EASA2018: Staying, Moving, Settling

(P066)
The impact of law on transnational families' staying, moving and settling
Location SO-F307
Date and Start Time 15 Aug, 2018 at 09:00
Sessions 2

Convenors

  • Jessica Carlisle (Newman University) email
  • Iris Sportel (Radboud University Nijmegen) email

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Discussant Annika Rabo (University of Stockholm)

Short abstract

Law shapes people's decisions to stay, move, or settle. Institutions interpret international treaties and domestic legislation producing dynamic categories of deserving and undeserving migrants. Transnational families use, avoid or subvert this law to facilitate migration and maintain kinship.

Long abstract

Law and routine legal practice fundamentally shape people's attitudes towards staying in a country, their choices about moving overseas, and their options for settling abroad.

Individual migrants' interactions with bureaucrats, lawyers, advocacy organizations, and judges produce dynamic categories of deserving and undeserving migrants. The resulting legal statuses create, reunite or break transnational families, reconfiguring kin relations across borders.

This panel will bring together empirical research on the impact that family, citizenship and immigration, criminal, and human rights and refugee law has on family ties within differently positioned transnational families. Research sites might include CSOs, lawyers, government bureaucracies and families in any transnational context. We are interested in research focusing on either privileged or disadvantaged transnational family members; intersectional analyses of the legal production of categories of deserving and undeserving migrant kin; and critical enquiries into the concept of the transnational family.

Papers could discuss:

How migrants' sources and levels of legal knowledge shape their use, avoidance or subversion of the law;

The "legal work" required to maintain family ties across borders;

The impact of international human rights law (eg. the UN Convention of the Rights of the Child) in lived experiences of attempting to reunite and settle;

The role of law breaking in sustaining the transnational family;

When law allowing or preventing migration contributes to power relations within transnational families;

The successes and failures of lobbying towards changing legal categorisations relevant to transnational families;

How transnational families' experiences reflect, or do not, reflect political and public discourse about them.

This panel is closed to new paper proposals.

Papers

Immigration and Domestic Violence in Australia: A longitudinal approach to the impact of law on migrant women's mental health.

Author: Ana Borges Jelinic (University of Queensland) email
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Short abstract

When visa rights are linked to surviving domestic violence, migrant women often experience additional practical and emotional challenges. This paper focuses on women's visa process through time with experiences of intersecting vulnerabilities, resilience, confusion, deportation and complex trauma.

Long abstract

Increasing numbers of migrant women on partner visas move to Australia every year, despite concerns regarding immigration and national security and a persistent high level of domestic violence in the country. Many migrant women, from all cultural and social backgrounds become trapped in abusive relationships due to a combination of complex personal and systemic reasons. Women are 70% of the applicants for partner visas, two thirds of the displaced people in the world and the overwhelming majority of survivors of domestic violence. Therefore, it is fundamental to consider gender violence and women's wellbeing when addressing immigration policy. This longitudinal research discusses mental health and material issues experienced by migrant women that engage with the Australian Department of Immigration through the Domestic and Family Violence Provisions. These were progressive laws when established, but many other Western countries have developed more appropriate legal remedies since. The data presented here was collected from 40 interviews in 2017 and 2018, with 20 migrant women undergoing a visa process under the Domestic and Family Violence Provisions. The data reveals experiences of resilience and personal growth but also reveals migrant women's worsening mental health throughout the visa process.

Dependency, "Performances of Deservingness" and Transnational Family Ties: Cross-Border Relationships of Spousal Visa Holders in Hong Kong and Melbourne

Author: Alexandra Ridgway (The University of Hong Kong ) email
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Short abstract

This paper builds upon research into the relationship between legal statuses and transnational family practices. It does so by exploring how one particular legal status - the spousal visa - impacts upon the maintenance of transnational family ties for migrant women in Hong Kong and Melbourne.

