EVERY DAY, PEOPLE CROSS. Hundreds of thousands of people cross borders in airplanes and go through customs at an airport. Millions cross borders at land checkpoints, show paperwork, and keep moving. Other crossings are more difficult, more dangerous. They involve deserts, or oceans, or barbed-wire fences. In these scenarios, many people do not survive the crossing.1 Some plan their crossing carefully, packing treasured belongings with a clear vision of their destination. Others leave more hastily, carrying little, the future uncertain. Some border crossers are welcomed, others are treated as invaders and threats. Some people are recognized as vulnerable and viewed as deserving of protection and assistance, others must fend for themselves.
In/out, safe/dangerous, planned/spontaneous, desirable/threatening, legal/illegal, deserving/undeserving, genuine/fraudulent, citizen/alien. There are many labels and contrasts associated with crossing borders. This book is about the persistence and pervasiveness of one specific way we label and react to people who cross: what I call the migrant/refugee binary. Today, the concept of “the refugee” as a figure who is distinct from other migrants looms large. International law and the immigration laws of most receiving states have developed to mimic and reinforce a conceptual dichotomy between those viewed as voluntary (often economically motivated) migrants who can be legitimately excluded by potential host states and those viewed as forced (often politically motivated) refugees who should be let in. According to this binary logic, refugees “pose a problem for the international community quite different from that of other foreigners” whose “transnational movement has been one of choice” (Haddad 2003, 297–98). In other words, “the refugee” has come to be viewed as an exception to the rule that states have a sovereign right to control their borders. In this sense, border crossers who are categorized and recognized as refugees have a privileged legal position compared to other crossers who also might need help but cannot access it.
This book is about the relationship between legal categories and the social and political world. It is based on the idea that how we think and talk about border crossers shapes how border crossers are treated. Especially since the mid-twentieth century, people whose stories have been viewed as fitting within the conception of a refugee as set forth in the 1951 Convention Relating to the Status of Refugees have consistently had more success in accessing rights than other categories of migrants. The internationally recognized definition of a refugee, which is heavily focused on protecting people from political and identity-based persecution, has achieved widespread global acceptance. It has now been adopted by 148 signatory states.2 In contrast, international legal instruments that enumerate the rights of migrants more generally have not been widely ratified, especially not by the states that actually host the vast majority of people on the move (Ruhs 2012).
The fact that refugees have more protections under international law than other types of border crossers is reflected in how publics in popular destination states think about deservingness. A recent public opinion survey from the Pew Research Center found that people around the world were significantly more likely to support admitting refugees, as opposed to migrants, to their countries.3 To test this point further, I conducted a survey experiment embedded within an American public opinion poll, in which a randomly selected half of respondents were asked if they believed the United States has a moral obligation to admit vulnerable refugees (50.6% agreed), and the other half were asked if they believed the United States has a moral obligation to admit vulnerable immigrants (42.8% agreed). In other words, even when both groups are explicitly labeled as vulnerable, and the only difference in the question is the word refugee versus immigrant, I found a statistically significant difference in public support for people who are labeled as refugees.4
These data show that binary logic makes a very clear distinction between those to whom an obligation is owed and those who are less deserving of an international response. Such logic creates warped incentives. It helps to prop up legal regimes that promise people refugee protection only if they can access it, incentivizing risky journeys while at the same time allowing powerful states to invest in preventative measures that make the journeys even more dangerous. Because refugees are recognized as deserving of protections that other border crossers cannot access, when faced with large numbers of spontaneous arrivals, states all over the world are quick to insist that the people arriving are “just migrants,” not “genuine” or “real refugees.” This insistence is used to justify the harsh deterrent measures that prevent people from accessing the ability to claim protective status. In this way, the migrant/refugee binary benefits those states that want to keep people out by emphasizing the ways in which refugees are the exception to the rule. The idea of the rare and special refugee is central to upholding the sovereignty of powerful destination states, the majority of which are in the Global North.5 The concept highlights a type of selective inclusion that is only possible through mass exclusion. Ironically, even criticisms of the elaborate deterrent measures undertaken by Global North states often reify the binary by focusing their critique on the concern that the measures are also screening out refugees, not just the migrants they are designed to stop.
The problem is that the nuanced patterns of global migration and the lived experiences of border crossers push against the binary, revealing it to be a constructed “legal fiction” (Fuller 1967). Legal fictions are concepts that are not accurate depictions of reality, but which are treated as if they are true for purposes of bureaucratic expediency and convenience. If we look closely at migration, we see that people with multiple and various motivations use the same routes and defy categorization at every turn. To be sure, some border crossers are totally forced and some are purely voluntary, some are solely economically motivated and some are exclusively politically motivated, some may be morally deserving of assistance and some may not be. But these distinctions fall along continua and elude clear-cut binaries. Further, these continua do not logically overlay one another such that
refugees = forced = politically motivated = deserving migrants = voluntary = economically motivated = undeserving
The reality is much more complex. Economic development, political corruption, and armed conflict are closely linked processes. Even on their own, economic factors are forces that can compel people to move. Similarly, climate disasters can force people to move in a hurry, while other, more gradual climate changes can affect crops or water supplies and cause major economic strain, which can directly force people to migrate, or indirectly lead to political instability and corruption, which can cause migration. Ongoing conflict destroys businesses, kills breadwinners, cuts off food and medical supply chains, and forces many people who have not been directly targeted by war to flee in order to survive (Crawley and Skleparis 2018). But binary logic continues to insist that there is no such thing as an economically motivated refugee because “the liberal worldview considers market activity to be natural and nonpolitical” (Nyers 2006, 50). So, people who cross borders to save themselves from starvation, for example, are sometimes labeled “survival migrants” to whom very little is owed (Betts 2013).
