Law, Migration, and Human Mobility: Mobile Law

Full text

Law, Migration, and Human Mobility
This book analyses the multifaceted ways law operates in the context of human
mobility, as well as the ways in which human mobility affects law.
Migration law is conventionally understood as a tool to regulate human move-
ment across borders, and to define the rights and limits related to this movement.
But drawing upon the emergence and development of the discipline of mobility stu-
dies, this book pushes the idea of migration law towards a more general concept of
mobility that encompass the various processes, effects, and consequences of move-
ment in a globalized world. In this respect, the book pursues a shift in perspective on
how law is understood. Drawing on the concepts of ‘kinology’ and ‘kinopolitics’
developed by Thomas Nail as well as ‘mobility justice’ developed by Mimi Sheller,
the book considers movement and motion as a constructive force behind political
and social systems; and hence stability that needs to be explained and justified.
Tracing the processes through which static forms, such as state, citizenship, or
border, are constructed and how they partake in production of differential mobility,
the book challenges the conventional understanding of migration law. More
specifically, and in revealing its contingent and unstable nature, the book
reveals how human mobility is itself constitutive of law.
This interdisciplinary book will appeal to those working in the areas of migration
and refugee law, citizenship studies, mobility studies, legal theory, and sociolegal
studies.
Magdalena Kmak is Professor of Public International Law, with a specialization
in Migration and Minority Research, at Åbo Akademi University, Finland.

Law, Migration, and
Human Mobility
Mobile Law
Magdalena Kmak

First published 2024
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British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library
ISBN: 978-1-032-18524-8 (hbk)
ISBN: 978-1-032-18525-5 (pbk)
ISBN: 978-1-003-25496-6 (ebk)
DOI: 10.4324/9781003254966
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Contents
About the Author vi
List of Abbreviations vii
Acknowledgments viii
Introduction 1
1 Mobility as a quality of law 21
2 Mobility as a right 47
3 Mobility as a violation of law 71
4 Mobility as a resistance to law 100
5 Mobility as a method of legal knowledge production 132
Conclusions 160
Bibliography 169
Index 189

About the Author
Magdalena Kmak is a Professor of Public International Law, with a specialization
in Migration and Minority Research at Åbo Akademi University (Finland). She
has received her PhD from the Institute of Law Studies, Polish Academy of
Sciences, and the title of Docent in law and globalization from the University of
Helsinki (Finland). She is a PI and Consortium Director in the project Diversity,
Trust, and Two-Way Integration (Mobile Futures) funded by the Strategic
Research Council established within the Academy of Finland (2021–2027) and
an affiliated researcher at the Centre of Excellence in Law, Identity and the
European Narratives at the University of Helsinki. Magdalena’s research inter-
ests encompass law and mobility, new minorities, exile studies and history of
migration, public international law, human rights and International and
European refugee and migration law. Magdalena is also co-founder of the
Nordic Network on Climate Related Displacement and Mobility.

List of Abbreviations
CERD International Convention on the Elimination of All Forms of
Racial Discrimination
CJEU Court of Justice of the European Union
ECHR European Convention on Human Rights
ECtHR European Court of Human Rights
EU European Union
ICCPR International Covenant on Civil and Political Rights
ISIS Islamic State of Iraq and Syria
SOGI Sexual Orientation and Gender Identity
UDHR Universal Declaration of Human Rights
UN United Nations
USA United States of America

