to the Netherlands, backing such positions as diversity quotas for government positions and the introduction of policies that de-stigmatize foreigners and counter racism.

In one of the biggest shockers of the evening, workers party PvdA lost a staggering 29 seats. That they did so poorly while other liberal parties made gains is interesting, but from our perspective its worth noting that this was the only party who was Left on social issues but took a somewhat harsher tone on refugees and especially economic migrants, and they were decimated.

…But Anti-Refugee parties won big too

Geert Wilders’ PPV, who took by far the harshest stance of any of the parties against all forms of refugees, immigrants and foreigners, gained 5 seats, becoming the second largest party in the Tweede Kamer. Less hyped but equally important, the CDA surged to tie for third place, picking up 7 seats. The CDA‘s position is similar to the VVD (who remains biggest party despite losing 10 seats) that refugees should stay in their own region, and those who do come to the Netherlands should only receive support to the extent that they can be well set up to return. Additionally, they support tightening up rules on family reunification. SGP and CU both did solidly with a similarly strict stance on refugees (while making provisions for especially vulnerable groups, such as children.)

Meanwhile, the far-right Forum voor Demokratie (FVD) made it into the parliament for the first time, gaining two seats running on a platform that centered on direct democracy, restricting immigration and leaving the EU. Party leader Thierry Baudet presents himself as a younger and more intellectual Wilders-type, with connections to the US alt-right scene.

The resulting government seems unlikely to make big shifts in asylum policy

It always takes some time to form a government in the Netherlands, and given that all major parties have vowed to exclude PPV, the second most popular party, any likely coalition will probably be a combination of VVD, CDA, D66 and one or more others. Rutte will likely remain PM, and parties that are basically opposed to the Netherlands accepting more refugees in one way or another will hold at least 72 out of 150 seats in parliament and will dominate the ruling coalition. Its thus safe to say we can expect more of the same: subsistence level support for asylum seekers, lots of rejections, and suport for development cooperation in regional sending zones.

Depending on whether Groenlinks or SP also join the ruling coalition they may seek to liberalize immigration policy, but will face an uphill battle.

Questions going forward:

Is high voter turnout far-right kryptonite? As the evening unfolded the media was surprised by the extremely high voter turnout – 82% overall. High turnout doesn’t necessarily benefit the left or the right, but as state broadcaster NOS reported, younger people favored more liberal parties, and high voter turnout usually means increased youth participation.

Does flirting with the far-right work equally well for the center right and the left? As many have pointed out, the VVD and CDA both took a page (or at least a line) out of Wilders’ book in the way they talked about refugees and immigrants, most notably when Rutte said immigrants should act normal or “piss off” in a tv interview. Talking tough on refugees and immigrants, but not using what Rutte called “the wrong kind of populism” managed to keep these parties in the lead. Not so for PvdA, who campaigned on protecting Dutch identity and patriotic values while backing restrictive measures for refugees and asylum like VVD and CDA, but lost terribly for it. Left/liberal parties who didn’t emulate this type of rhetoric, however, did well, especially among young people.

What does this mean for the French election? That may be the most important question, but the answer is far from apparent.

 

Where do the Dutch parties stand on refugees?

One of the unusual features of the Dutch electoral system is the large number of parties and multiple possibilities for coalitions. When it comes to refugee politics, a very hot issue in the upcoming race, the parties are all over the map and range from very strict on refugees- saying the Netherlands should not take a single one- to very welcoming, saying refugees should be welcomed without a limit and entitled to the same rights as Dutch citizens. To make it a little easier to navigate we’ve divided the top parties by their stances, using their own positions from their own platforms. Remember: multiple of these parties will have to find enough common ground to govern together, so we are likely to see big compromises.

PVV- Zero refugees, close the borders, exit the European Union and ban Islam

The Partij voor de Vrijheid, PVV, is the far right party of Geert Wilders and takes the strongest stance against refugees and people seeking asylum, particularly if they are Muslim. Their platform is that the Netherlands should accept zero refugees, close all asylum centers, withdraw residence permits that have already been granted, and use the money that is currently given to people in the asylum process to support the “ordinary Dutchman.” In addition, immigration from Muslim countries will be banned, and people who hold dual citizenship and have a criminal record will be de-nationalized. Finally, a vote on leaving the European Union will be posed by referendum (the so-called “Nexit”), and the Koran would be banned (this would likely also require a referendum to change the constitution to allow for discrimination against religious groups.)

