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ORBIT - Online Repository of Birkbeck Institutional Theses Enabling Open Access to Birkbeck’s Research Degree output ’Freedom from seizure’ : law and asylum in conflict https://eprints.uk/id/eprint/40172/ Version: Full Version Citation: Behrman, Simon Alexander (2016) ’Freedom from seizure’ : law and asylum in conflict. [Thesis] (Unpublished) c 2020 The Author(s) All material available through ORBIT is protected by intellectual property law, including copy- right law. Any use made of the contents should comply with the relevant law. Deposit Guide Contact: email ‘Freedom from Seizure’: Law and Asylum in Conflict Simon Alexander Behrman PhD Thesis Birkbeck, University of London ! 1! DECLARATION The work presented in this thesis is my own: Simon Behrman ! 2! ABSTRACT The central argument of this thesis is that law and asylum are fundamentally incompatible.

In contrast to the standard claim that the coming of refugee law has been key in guaranteeing a space of protection for refugees, I argue that law has been instrumental in eliminating spaces of protection, not just from one’s persecutors, but also from the biopolitical grasp of sovereign power. This thesis is presented in three parts. First I examine the genealogy of asylum. By uncovering certain fundamental aspects of its construction, namely its concern with defining space rather than people, and its role as a space of resistance or otherness to sovereign law, I demonstrate that asylum has historically been antagonistic to law, and vice versa.

In the second part, I look briefly at the development of international refugee law, and in doing so present a counter-history to the idea that this process was about restricting the caprice of states in relation to the admission of refugees and was grounded in humanitarian concern. Instead, I argue that refugee law was constructed precisely to ensure the effective management of large movements of forced migrants. Finally, in the third part of the thesis, I treat the US Sanctuary Movement (1981-1991) as a concentrated example of what happens when the old tradition of asylum confronts modern refugee law. Here many of the themes of parts one and two are revisited, but with the added twist that now the ideology of refugee law serves to hegemonise and undermine the practice of asylum/sanctuary from within.

! 3! CONTENTS Acknowledgments 7 Thesis Introduction 10 Part I – A Genealogy of Asylum Introduction 38 Chapter One: Biblical Traditions 42 Chapter Two: Ancient Greece 49 Chapter Three: Rome 67 Chapter Four: The Early Church 76 Chapter Five: Sanctuary in England 94 Chapter Six: Decline of Sanctuary 117 Conclusion 139 Part II – The Coming of Refugee Law Introduction 144 Chapter Seven: The Evolution of International Refugee Law 173 Chapter Eight: The 1951 Convention 189 Conclusion 201 Part III – The US Sanctuary Movement Introduction 207 Chapter Nine: Birth of the Movement 210 Chapter Ten: Aspects of the Sanctuary Movement 228 Chapter Eleven: The Sanctuary Movement on Trial 251 Chapter Twelve: Critical Reflections on the Sanctuary Movement’s ! 4! Relationship to Law 278 Conclusion 308 Thesis Conclusion 312 Bibliography 322 ! 5! Dedicated to the memory of Bernard Behrman (1931-2013). ! 6! ACKNOWLEDGMENTS Researching and writing this thesis has been one of the most difficult things I have ever had to do. Perhaps the hardest part has been the isolation. To complete such a task without the support of formal teaching, classes, structured given tasks and a community of students working on the same subject has been the real challenge.

Nonetheless it is far from being the truth that what follows could have been achieved under my own steam alone. Instead I have been the recipient of much generous support and help from a number of people. First, I am immensely grateful to my thesis supervisors, Thanos Zartaloudis and Patricia Tuitt. Without Thanos’ encouragement I would never have embarked on a PhD or an academic career.

Indeed, I would not otherwise have thought myself capable of doing either. In addition, Thanos taught me refugee law at both undergraduate and graduate level. He was and is a kindly but critical (in the best and multiple senses of that term) teacher. Throughout the writing of this thesis his comments and questions have been pointed but always thoughtful and helpful.

Patricia has also been very supportive of my work from the beginning. In addition, her writings have been a continuing source of inspiration for me. Her ground-breaking book False Images: Law’s Construction of the Refugee gave me ‘permission’, if you like, to develop my own highly critical approach to refugee law. In spite of her heavy workload as head of the Law School at Birkbeck, she has always been available to discuss and make suggestions on my thesis.

In addition, every supervision meeting was held over a delicious meal at a restaurant, to which she treated me. There aren’t many PhD students who get that perk from their supervisors! Both Thanos and Patricia have been exemplary supervisors in that they have consistently guided my work, yet given me the independence to argue my point of view and to pursue my own lines of enquiry. ! 7! It would not have been possible for me to write this thesis without the generous support of the Arts and Humanities Research Council (AHRC) who funded my research through a Doctoral Award. I am extremely grateful to them for that.

That funding was also partly in the gift of the School of Law at Birkbeck. My sincere thanks go to the faculty there for having such confidence in me and my work. Indeed, the whole community of lecturers, support staff and students at the School of Law at Birkbeck has been a wonderful and totally unique environment in which to do my law studies. I began there as an LLB student, and continued through my Masters and then onto my PhD.