Acknowledgments
This book has been long in the making. It is a result of many years of my
practical and theoretical work as a lawyer and legal researcher that fuelled a
long-standing and deep frustration towards the limits of human rights law in
safeguarding the rights of people with migrant and refugee background and
experience, in Poland, UK, and Finland. The thinking process behind this book
was akin to the peeling of the layers of my own ideas and preconceptions of
how law is and should function in society. The ongoing process of returning to
and rethinking my earlier work through new theoretical lenses as well as fol-
lowing new, exciting developments in migration and exile studies has helped me
to understand and accept law as a profoundly imperfect mechanism for eman-
cipation. The concept of mobile law is therefore a coping mechanism. Through
this concept I have put flux, movement, and mobility at the centre of my
research in law. I believe that such a methodological perspective of mobility and
mobility justice opens up a space of contestation. It destabilizes foundations of
contemporary migration law, rooted in the nation-states and borders. Destabi-
lizing legal concepts such as a nation-state, citizenship, refugeeness, and migra-
tion, allows an abandoning of the static perspective of law as a tool of the state,
and highlights the gap between law and practice as a space of movement.
Two events have particularly contributed to thinking about and writing this
book. The first was the (failed) application for funding for research on Mobile
Law: Law, Dangerousness and Mobility in Europe, together with Aleksandra
Gliszczyn
´ska-Grabias and Witold Klaus from the Institute of Law Studies at the
Polish Academy of Sciences, Anne Alvesalo-Kuusi from the University of
Turku, and Maartje van der Woude from Leiden University. I am very grateful
to them for our fruitful discussions and brainstorming both on the project idea
but also at many other occasions. Second was a visiting fellowship at the Center
for the Study of Law and Society at the Berkeley School of Law in May–July
2019 that provided me with the time and intellectual space for delving more
deeply into the topic and developing the idea of the book. Special thanks go to
my host Tony Platt and to Jonathan Simon for inviting me to present the
Mobile Law idea at the Carceral Studies Working Group and for encouraging
me to continue working on it further.

Acknowledgments ix
I also want to thank the entire Centre of Excellence in Law, Identity and the
European Narratives (EuroStorie) and the Centre for European Studies at the
University of Helsinki, as well as the colleagues at the Institute for Human
Rights at Åbo Akademi University and in the Diversity, Trust, and Two-Way
Integration (Mobile Futures) project – my former and current intellectual
homes – for their understanding, support, and collaboration during the book
writing process.
Absolutely special thanks go to Dionysia Kang who has not only proofread
the manuscript but also has given invaluable comments on the book’s content.
Special thanks also go to Iida Silfverhuth, Jonna Rajala, and Laura-Helena
Suominen who have helped me with the research at the various stages of the
book writing.
I would also like to thank all the colleagues who listened to and commented
on my presentations of various chapters of this book, at the Migration Law
Research Centre and the Poznan Human Rights Centre, both at the Institute of
Law Studies, Polish Academy of Sciences, as well as the Centre of Migration
Research at the University of Warsaw.
I would like to thank Colin Perrin, Ajanta Bhattacharjee, and Naomi Round
Cahalin at Routledge, as well as the anonymous reviewer for their valuable
feedback on this volume.
Last but not least, greatest thanks go as always to Antti Sadinmaa. I am also
grateful to Runsku for providing (sometimes frustrating yet needed) structure
and exercise during the writing process.
Funding
The project has been supported partially by the Centre of Excellence in Law,
Identity and the European Narratives, University of Helsinki, funded by the
Academy of Finland (funding decision number 312431); and partially by the
project Mobile Futures: Diversity, Trust, and Two-Way Integration, Åbo Aka-
demi, funded by the Strategic Research Council (SRC) established within the
Academy of Finland (funding decision number 345154). This work was partially
made available open access with support from the Gösta Branders research
fund, Åbo Akademi University Foundation (ÅAU APC/BPC pool).

