Defining Social Boundaries through Litigation on Refugees and Asylum Seekers in South Africa

• In Event: 4151 - International Migration Roundtables
  In Refereed Roundtable (60 min): Table 2: Critical Refugee Studies II

Abstract

In face of increasingly restrictive government policies and erosion of legally protected rights for international migrants, including refugees and asylum seekers, litigation has become an increasingly important tactic for migrant rights organizations and social movements. However, litigation has often been recognized as a potentially limited tactic for achieving social movement goals and broader social change. Rather than an instrumental approach to law in terms of court orders and legal decisions, scholarship has emphasized the constitutive role of law in relation to broader social movements, identities, and norms, in particular the law’s endogeneity within the broader social context which it seeks to regulate (Edelman et al 2010). While there is attention to the role of litigation on behalf of asylum seeker and refugees, this is generally focused on courts protection of individual refugee rights. In this paper, building on a constitutive perspective of legal action, I instead analyze the legal rhetoric used during class action litigation related to refugees and asylum seekers to explore how such rhetoric reflects and reproduces specific bureaucratic labels and social boundaries. To support this argument, I review class action litigation related to refugees and asylum seekers in post-apartheid South Africa from the early 2000s to the present. Class action litigation related to refugees and asylum seekers in South Africa embodies several challenges and contradictions in the reproduction of bureaucratic labels and social boundaries. Therefore, rather than focusing on litigation as a means to an end, I argue that legal rhetoric used by various parties – interest groups, legal organizations, lawyers and judges, government departments – plays an important, and often overlooked role, in the construction and reproduction of various social boundaries and bureaucratic labels, not only for asylum seekers and refugees, but also in relation to broader racial, social, and spatial divisions and borders.

Author

• James (Jay) G Johnson, University of Toronto