The critical theoretical approach and the resolutely unstuffy atmosphere has allowed me, and many others besides, to ask the radical questions, and to present the most unorthodox of ideas and conclusions. Such an approach is of the greatest importance, now more than ever, as the academy becomes ever more subordinated to neo-liberal strictures. The section of this thesis on the Sanctuary Movement is based on research carried out at the John W Kluge Center at the Library of Congress in Washington DC. This was made possible by additional funding jointly from the AHRC and the Kluge Center.

In particular I must record my sincere thanks to Mary Lou Reker at the Kluge Center. When my travel arrangements were upset at the last moment (ironically due to immigration issues), she was immensely supportive and helped organise things so that I could begin my residency at a later date. In addition to that, it transpired during my stay there that she had been an active participant in sanctuary for a Vietnam War draft-resister in the early 1970s. Her description of that event was inspiring.

She also gave me very useful advice on pursuing certain sources of material on those events. During my time in the US I was also able to consult a number of archives containing primary materials on the Sanctuary Movement. My sincere thanks go to the staff and volunteers at the Dumbarton Methodist Church, Washington DC; History Library, US Citizenship and Immigration Services, Washington DC; First United Methodist Church of Germantown, Philadelphia; Swarthmore College Peace Collection, Philadelphia; Graduate Theological Union Archives, Berkeley; and the library of the Wisconsin Historical Society, Madison. ! 8! The latter stages of writing this thesis were done after taking up a full-time job as lecturer at the Law School at the University of East Anglia.

My colleagues there have also been very supportive and helpful. In particular I owe thanks to my office roommate, Polly Morgan, who has very patiently and uncomplainingly answered many of my queries about grammar and formatting. My wife, Asuka, has been an enormous support throughout my studies, through the completion of her own doctoral studies and the pregnancy and birth of our two children. I owe her for the many times when she took on my share of the household chores; plus her love, care and encouragement have kept me sane when the stresses of researching and writing this thesis threatened to overwhelm me.

Finally, I owe the longest standing debt to my parents, Bernard and Terri Behrman. Both of them have encouraged and supported me in more ways than are possible to describe here. Suffice to say that they have done an enormous amount to instil in me the confidence to express myself, and the desire to explore the world critically, both of which were indispensable in the writing of this thesis. I was halfway through writing this thesis when my father died.

It is one of my greatest regrets that he did not live long enough to read it and to offer his own critical comments. He was himself an exile, having originally left his native South Africa in the late 1950s to pursue graduate studies in England. When increased repression of the anti-apartheid movement, of which my dad was an active member, culminated in the infamous Rivonia trials, he found himself unable to return to South Africa for the next three decades. So at various moments he was, in the jargon, an economic migrant, a refugee sur place and an exile.

The fact that he was never firmly categorised as one or any of these things was largely down to the politics and the conditions that prevailed then, before immigration and refugee law became as restrictive and obsessed with categorisation as it has. Thanks to him I grew up surrounded by politics and his comrades, many of whom had become refugees. That experience, perhaps more than anything else, has been the most important education I have ever had. My dad, as well as being a loving father, was also one of my best teachers, and my hero.

This thesis is dedicated to his memory. ! 9! THESIS INTRODUCTION The Problem This thesis arose out of a question that occurred to me when I began to study refugee law at undergraduate and then again at graduate level: what has caused the place of the refugee in everyday discourse to fall so low in recent years? The standard answer provided by academics and activists has been framed as one of a gradual diminution of the legal rights and protections afforded the refugee. There was, it is claimed, a Golden Age of refugee protection inaugurated by the 1951 Refugee Convention1 and the 1967 Protocol2, and lasting until the 1980s.3 Over this period the Convention set in place an evolving system of international and domestic law that offered increased protection and legal rights for refugees. However, so this narrative continues, over the last 20 years refugees have had their rights to material support and legal representation increasingly restricted.

In addition, their basic civil rights have been infringed as a result of the increased use of administrative detention and deportation. Further, the growing securitisation of asylum policy at both the UK and EU level has !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1 Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, 189. 2 Protocol Relating to the Status of Refugees, 31 January 1967, United Nations, Treaty Series, 606. 3 Shami Chakrabarti, ‘Rights and Rhetoric: The Politics of Asylum and Human Rights Culture in the United Kingdom’ (2005) 32 Journal of Law and Society 131; Andrew I Schoenholtz and Hamutal Bernstein, ‘Improving Immigration Adjudications Through Competent Counsel’ (2008) 21 Georgetown Journal of Legal Ethics 55; Danièle Joly, ‘A new asylum regime in Europe’ in Frances Nicholson and Patrick Twomey (eds), Refugee Rights and Realities: Evolving International Concepts and Regimes (Cambridge University 1999); Frances Webber, Borderline Justice: The Fight for Refugee and Migrant Rights (Pluto 2012).

! 10! been a mechanism for legitimising this stripping away of legal rights.4 In short, the failure has been one of a weakening of the law governing the protection of refugees.5 Yet there are two key problems with this narrative.