Introduction
Introduction
At the time of writing, the landscape of migration and mobility in Europe has
been affected by millions of people leaving Ukraine as a result of the full-scale
Russian invasion on 24 February 2022. They crossed borders to Poland, Slova-
kia, Romania, or Hungary and continued to other EU countries, in many cases
exceeding the numbers of asylum seekers from the so-called Long Summer of
Migration in 2015. Persons from Ukraine fleeing the war have been mostly met
with accommodating measures,
1
from the first-ever deployment of the Tem-
porary Protection Directive by the Council of the European Union
2
to the right
to bring to the EU territory domestic animals without necessary documentation
and vaccinations.
3
The protection to persons in refugee situation from Ukraine
has been happening at the same time as the blatant violations of rights of
racialized migrants seeking asylum at the Polish-Belarussian border and
1 See however reports on racism and discrimination in the treatment of people fleeing
the war, for instance: ‘UNHCR Chief Condemns “Discrimination, Violence and
Racism” against Some Fleeing Ukraine’, UN News, 21 March 2022, https://news.un.
org/en/story/2022/03/1114282, (accessed 17.12.2022); Elz
.bieta Mirga-Wójtowicz,
Joanna Talewicz, and Małgorzata Kołaczek, ‘Prawa Człowieka, Potrzeby i Dyskry-
minacja - Sytuacja Romskich Uchodz
´ców z Ukrainy w Polsce: Sprawozdanie z
Działalnos
´ci Badawczej i Interwencyjnej’ (Zentralrat Deutscher Sinti und Roma /
Centralna Rada Niemieckich Sinti i Romów, 2022); Meltem Ineli-Ciger and Sergio
Carrera, eds., EU Responses to the Large-Scale Refugee Displacement from Ukraine:
An Analysis on the Temporary Protection Directive and Its Implications for the
Future EU Asylum Policy (European University Institute, 2023).
2 Council of the EU, ‘Council Directive 2001/55/EC of 20 July 2001 on Minimum
Standards for Giving Temporary Protection in the Event of a Mass Influx of Dis-
placed Persons and on Measures Promoting a Balance of Efforts between Member
States in Receiving Such Persons and Bearing the Consequences Thereof’, Pub. L.
No. 2001/55/EC (2021).
3 Gerardo Fortuna, ‘EU Relaxes Entry Paperwork for Pets Travelling with Ukrainian
Refugees’, Euractive.Com, 27 February 2022, https://www.euractiv.com/section/hea
lth-consumers/news/eu-relaxes-entry-paperwork-for-pets-travelling-with-ukrainian-
refugees/, (accessed 18.12.2022).
DOI: 10.4324/9781003254966-1
This Chapter has been made available under a CC-BY-NC-ND 4.0 license.

2 Introduction
continuous violations of rights of people arriving at the EU Southern border,
exemplifying “persistence of systemic unequal solidarity in the EU and Member
States’ asylum systems [author’s emphasis].”
4
Assessing any possible future developments or shifts in approaches to
migration and mobility within the EU and Europe while the war is still ongoing
comes with a danger of a lack of objectivity, simplification, and wishful think-
ing. The questions concern the long-term effect of the Temporary Protection
Directive and its affecting migration law and legal practice. For instance, has it
been deployed with the expectation that persons in a refugee situation from
Ukraine will soon leave to return home? Would the refugee status or subsidiary
protection have given the person fleeing the war on Ukraine better status and
longer-lasting protection? And most importantly, will there be a general change
in the legal interpretation of the right to seek asylum that would benefit all
people seeking protection, also those coming from the global South?
5
Instead of providing answers to these questions or giving any other norma-
tive pronouncements concerning law as it ought to be, this book contextualizes
them through the lens of mobility
6
and mobility justice.
7
Such perspective
allows for an understanding of law’s role in regulating as well as producing
differential mobility,
8
such as mobility of different groups of people crossing
Eastern and Southern EU borders. To be sure, the shift from normative rights-
based approach to mobility justice perspective reveals ways in which power
relations play out in the movement of people and how such institutions as
borders and citizenship in combination with social constructs such as race,
gender, or class result in unequal mobility.
9
Understanding differential mobility
as a product of law is only one outcome of the shift from migration to mobility
justice. Another one is the ability to understand mobility as counterpower,
10
to
emphasize the agency of mobile actors, and to study their resistance against law
regulating their movement unequally. Finally, the mobility lens makes visible
the fact that law is not only affecting but also affected by mobility and that
mobility is a quality of law itself.
4 Ineli-Ciger and Carrera, EU Responses to the Large-Scale Refugee Displacement
from Ukraine.
5 For the analysis of the early EU responses see Ineli-Ciger and Carrera, EU Responses
to the Large-Scale Refugee Displacement from Ukraine.
6 Thomas Nail, Being and Motion (New York, NY: Oxford University Press, USA,
2019).
7 Mimi Sheller, Mobility Justice: The Politics of Movement in the Age of Extremes
(London; Brooklyn, NY: Verso, 2018).
8 Mimi Sheller, Mobility Justice: The Politics of Movement in the Age of Extremes
(London; Brooklyn, NY: Verso, 2018), 55 (iBooks).
9 On intersectional perspective on human mobility see also Floya Anthias, Translo-
cational Belongings: Intersectional Dilemmas and Social Inequalities, 1st ed., Rou-
tledge Research in Race and Ethnicity (Oxford: New York: Routledge, 2020).
10 Thomas Nail, The Figure of the Migrant, (Stanford, California: Stanford University
Press, 2015), 182.