VVD- Netherlands is obligated to accept refugees, not economic migrants

The Die Volkspartij voor Vrijheid en Democratie (VVD) is the party of current PM Mark Rutte. Although they arrive at the conclusion in a different way, their position on refugees is nearly as hardline as PVV’s. While refugees are entitled to a safe haven, that should be granted in their own region and not in Europe. In the current situation, they say it is no longer possible to distinguish between refugees and economic migrants, so efforts should be given to stabilizing the region refugees originate from and preventing them from endangering themselves and making problems in the Netherlands. The majority who come to the Netherlands cannot possibly be refugees, VVD argues, as they traveled all the way there, passing through safe regions, so they should not be given false hope and resettled in municipalities. Those who do make it should be processed as quickly as possible and deported as quickly as possible. Anyone who remains must integrate as quickly as possible and pay their own way through language courses, and is entitled to the minimum of public assistance- container houses, healthcare, and food. People who fail to integrate should lose residence rights.

CDA- Refugees must be set up to be able to return

The Christen-Democratisch Appèl or CDA is the once dominant Christian union party that has a center-right viewpoint. On the issue of refugees and asylum, they partially echo the VVD in granting that refugees are entitled to protection, but this protection can be better granted in their own region. This way, they are also better enabled to return when a conflict has ceased. Thus, they support the creation of regional “safe havens” and financial support for governments hosting refugees. Refugees already in Europe should be distributed according to a quota system, with countries who don’t participate losing EU funds. Refugees already within the Netherlands should receive training so that they can be well-prepared to return to their countries as soon as possible- and those countries who will not accept their citizens back should be ineligible for trade or development cooperation. Anyone who will eventually receive Dutch citizenship must give up their previous citizenship, take an integration test and learn Dutch.

SGP – Allow refugees, but combat abuse of the asylum system

The Staatkundig Gereformeerde Parti or SGP is the Dutch Calvinist party, a socially conservative center- right party that received some international attention when it was sued for refusing to allow women into its ranks.  The SGP believes that the Netherlands should continue to accept refugees, especially those who have been persecuted because of their faith, but that as a small and densely populated country, the number of disadvantaged/ economic migrants must be limited and there should be stricter requirements for family reunification. Only those who agree, in writing, that they want to contribute to Dutch society should receive funds for integration courses, and public funding for refugees should be limited to the basics.

CU- Certain groups of asylum seekers are at a higher risk

The ChristenUnie or CU is a socially conservative Christian party, which nevertheless is somewhat liberal on issues such as the environment and immigration. Their position on refugees is that the Netherlands should continue to accept refugees while supporting assistance for them in their origin region and supporting a more equal distribution of refugees throughout Europe. Refugees should be distributed throughout the Netherlands, but in good communication with local municipalities and lots of opportunities for integration and volunteer activities in the home. The asylum process should be sped up so people know what their prospects for staying are as soon as possible and can start to integrate. They are especially concerned about the safety of LGBT and Christian refugees in asylum homes and favor more support for these groups. They also want more attention and special assistance for victims of trafficking, FGM and child marriage, and support a more liberal policy for child refugees. They also advocate basic support (food, shelter) for rejected asylum seekers.

PvDA – We accept refugees but our capacity isn’t limitless

The Partij van de Arbeid or PvdA is the left-leaning worker’s party that focuses on employment and social welfare. In their plan they embrace a European response to the refugee crises with a distribution system, and specifically cite the Geneva Refugee Convention as being the decider of who may stay. But the Netherland’s capacity to help is limited and the country has been put under pressure by accepting refugees- thus they take a strict stance against economic migrants, and encourage more say for municipalities in choosing how many refugees they will accept. A fair asylum policy must make special provisions for the vulnerable, especially children.

SP- Provide ample assistance here and in sending countries

The Socialistische Partij is a leftist social democrat party that takes a Euroskeptic stance on issues like the euro and freedom of movement, hoping to restrict EU policies and migration that suppresses wages. Nevertheless, in their platform they propose a European solution to asylum, namely, that reception centers are placed at international borders and then people found legally able tEo stay are distributed throughout Europe, incuding throughout the Netherlands. Like other parties, they support regional assistance to prevent people from leaving in the first place, and development cooperation in Africa but not with a “post-colonial process.” Refugees within the Netherlands should be equally distributed (“not just in poor neighborhoods”) and should receive ample assistance including mental health care. ‘No one should have to sleep on the streets”, they say, and people in asylum shelter that are at additional risk of violence should receive extra attention.

D66- Smaller numbers mean better opportunities

The Politieke Partij Democraten 66 or D66 is a progressive, pro-democracy and pro-European party founded in 1966. While “not everyone can come to the Netherlands,” they point out that the majority of Syrian refugees are sheltered by neighboring countries. They support strengthening European borders and capacities and accepting genuine refugees (but not economic migrants.) A smaller number of refugees will make opportunities for them to integrate stronger. In the meantime, they deserve assistance and the same rights to housing and healthcare as Dutch people have.

