In March 2020, the COVID-19 pandemic led to the closure of Canada’s international borders. This closure was not absolute; it was marked by several exceptions. Those exceptions were contained in a series of Orders-in-Council (OiCs) which became the government’s mechanism of choice for governing the border. OiCs are swift, efficient, and flexible legal instruments, which makes them well-suited to a public health emergency. We explore the nature, function and impact of regulating Canada’s borders through OiCs. Focusing on both the procedural and substantive dimensions of OiCs, we interrogate their potential political, legal, and social consequences. We draw on the theory of the emergency to unpack and illustrate how this unfolds, and to explain why it creates serious challenges for longer-term immigration regulation. We demonstrate how the use and content of OiCs has reignited reliance on status-based distinctions and harbours the potential for discrimination in immigration regulation.
The paper discusses the failed – or doomed to fail – attempts of the European Union to establish a system of allocation of responsibility for the processing of asylum claims that would strike a workable compromise between the different groups of Member States created predominantly by geography. The unattainable goal pursued by the Commission seems to be to build such a system upon solidarity between member states. Agency of the asylum seeker, her rights, interests and preferences are almost completely irrelevant, putting the values of solidarity and agency seemingly at odds with each other. But it cannot be overlooked that by reconceptualising solidarity, we could potentially identify solutions capable of satisfying both values at the same time.
The proposal concerns the protection of stateless persons in recent case-law of the ECtHR. In Hoti v. Croatia (2018) and Sudita Keita v. Hungary (2020), the ECtHR recognized positive obligations arising under Article 8 in respect of a special category of immigrants who are stateless and emphasized the necessity of the creation of legal mechanisms to regularize such persons’ residence status. We will discuss both judgments in respect to ECtHR case-law and UN law to show that in its formulation of the requirements in respect of procedure(s) to regularize residence status, the ECtHR took recourse to UN standards. In doing so, however, the ECtHR took a selective approach, prioritizing the protection of stateless persons rather than safeguarding avenues to citizenship. Finally, we will point out the improvement of the situation of stateless persons, particularly when states are not signatories of UN Conventions but are indirectly bound by the UN standard as mediated through ECtHR.