Introduction 3
This book is neither about migration and mobility, nor law strictly, but
concerns the multifaceted relationship between law and (human) mobility. The
main argument of the book is that the relationship between law and mobility
encompasses not only dominant rules and practices regulating human motion
and mobility, but also mobility playing the constitutive role for law. What this
means is that mobility affects the purpose and the scope of law but is also
imprinted in its epistemological and ontological qualities – what Ben Golder
and Peter Fitzpatrick describe as “mobile and contingent truth” of law.
11
I
understand the relationship between law and mobility as multifaceted and
encompassing (1) mobility as law’s ontological quality characterized by perma-
nent instability of legal concepts;
12
(2) meetings of different laws and tensions
between various competing interests related to mobility and migration, both in
law’s hierarchical structure, at its various levels of implementation, as well as in
its relations with other forms of law;
13
(3) laws and rules that become mobile as
they are carried or employed by mobile actors themselves;
14
(4) the way law is
identified, felt, experienced, and resisted by those on the move;
15
and (5)
mobility as a method of studying law and creating legal knowledge.
16
11 Ben Golder and Peter Fitzpatrick, Foucault’s Law (Abingdon, Oxon; New York,
NY: Routledge-Cavendish, 2009), 130.
12 On indeterminacy and movement of law see for instance Peter Fitzpatrick, Law as
Resistance: Modernism, Imperialism, Legalism (Abingdon, Oxon; New York, NY:
Routledge, 2008); Golder and Fitzpatrick, Foucault’s Law; Olivia Barr, A Jur-
isprudence of Movement: Common Law, Walking, Unsettling Place (Abingdon,
Oxon; New York, NY: Routledge, 2016); Alexandre Lefebvre, The Image of Law:
Deleuze, Bergson, Spinoza, Cultural Memory in the Present (Stanford, Calif: Stan-
ford University Press, 2009).
13 Thomas Nail, ‘Figures of the Migrant: Structure and Resistance’, Cultural Dynamics
30, no. 3 (2018);
Thomas Nail, Theory of the Border (Oxford; New York: Oxford University
Press, 2016); Barr, A Jurisprudence of Movement, 2016.
14 Franz von Benda-Beckmann, Keebet von Benda-Beckmann, and Anne Griffiths (eds.),
Mobile People, Mobile Law: Expanding Legal Relations in a Contracting World
(Abingdon, Oxon; New York, NY: Routledge, 2005); Barr, A Jurisprudence of
Movement, 2016.
15 Melanie G. Wiber, ‘Mobile Law and Globalization: Epistemic Communities versus
Community-Based Innovation in the Fisheries Sector,’ in Mobile People, Mobile
Law (Abingdon, Oxon; New York, NY: Routledge, 2017), 143–164; Günter Bier-
brauer, ‘Toward an Understanding of Legal Culture: Variations in Individualism
and Collectivism between Kurds, Lebanese, and Germans’, Law & Society Review
28, no. 2 (1994); Paolo Boccagni and Loretta Baldassar, ‘Emotions on the Move:
Mapping the Emergent Field of Emotion and Migration’, Emotion, Space and
Society 16 (August 2015): 73–80; Elena Fiddian-Qasmiyeh, Refuge in a Moving
World: Tracing Refugee and Migrant Journeys across Disciplines (London: UCL
Press, 2020).
16 Kaius Tuori, Empire of Law: Nazi Germany, Exile Scholars and the Battle for the
Future of Europe (Cambridge: Cambridge University Press, 2020); Aslı Vatansever,
At the Margins of Academia: Exile, Precariousness, and Subjectivity (Brill, 2020).