Long abstract

In his work on superdiversity, Vertovec (2007) observes the importance immigration channels and legal statuses play in the lives of migrants. Immigration processes and statuses set out the legal terms and conditions for the acceptance of migrants into host societies and for regulating their social and economic participation. Yet, importantly, these statuses also act more subtly, encouraging particular ''performances of deservingness'' from migrants. Within transnational family studies, legal statuses have been found to influence the way in which family practices are performed within host societies and across borders (Fresnoza-Flot, 2009; Leifsen & Tymczuk, 2012). However, this research is still in its infancy with less work directly linking transnational family practices with social expectations or frames of "legal deservingness" (Chauvin & Garces-Mascarenas, 2014).

This paper builds upon research into the relationship between legal statuses and transnational family practices. It does so by exploring how one particular legal status - the spousal visa - influences transnational family ties. It specifically considers how the nature of the spousal visa as relationship-dependent and a form of liminal legality (Menjivar, 2006) impacts the transnational kin work (Baldassar, 2008) of cross-border relationship maintenance. Stories of female spousal visa holders in Hong Kong and Melbourne reveal the spousal visa to be a powerful force, pressuring them into positions of dependency in order to demonstrate their ''deservingness'' of this legal status. The paper explores how this pressure and dependent positioning, along with the performances of deservingness it encourages, impacts upon the maintenance (or not) of transnational family ties.

Interpretation of Law, Interpretation of Chinese "Illegals" in Hong Kong

Author: Wai-chi Chee (Hong Kong Baptist University) email
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Short abstract

This paper examines the lives of a group of mainland Chinese who lost their right of abode as a result of the interpretation of the Basic Law regarding the eligibility of mainland-born children of Hong Kong residents.

Long abstract

In anticipation of Hong Kong's (HK) handover to China in 1997, the Basic Law was passed in 1990. Article 24 stipulated that mainland-born children of HK permanent residents would be granted the right of abode. This triggered waves of undocumented immigration from mainland China. Parents brought in their children, sometimes illegally, to wait to make claims after the handover. By 1999, the number surged to tens of thousands. This sparked fears of an influx of migrants. After many contentions and litigations, the HK government, claiming to settle the controversies once and for all, requested an interpretation of the Articles in question by the Beijing government. The interpretation ruled that mainland-born children would be eligible for the right of abode only if at least one parent had already acquired permanent residence status at the time of their birth. Eligible children must wait in China, not HK, for their turn to immigrate. However, this did not stop the waves of illegal immigration. The rumor of special amnesty for overstayers sparked off another surge of immigrants. In 2002, the HK government enforced repatriation and sent back to China about 8,000 mainlanders. Facing this hard policy, some mainlanders returned voluntarily, but some went underground. This paper explores the experiences of a group of mainland children who went into hiding since then to shed light on their decade-long "illegal" lives in HK, and considers how their lives are fundamentally shaped by the shifting meanings of "legal immigrants" in legislation.

Transnational marriage in Yiwu, China: mobility, settlement, and children's education

Author: Heila Sha (University of Sussex) email
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Short abstract

In this paper, I exam how internal and international migration policies in China combine with precarity in informal trading activities to create a sense of uncertainty among transnational families in terms of settlement and children's education in Yiwu.

Long abstract

In this paper, I exam how internal and international migration policies in China combine with precarity in informal trading activities to create a sense of uncertainty among transnational families in terms of settlement and children's education in Yiwu.

Yiwu, the world's largest wholesale market for small commodities in China, has witnessed rapid growth in transnational marriages in the last two decades. Most husbands in such households are Muslim traders from Africa, Arabic or south-Asian countries. The majority of wives are migrants from other parts of China. The Chinese household registration (hukou) system results in mothers and children being excluded from local social benefits, whilst husband's businesses are vulnerable to changes in state policies and fluctuations in global markets. Recent changes in Chinese immigration policy and instability in global markets have resulted in widespread insecurity and in some women coming under pressure to move to their husband's home or a third country.

Based on six months fieldwork in Yiwu, I explore the complex intersection of trade, state policy and family strategies in influencing migrants' decision-making. I argue that intermarriage plays an important role in anchoring trading networks in Yiwu, but that such households face significant uncertainties due to structural constraints resulting from state polices and instability in both domestic and global economic circumstances. Furthermore, personal dimensions of attachment and family orientation are important factors influencing decisions regarding migration. Women are active agents in negotiating new circumstances but their agency is limited by these structural constraints.

