20 August 2013


 'Deporting the Citizens within the European Union: A Counter-Intuitive Trend' by Dimitry Kochenov and Benedikt Pirker in Columbia Journal of European Law considers 'deportability'
The paper provides a detailed analysis of EU law on the deportations of EU citizens between the Member States taking the case of P.I. as a starting point. We approach deportations from a social science perspective, focusing on the notion of 'deportability' as an essential element of what citizenship is. Deportability and non-deportability is one of the last critical legally meaningful oppositions between citizens and non-citizen residents. Analysing the regulations on the potential deportatability of citizens provides a sketch of the core of what a particular citizenship status, including EU one, is about. What the latest developments in the case law unquestionably demonstrate is that the ECJ is working towards the elimination of the non-deportability guarantees in the Citizenship Free Movement Directive, de facto erasing the status of permanent resident EU citizens as a legally meaningful construct. This is in strong opposition to the strict prohibition of requiring EU citizens to leave the Union -- the core of Ruiz Zambrano and its progeny. The claim that 'internal' deportations within the EU are potentially less harmful than the deportations requiring citizens to leave the Union is baseless, as both can be equally disruptive in the context of concrete human lives. Deploying judicial means to remove protections against internal deportations is thus a totally counter-intuitive trend.
The authors comment that
The general vector in the development of citizenship of all the liberal democratic polities around the world during the last decades is clearly decipherable. As Joppke has demonstrated, this development is marked by the thinning out of the essential elements of the legal status as well as the opening up of a number of rights of citizenship to those who do not possess the formal legal status of citizenship.The majority of the rights classically associated with this status are not limited to the citizens anymore and have been opened up to resident non-nationals and others. As a result, only a very limited amount of rights—and at times duties - remains uniquely associated with the status of citizenship as such. The rights not granted to those who do not have the formal legal status, are the essential determinants of the citizenship’s contemporary content, approached as a legal status. A simple survey of such rights would result in a list, which is not long at all. It is usually limited to political rights, rights to occupy high offices (which presumably follows the same rationale in excluding non-citizens), and the unconditional right to enter and stay in the territory of the polity, which granted the status of citizenship its legal substance in the first place. Consequently, political rights coupled with the right to enter and stay are the key determinants of what the legal aspect of citizenship of a modern democratic polity is about. 
Having outlined the two, it is possible to establish a hierarchy between them from the point of view of an ordinary citizen. Political participation is limited by age and interest and has been falling gradually in all the democracies. In fact, democracy functions on the essential assumption that citizens are not actively involved, even if the contrary is the essence of its ideological component.Residence security, on the contrary, concerns all the citizens of all ages interested in residing in the territory of the polity whose citizenship they possess, which is usually the majority of citizens, should we speak about moderately successful polities and exclude the extreme cases. Approaching exclusive citizenship rights in such a way, it becomes clear that residence security is at the core of what the essential legal essence of the citizenship status is now about. It is the most important of the “few remaining privileges which separate citizens from settled non-citizens in contemporary liberal states.” 
... To put it differently, a sound argument can be made in favour of placing deportability and non-deportability among the essential paradigms guiding the contemporary understanding of citizenship as a legal status. Citizenship developed through the last century alongside the growing toleration of deportation of aliens, which, though initially viewed as an exceptional measure applied usually in times of war, managed to enter the mainstream of contemporary migration regulation. Start deporting citizens and citizenship largely evaporates as a meaningful legal category, which is why the absolute majority of states take the ban on the deportations of citizens very seriously: it is being non-deportable and not pushed to leave the territory of the state that makes you a citizen in this view,reaffirming citizenship’s normative qualities. 
Given that at the essence of citizenship is the borderline between those who “belong” and those who do not, deportability plays an essential role, providing a readily available marker of “otherness.” In order to function and be effective in this context, deportability should not necessarily be rigorously acted upon—far from that: “deportation is, from the state’s point of view, both ineffectual and essential.” Its presence as a mere possibility is already enough in order to shape the boundaries of belonging in contemporary societies, as well as intrude into human lives akin to the sword of Damocles. Numerous difficulties that necessarily arise in the context of acting on deportability have been outlined in the literature: Deporting people is surrounded by fundamental conflicts inherent in the very nature of liberal democratic states respecting human rights obligations. Either acted upon, or not, the symbolic importance of the prospect of deportation, its mere possibility, play an essential role in outlining with clarity the scope of those who are citizens of a polity, as opposed to merely residents. Deportation is thus “constitutive of citizenship” — i.e., construction of a citizen and the construction of a deportable subject go hand in hand and are indeed two parts of the same coin.