4 Introduction
This project on law and mobility is a result of my long-standing and deep
frustration towards the gap between law and practice within the field of
migration law, and my inability – first as a migration lawyer and then as a legal
expert and researcher – to effectively put legal safeguards, in particular human
rights, at work. While the existence of the gap between the theory and practice
of law is part of the reality of modern law,
17
one needs, I believe, to find one’s
ways to make peace with the gap as an inherent feature of law. My own
approach is to find ways of understanding the gap as a space of resistance and
emancipatory change. Such approach has oriented this research and led me
towards putting flux, movement, and mobility at the centre of analysis. Such a
methodological perspective of mobility opens up a space of contestation. It
destabilizes the main grounds of contemporary migration law, rooted in state-
nation-community dynamics.
18
Destabilising legal concepts such as nation-state,
citizenship, refugeeness and migration, allows an abandoning of the static per-
spective of law as a tool of the state, and highlights the gap between law and
practice as a space of movement. Through such a perspective, law can be seen
as inherently unstable; therefore, susceptible to changes. At the same time, it is
important to understand that law’s mobility, as I will explore later in this book,
does not in itself guarantee emancipation. Law moves, but the directions and
implications of this movement depend on many elements that are rooted in
societal organization and societal interests and desires.
19
Mobility turn
The increased focus of research on mobility and its multifaceted implications
has been observable from early 2000 in the so-called mobility turn when social
sciences responded to the “complex intersections of ‘endless regimes of flow’,
which move at different speeds, scales, and viscosities.”
20
This is understood as
a context of increased mobility of various entities including humans, ideas,
products. According to Mimi Sheller and John Urry, “the new mobilities para-
digm must be brought to bear not only on questions of globalization and the
deterritorialization of nation-states, identities, and belonging, but more funda-
mentally on questions of what are the appropriate subjects and objects of social
17 Reza Banakar, Normativity in Legal Sociology: Methodological Reflections on Law
and Regulation in Late Modernity (New York, Dordrecht, London: Springer, 2015),
54.
18 Prem Kuman Rajaram, ‘Refugee and Migrant Knowledge as Historical Narratives’,
in Refugees and Knowledge Production: Europe’s Past and Present, ed. Magdalena
Kmak and Heta Björklund (Abingdon, Oxon: Routledge, 2022).
19 Lefebvre, The Image of Law, 97.
20 Mimi Sheller and John Urry, ‘The New Mobilities Paradigm’, Environment and
Planning A: Economy and Space 38, no. 2 (February 2006): 207–226, 213; see also
Peter Adey et al., ed., The Routledge Handbook of Mobilities (Abingdon, Oxon:
Routledge, 2014).

Introduction 5
inquiry.
21
”Mobility research is in turn closely related to the study of globali-
zation and the unequal relationship between the movement of ideas, finance,
and trade, versus the movement of people.
Today, research on law and globalization encompass not only the impact on law
by different global actors but also the mobility of law: “flows and exchanges of norms
and legal discourses across national borders” that impact the adoption, and trans-
formation of legal norms at local, national, transnational, and international levels.
22
Besides, law and globalization contribute to the coexistence of national, regional, or
global legal regimes that posit the state as one of several sources of law.
23
Unlike the
study of globalization, however, the study of mobility considers movement and cir-
culation as the ontological and epistemological condition of our societies;
24
hence,
simultaneously turning attention towards individual mobilities and also correspond-
ing immobilities. Recent research shows that mobility can be central to ones’ identity
and may constitute a way of life.
25
At the same time, increased mobilities of some are
accompanied by increased immobilities of others due to, among others, their citizen-
ship, gender, religion, as well as economic and legal status.
26
As part and parcel of
these developments, law is simultaneously enhancing and speeding up, easing,
limiting, and even stopping mobility completely. This has been most recently
shown by the legal measures adopted to prevent the spread of COVID-19 virus on
the one hand and the first-time application of temporary protection in the case of
persons in a refugee situation from Ukraine on the other. The former has sig-
nificantly limited mobility and the latter has enhanced it. It is, therefore, important
to study such multifaceted relationship of law and mobility (and corresponding
immobility) in political, societal, cultural, and economic spheres.
This book approaches critically the mobility turn in research as linked to
globalization and the portrayal of mobility as synonymous to freedom. Fol-
lowing the work of Nicolas De Genova, Martina Tazzioli, and others, I
approach mobility (together with movement and motion) as minor keywords –
understood as concepts and categories that are widely used but require further
critical theorization of their meaning and role.
27
For the authors, these minor
21 Sheller and Urry, ‘The New Mobilities Paradigm’, 212.
22 Julieta Lemaitre, ‘Law and Globalism: Law without the State as Law without Vio-
lence’,in The Handbook of Law and Society, ed. Austin Sarat and Patricia Ewick
(Hoboken, NJ: John Wiley & Sons, Inc, 2015), 436.
23 Lemaitre, 438.
24 Sheller, Mobility Justice, 50, 98 (iBooks).
25 For mobility as a European way of life see Tuuli Lähdesmäki et al., Europe from
below: Notions of Europe and the European among Participants in EU Cultural
Initiatives, European Studies, vol. 38 (Leiden; Boston: Brill, 2021).
26 See for instance Dimitry Kochenov, Citizenship, The MIT Press Essential Knowl-
edge Series (Cambridge, Massachusetts; London, UK: The MIT Press, 2019), 127–
128.
27 Nicolas De Genova et al., ‘Minor Keywords of Political Theory: Migration as a
Critical Standpoint. A Collaborative Project of Collective Writing’, Environment
and Planning C: Politics and Space, 9 March 2021, 2.