The Making of 'Left Behind' Women: The Impact of Debates about Abandoned Migrant Muslim Women's Right to Parent in The Netherlands

Author: Jessica Carlisle (Newman University) email
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Short abstract

Flexible rules for visa applications from 'left behind' mothers bucked a trend in the 2000s towards increasing restrictions on low-skilled immigration to The Netherlands. This paper analyses the negative gender outcomes of awarding exceptional status to migrant Muslim mothers of Dutch children.

Long abstract

Throughout the 2000s, the Dutch government increasingly restricted opportunities for low-skilled immigration. These restrictions included the introduction of higher bars on eligibility for marriage migrants to move to The Netherlands in order to settle with Dutch residents or citizens.

This policy emerged from political and public debates focused on the perceived failure of (particularly Moroccan, Turkish and other Muslim) migrants to adjust to life in The Netherlands. These debates have frequently characterised Muslim migrant men as having both agency to resist integration and power to prevent their wives from integrating by isolating them from Dutch society.

The cause of 'left behind' mothers became a symbol of this alleged gender dynamic in the mid-2000s. Women in this situation migrate to settle with Dutch citizen or resident spouses. Their husbands subsequently abandon them with their natal families after seizing their Dutch visas. They have subsequently had difficulty gaining immigration status to re-enter The Netherlands.

Although their cause was first championed by migrant rights' groups, it became swept up in an ideological project to save migrant women from abusive, Muslim husbands. The result was a new rule technically simplifying the processing of 'left behind' women's visa applications.

This paper discusses how the category of 'left behind' women was constructed in a climate of hostility to immigration, the related issuing of flexible rules for granting them re-entry visas, and the impact on three migrant women's cases. The 'left behind' policy's gender outcomes have not only disadvantaged men, they have not significantly aided women.

Migration law as a resource of power in intimate relationships

Author: Iris Sportel (Radboud University Nijmegen) email
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Short abstract

In marriage and family relations, like in all social relations, power comes into play. For migrant and transnational families, migration processes can have a significant impact on power relations in the family. Moreover, migration law can be a powerful tool in transnational family conflicts.

Long abstract

In marriage and family relations, like in all social relations, power comes into play. For migrant and transnational families the migration process can have a significant impact on power relations in the family. Especially when there are differences between family members with regard to residence status, migration law can be a powerful tool in transnational family conflicts. For example, when family members have a dependent residence status, the sponsoring family member can invoke the state's power in conflicts and have the other expelled from the country of residence. As migration law can limit the mobility of some family members more than others, depending on nationality, crossing borders during family conflicts can also help escape obligations such as child care or maintenance. These possibilities to use migration law as a resource in family conflicts are closely connected to intersections of gender, social class and, especially, nationality, which in itself is often gendered. Especially in marriages between partners from the West and the global South, western nationality produces a position privileged over other nationalities with regard to mobility and rights of residence.

In this paper, I aim to shed further light on how migration processes affect inter-family power relations in families where one spouse is a migrant while the other is not. Drawing on interviews with spouses divorced from Dutch-Moroccan and Dutch-Egyptian mixed and migrant marriages and additional interviews with legal professionals, NGOs, social workers and embassy personnel, I will focus specifically on the role of migration law in transnational family conflicts.

The impact of the Swiss migration policy on transnational grandparenting: the case of mobile European and non-European migrants' parents providing childcare in Switzerland

Authors: Mihaela Nedelcu (University of Neuchâtel) email
Malika Wyss (University of Neuchâtel) email
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Short abstract

Based on a comparative qualitative study of grandparenting practices within EU and non-EU transnational families, this paper shows that the Swiss migration regime is significantly shaping the mobility patterns and the involvement of migrants' parents in transnational childcare arrangements.