GL- Be realistic and humane towards refugees

The GroenLinks party advocated for a “confident and relaxed” Netherlands and is explicitly in favor of multiculturalism and against racism and discrimination. Their platform on asylum calls out as unrealistic proposals like closing the borders and instead proposes a workable and humane solution. While international development is in order, in the mean time international humanitarian obligations should be followed. They are in favor of European distribution but also believe the applicant’s choice should carry weight – especially in the case of minors who might want to live with relatives.Asylum seekers in the Netherlands should be able to work from day 1 and should have a decision within a reasonable amount of time. Rejected asylum seekers are also entitled to minimal assistance so they don’t end up on the streets.

With these positions in mind, we should be in a good position to speculate where parties have common grounds or irreconcilable differences once we have coalition options come election day (in less than a week!)

Interested in testing out which party suits you best? Stemmen Tracker lets you take a survey and matches your answers to a party.

(Image via Flickr, (CC BY-NC 2.0) http://bit.ly/2m7mezk)

Will Trump go forward with a “Muslim ban”, and if so, how?

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Image via Flickr http://bit.ly/2j5kmd7 (CC BY-NC-ND 2.0)

US President-elect Donald Trump campaigned extensively on immigration issues, highlighting his intention to build a wall at the border of Mexico and deport large numbers of undocumented migrants throughout the campaign. In December of 2015, shortly following the Paris terror attacks, he issued a press release entitled “Donald J. Trump Statement on Preventing Muslim Immigration” in which he called “for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.”

Despite the seemingly clear “Muslim ban” statement from 2015, with its background of the CSP’s survey, Trump’s position appears to have evolved if one looks at the positions taken on his website and by Trump campaign spokesperson Kelly Anne Conway. On December 22, 2016 Conway told CNN’s Chris Cuomo that Trump will pursue a policy of extreme vetting that will be country-based, rather than based on religion and that the policies outlined on his website back this up. “I am asking whether being a Muslim will be a trigger, that’s my question, simple,” said Cuomo, to which Conway responded, “No, no its not.”

Looking at Trump’s website for clarification, we find multiple policy proposals pertinent to immigration but few directly concerning Muslims (other than the Dec. 2015 statement). Under “Foreign Policy and Defeating ISIS,” he promises to:

“Suspend, on a temporary basis, immigration from some of the most dangerous and volatile regions of the world that have a history of exporting terrorism.”

Under the section “Immigration,” Trump outlines numerous proposed changes to immigration policies and comes once again back to vetting, proposing that the US:

“Vet applicants to ensure they support America’s values, institutions and people, and temporarily suspend immigration from regions that export terrorism and where safe vetting cannot presently be ensured.”

So just drawing from Trump’s own published statements, we have three clear possibilities:

  1. Banning certain types of migration on the basis of religion  
  2. Banning certain types of migration on the basis of national/ regional origin
  3. Not banning migration at all but pursuing a policy of extreme vetting from certain regions or for certain religions

Let’s examine each possibility in turn.

1. Banning certain types of migration on the basis of religion

At this point, this seems the least likely possibility given Conway’s denials that being Muslim will be the trigger for exclusion and the scarcity of statements to this effect on Trump’s website (aside from the first one from over a year ago.) But if Trump wanted to ban migration to the US of any Muslim person, even temporarily, would this be possible?

The US Constitution bars discrimination on the basis of religion under the 1st and 14th amendment, and any federal laws that infringe on fundamental rights (such as those in the Bill of Rights) or suspect classifications (such as a particular religious minority group) are judged under the “strict scrutiny” test (see US v Carolene Products, footnote 4). The strict scrutiny test requires that a government law affecting fundamental rights or certain types of minorities (such as religious groups) must serve a compelling interest, be narrowly tailored to meet that interest, and be the least restrictive means of achieving that interest. In other words, a law that would potentially discriminate against a minority group must be practically the only way possible of achieving some need of dire importance to the government. In this case, Trump would likely argue that restricting immigration of Muslims is the best way of achieving the direly important security need of protecting the US from terrorism. While preventing terrorism is no doubt a crucial interest, one can easily point out the flaw in this argument- Muslim immigrants are not the only ones or primary ones who commit acts of terrorism in the US (the majority of U.S. terror acts since 2000 have been carried out by citizens or residents, with around a third being right-wing terrorism), and the vast majority of Muslims have no connection to radical terrorist groups, so the law is probably not narrowly tailored to achieving its means.

But, not so fast. These constitutional protections apply to US citizens, who almost certainly could not legally be barred from traveling and re-entering the US under any “Muslim ban.” But what about non-citizens, such as people wishing to reunite with family members, join a partner, do business, or seek asylum in the US? While the Supreme Court holds that Equal Protection applies to non-citizens, even undocumented migrants, within the US (see Plyler v. Doe at 210) people trying to enter the country are probably not granted the same protection, as multiple presidents in the past have banned groups based on national origin (Iran, Cuba to name a few.)