6 Introduction
keywords are crucial for understanding contemporary social and political phe-
nomena stemming from the global-as-postcolonial fact of migration.
28
From
this critical perspective, mobility must be disentangled from freedom – the idea
that has been underpinning the liberal thought and constituting the basis for the
European liberal subjectivity
29
– and be understood as a technique for govern-
ing different forms of movement. The use of mobility as a minor keyword or a
lens – through which different forms of governance of human movement are
being analysed – reveals not only the inherent instability of all societal forms of
ordering but also the power structure underlying practices and policies related
to movement
30
that are coded in law. It also reveals a characteristic of law as a
phenomenon that affects and is being affected by mobility.
The aim of the book
Despite the significant development in the field of mobility studies and its
expansion within other fields such as sociology and geography, the multifaceted
relationship between human mobility and law has not yet been comprehensively
approached and analysed within the broadly understood discipline of law. To
be sure, the amount of contemporary academic writing on migration has pro-
liferated to an extent that is sometimes difficult to follow, engage with and
contribute to the different strands of migration-related research. Similarly, the
research on international, transnational, or national migration and refugee law
is well established, and its scope has grown significantly over the last decades,
31
following the increase in global migration movements in our “age of migra-
tion.”
32
This concerns not only doctrinal legal research but also other legal
disciplines such as critical legal studies, sociology, and anthropology of law, or
feminist legal research. There has been, however, a gap in research on the
relationship between law and mobility and the need for such a more compre-
hensive focus has been recognized by the recent legal scholarship. The book
responds to an increasing interest in the movement of law. According to Olivia
Barr, “(…) the relationship between law and movement has shifted from no
relationship, to an unseen and hidden one, to one of destinations, and finally to
28 De Genova et al., 3.
29 De Genova et al., 38; Hagar Kotef, Movement and the Ordering of Freedom: On
Liberal Governances of Mobility, Perverse Modernities (Durham, NC; London:
Duke University Press, 2015).
30 De Genova et al., ‘Minor Keywords of Political Theory’, 37.
31 Anne-Marie Fortier, ‘Migration Studies’,in The Routledge Handbook of Mobilities,
ed. Peter Adey et al. (Abingdon, Oxon; New York, NY: Routledge, 2014). See also
for instance IMISCOE Research hub containing a constantly growing database of
migration research, showing currently 124411 entries: https://www.imiscoe.org/resea
rch/research-hub (accessed 11 August 2022).
32 Stephen Castles and Mark J. Miller, The Age of Migration: International Population
Movements in the Modern World, 4th ed., Rev. & updated (New York: Guilford
Press, 2009).