Long abstract

As grandparents, mobile migrants' parents - i.e. the so called "zero generation" (G0) - are involved in specific forms of transnational care which imply more or less regular sojourns in the households of their children abroad. Previous scholarship highlighted numerous features of this kind of transnational grandparenting and childcare, explained by various factors among which migratory regimes of host countries play a key role. However, there is a lack of comparative studies including transnational families that originate from both South and North' countries.

Switzerland constitutes an exemplary case study. Its two circles migration policy distinguishes between EU nationals (benefiting from the Agreement on the Free Movement of Persons) and non-EU nationals (subject of restrictive rules defined in the Federal law on foreigners). Consequently, EU G0 grandparents can freely enter in the Swiss territory and eventually permanently reside under financial conditions. In contrast, non-EU grandparents need a touristic visa that allow them to stay in the country for a maximum of three months, while their possibility to settle are close to zero, as ascending family reunification is practically impossible.

This paper is based on a comparative qualitative study of the G0 childcare arrangements within transnational families of European (Italy, France and Germany) and non-European (North-African and Brazilian) origins. It shows that legal constraints and/or opportunities impact on the timing and the meaning of transnational grandparenting patterns. Thus, they are significantly shaping the ways EU and non-EU transnational families are organizing the involvement of G0 grandparents in childcare arrangements.

Constructing and deconstructing kinship in Finnish court cases on arranging illegal immigration for relatives

Author: Taina Cooke (The University of Oulu) email
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Short abstract

This paper examines the Finnish court cases in which illegal immigration is arranged for family members. The law can consider the impact of 'close family ties' in convicting for the act but as the evaluation is dependent on a case-by-case evaluation, kinship opens to a multitude of interpretations.

Long abstract

The arrangement of illegal immigration has increased in number significantly over the past years in Finland. Drawing from a set of court cases on illegal immigration, this paper considers the making and unmaking of kinship in legal deliberations. Finnish courts comply with the UN regulations (Palermo Convention, Smuggling Protocol) in their assessments on migrant smuggling and can dismiss the indictment if the act was committed "for humanitarian reasons or on the basis of close family ties" (A/55/383/Add.1: 16). However, while Finnish courts can account for the impact of family ties when assessing cases regarding the arrangement of illegal immigration, it is not clear what counts as close family relations referred to in the law. Underlining the overall elusiveness of kinship in legal deliberations, this paper examines how kinship is argued and evaluated by twenty Finnish courts among 178 separate cases. First, it considers biological, on one hand, and socio-cultural, on the other, in defining appropriate kinship, and concludes that the courts stress a history of co-habitation over a biological bond. Second, it examines the impact of cultural ideals regarding suitable family relations when the courts rule on the significance of kinship in the cases of illegal immigration.

Bordering ingeniousness by lawfulness - the creative use of overlapping legal systems in family reunification

Author: Hester Kroeze (Ghent University) email
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Short abstract

Conditions to family reunification are governed both by European law and national law. This overlap creates tensions and questions of equality, but also offers the opportunity for families to pursue the most favourite regime. The paper explains existing tensions and the strategies to deal with them.

Long abstract

EU-directive 2004/38/EC regulates the free movement of persons in the European Union and protects the right of all Union citizens and their family members to travel to- and/or reside on the territory of all Member States of which they do not have the nationality, under favourable conditions. These family members may be other Union nationals, but they may also be third country nationals with or without a permit. The ratio of this set up is to make cross-border movement within the Union as attractive and easy as possible. The European regimes contrasts with family reunification law at the national level, which is often more stringent. The result thereof is the emergence of a creative use of Union law that serves to legalize an illicitly residing third country national family member of a Union citizen through movement between Member States. Moreover, the case law of the European Court of Justice provides for the possibility to 'take once acquired rights back home' (C-370/90 Surinder Singh, ECLI:EU:C:1992:296), which allows for the application of a U-turn construction to avoid national immigration law - the so-called 'Europe-route'. This paper elaborates on the question whether this behavior is lawful or should be addressed as abuse of law. The main question that is addressed is: 'To what extent does family reunification on the basis of Directive 2004/38 Amount to Abuse of Law?'

This panel is closed to new paper proposals.