Based on their research examining migration patterns in North Africa, Collyer and de Haas (2012) have advocated that scholars of human mobility shift their attention away from static categories because they inadequately conceptualize how people in motion, now more than ever, cross categories and statuses throughout their migration journeys. Instead, Collyer and de Haas suggest that contemporary migration patterns should be viewed as “dynamic” processes. Even leading legal experts on migration, who as a group tend to place a heavy emphasis on legal categories, have also recently observed that the migrant/refugee binary is a “gross oversimplification” (Ramji-Nogales 2017b, 11), and that refugee law is “ill-suited to migration realities” because the line between refugees and other border crossers is “exceedingly difficult to draw” (Motomura 2020, 32).
And yet, even though it is known to obscure nuance, the binary persists. The distinction continues to dominate political thought about borders, scholarly studies of migration, and public discourse by policymakers, advocates, and the media. Rather than being driven by conceptual clarity, institutional factors (including the structures that shape academic scholarship and advocacy) continue to reify the distinction and lead many scholars and advocates to explicitly defend its use. The migrant/refugee binary may be a fiction, but it is a powerful, enduring, and deeply consequential one.
The argument I present here is that, like all legal fictions, the migrant/refugee binary endures because it is an “expedient but false assumption” that has utility for powerful actors in the system (Fuller 1967, 9). This particular legal fiction serves the purpose of depoliticizing the most difficult ethical decisions that receiving states must make about whose protection should be prioritized. Subsequently, it makes harsh border control measures more ethically palatable to the general public. As Fuller has argued, a legal fiction “becomes wholly safe only when it is used with a complete consciousness of its falsity” (10). The migrant/refugee binary is thus a dangerous legal fiction. By making these categories seem natural, the migrant/refugee binary masks the ways in which such categories have been politically constructed to elevate the suffering of some people above the suffering of others. Thus, this book argues that the migrant/refugee binary is a key “ordering principle of the current international system,” one that contributes to the precarity of an ever-increasing number of border crossers (Gündoğdu 2015, 11). Its power stems from its portrayal as objective, neutral, and apolitical, and its endurance “poses a central challenge to efforts to reinvent global migration law” (Ramji-Nogales 2017b, 11).
The arguments in this book are very much in the tradition of the subfield of scholarship that is sometimes known as “critical refugee studies” (Espiritu 2014). Beginning in the late 1990s, works by Tuitt (1996), Chimni (1998), and Soguk (1999) forged the claims that the contemporary international refugee regime had been motivated by more than just humanitarianism, that refugees have been used as geopolitical strategic tools, and that the international legal definition of a refugee privileges some forms of violation and delegitimizes others. These early scholars worked in the Third World Approaches to International Law (TWAIL) tradition, which centered the perspectives of formerly colonized people in the Global South, and which understood international law to be a tool of subordination. More recently, critical refugee scholars have described the ways in which the international refugee regime is based on a “grand compromise” (Cuellar 2006) through which Global North donor states contribute to humanitarian causes with the expectation that displaced people will be contained in the Global South (Arar 2017). These dynamics perpetuate the global wealth and power imbalances that stem from colonial legacies and neocolonialism (Achiume 2019). In the spirit of critical refugee studies scholarship, this book argues that the logic of the migrant/refugee binary helps to obscure these power imbalances by guiding us to focus on internal explanations for why people are leaving countries in the Global South (corruption, war, poverty) rather than externalist forces such as globalization, postcolonialism, and the failures of neoliberalism (Chimni 1998).
The reorientation that a nonbinary approach would require is hardly a straightforward endeavor. It would involve a total reevaluation of the notion of responsibility and obligation toward the world’s vulnerable people. It would call upon powerful and privileged actors to confront longstanding practices of oppression and domination. It would demand an openness to the notion that international human rights law and international humanitarian organizations do not always serve to protect the weak. Nevertheless, my argument is that we should not postpone this difficult work by using the migrant/refugee binary to stymie creative conversation. The binary limits the ability of scholars, advocates, and policy-makers to be imaginative and visionary about the future. In short, vulnerable border crossers do not benefit from its persistence as a dominant framework for public debate about border crossing.
1. The International Organization for Migration’s Missing Migrant Project has compiled a record of 33,686 verifiable deaths and disappearances globally in the six-year period between 2014 and 2019. The majority of those deaths occurred as people tried to cross the Mediterranean Sea, although the Sahara and Sonoran deserts are also deadly places. https://missingmigrants.iom.int/ (last accessed June 25, 2020).
2. The list of parties to the 1951 Refugee Convention and 1967 Protocol can be found here: www.unhcr.org/en-us/protection/basic/ 3b73b0d63/states-parties-1951-convention-its-1967-protocol.html (last accessed June 25, 2020).
3. The Pew Research Center study can be found here: www.pewresearch.org/fact-tank/2019/08/09/people-around-the-world -express-more-support-for-taking-in-refugees-than-immigrants/ (last accessed June 25, 2020).
4. UMass Module, Cooperative Congressional Election Survey, pre-election survey (September–October). N = 1000 for the module, sampling conducted by YouGov’s “matched random sample” methodology. For additional details on this survey, see Schaffner, Ansolabehere, and Luks 2019. A special thank you to my colleague Scott Blinder for helping me with question wording and data analysis.
5. The Global North/South binary is another oversimplification that is fraught in its own particular ways, and is equally vulnerable to critiques of “binary essentialism” (Go 2016, 12). While that binary is not the focus of this book, I discuss the choice to use this terminology, and its pitfalls, in much more detail in chapter 5.