The real problem with such a ban would likely be the inability of Immigration and Customs Enforcement to identify Muslims.There are some 1.6 billion Muslims in the world and they live in most of the world’s countries and belong to every race. Like with any religion, it would be impossible to pick them out solely using last names, language spoken or country of origin without catching many other people up in the dragnet- like, e.g., Arab Christians, or Sikhs who are often mistaken for Muslim- and missing many others.

Any attempt to determine religion – for instance, by immigration agents asking would-be entrants what religion they are- would clearly be about as effective as previous attempts to sniff out communists (“Are you now, or have you ever been a member of the communist party?”). People could lie out of a variety of motivations, not least of which because they feel unclear about their religious identity, as many do, or because they consider religion a private matter.

Another possibility would be religious profiling- rejecting visa requests, etc, from persons who officials suspect of being Muslim, based on perhaps last names or national origin. But aside from being ineffective, as discussed directly above, any unofficial, behind the scenes profiling would not achieve the effect of pleasing Trump’s supporters, who will probably be looking for hard policies and not secret, implied religious or racial profiling (which at any rate already openly exists at borders).

So an outright Muslim ban, while perhaps not unconstitutional, would prove extremely complicated to enforce and an unlikely choice by the President-elect.

2. Banning certain types of migration based on national/ regional origin.

As discussed above, a move like this has historical precedent and is potentially achievable. But here too, there are problems.

First, as Trump has made clear that his intention is to bar Muslims or at least practitioners of “radical Islam,” there is an issue of which regions or countries could effectively be banned. At first glance, we can see that Muslims make up large segments of the population in Africa, Asia, the Middle East and Europe, as well as Canada. Banning migrants from those countries on the basis that they might be radical Muslims would effectively ban immigration from all but Central and South America, a scenario which seems unlikely to be appealing to Trump, who started his campaign talking about the dangers posed by Mexican immigrants.

If, as in his later statements, Trump wants to ban immigrants from areas that are known for fomenting extremism, it will also be difficult to create a narrow list. As the International Centre for Counter-Terrorism has reported, circa 4,000 EU citizens have traveled to Syria or Iraq to join IS, some 30% of whom have returned to their home countries. The largest number of these are Belgian, French, German, or British, with the highest number coming from Belgium.

If Trump will indeed ban people from “regions of the world that have a history of exporting terrorism,” its difficult to imagine how he can avoid banning immigration from Europe, or at the very least, Belgium, France, Germany and the UK. Such a ban could potentially have a severe impact on relations with America’s close allies in the EU, or result in reciprocal bans for American travellers to Europe.

3. Not banning migration at all but pursuing a policy of extreme vetting from certain regions or for certain religions

As with the first two proposals, this one suffers from an overbroadness. Pursuing extreme vetting against regions that “export terror” will once again have to include European nations, as well as Africa, the Middle East and Asia (particularly Southeast Asia.) Once again, this will mean strict vetting for virtually the entire world, aside from Latin and Central America. As many parts of the world are already subjected to strict vetting, (especially asylum applicants) we will have to wait for further details to determine how President-elect Trump’s plan will go above and beyond this, and how it will determine whether entrants “support America’s values, institutions and people.”

CONCLUSION

A few weeks out from inauguration it still remains to be seen how active Trump will be in his first 100 days, and whether he’ll be able to move forward on keeping his immigration-related promises. However, it is clear that any plan to ban or limit Muslim migrants or migrants from “terror-exporting regions” will require much more thought if it will pass constitutional muster, be stronger than what we already have, or not turn into an all-out immigration ban. We’ll be staying tuned to see if and how Trump attempts to strike a balance.


READ MOREsources and further literature

The Official Donald J. Trump Homepage
“Trump calls for ban on Muslims, cites deeply flawed poll” -the Bridge Initiative
“Strict Scrutiny” from the Legal Information Institute at Cornell
Terrorism In America from New America thinktank (Datasets are downloadable for analysis)
Plyler v. Doe from Migration Policy Institute
Jimmy Carter’s Sanctions Against Iran (includes ban on entrants from Iran)
Racial profiling will still be allowed at airports, along border despite new policy” The Washington Post from 2014 (cites DHS and Justice Department regulations)
The Foreign Fighters Phenomenon in the EU” from International Centre for Counter-Terrorism
“Isis in the Pacific: Assessing Terrorism in Southeast Asia and the Threat to the Homeland” from the Brookings Institute
Screening Process for Refugees Entering the US (Infographic)” from the White House

This article is analysis and thus contains the author’s opinion backed up with links to reliable sources. You are welcome to challenge our perspective in the comments.