Introduction 7
one of relentless and constant activity.”
33
Yet, the work on mobile law, that
looks at complexities and interrelations between the regimes of human mobility
and law has not been very extensive.
34
In particular, and surprisingly, the
mobile turn has not yet created a great number of theoretical analysis of the
impact of human migration and movement on law, nor on the movement as an
ontological quality of law.
35
For instance, there is a limited research on law in
journals devoted to mobility studies such as Mobilities or in publications such
as The Routledge Handbook of Mobilities.
36
One of the most seminal publica-
tions, which inspired this book title, is Mobile People, Mobile Law, first pub-
lished in 2005, that takes an anthropological perspective on the functioning of
law in the process of globalization, that is characterized as the increasing
mobility of people, capital, technology, knowledge, and communication.
37
Another important, and more recent, publication is A Jurisprudence of Move-
ment: Common Law, Walking, Unsettling Place, which focuses on movement as
fundamental for the functioning of common law, in particular in the context of
colonial legal inheritance in Australia.
38
Also importantly, Movement and
Ordering of Freedom: On Liberal Governances of Mobility,
39
traces construc-
tion of liberal subjectivity in Europe as rooted in regulated mobility. Spatial
Justice: Body, Lawscape, Atmosphere in turn discusses the conflict arising when
different bodies move propelled by a desire to “occupy the same space at the
same time [author’s emphasis].”
40
Another recently published collective volume,
Refuge in a Moving World: Tracing Refugee and Migrant Journeys across
Disciplines,
41
deals with questions of movement and place in the context of
migration. It focuses on both the concepts of “refuge”and a “moving world”–
shifting from dominant and static concepts such as a “refugee”–and turning to
the processes of mobility and migration “engaging with processes and experi-
ences that can and do ‘move us’.”
42
Finally, within a field of International
Migration Law, the 2017 AJIL Symposium on Framing Global Migration Law
33 Olivia Barr, A Jurisprudence of Movement, 2016, 145.
34 see however recently initiated University of Michigan Journal of Law and Mobility
focusing on the relationship between transportation and mobility technologies as
well as automated and connected mobility systems.
35 See however Lefebvre, The Image of Law; Fitzpatrick, Law as Resistance: Modern-
ism, Imperialism, Legalism; Golder and Fitzpatrick, Foucault’s Law. See however
Center of Excellence for Global Mobility Law (MOBILE) at the Faculty of Law,
University of Copenhagen, established in 2023.
36 Adey et al., The Routledge Handbook of Mobilities.
37 Von Benda-Beckmann, von Benda-Beckmann, and Griffiths, Mobile People, Mobile Law.
38 Barr, A Jurisprudence of Movement, 2016.
39 Kotef, Movement and the Ordering of Freedom.
40 Andreas Philippopoulos-Mihalopoulos, Spatial Justice: Body, Lawscape, Atmo-
sphere, (Abingdon, Oxon: Routledge, 2015), 3.
41 Fiddian-Qasmiyeh, Refuge in a Moving World.
42 Fiddian-Qasmiyeh, 6; See also Paolo Boccagni and Loretta Baldassar, ‘Emotions on
the Move: Mapping the Emergent Field of Emotion and Migration’, Emotion, Space
and Society 16 (August 2015): 73–80.

8 Introduction
is an attempt to conceptualize the Global Migration Law as a discipline. The
Global Migration Law, as understood by the editors and authors, encompasses
a multiplicity of legal measures at different levels of law, including interna-
tional, regional, bilateral, transnational, national and subnational, state, and
non-state.
43
Notably, the symposium’s interventions underline the need for a
shift in the understanding of global migration law by moving the emphasis
from migration to mobility and i.e. from a state-centric approach towards a
human mobility-centric.
44
The aim of the book is to fill in the gap in research on the relationship
between law and mobility and understand the multifaceted ways in which law
and mobility function together. The point of departure for this task is the
migration law, traditionally understood as a tool to regulate human movement
across borders and territories and to define the rights and limits related to such
movement. With the recently proposed theory of kinopolitics,
45
and the emer-
gence and development of mobility studies as a discipline,
46
a broader perspec-
tive on the relationship between law and human mobility is needed. It calls for
a perspective that shifts the focus from the narrow subject of migration towards
the concept of mobility encompassing the processes, effects, and consequences
of movement in a globalized world.
47
The book builds on my earlier research focusing on processes of (im)mobi-
lity, marginalization, or discrimination but also knowledge production through
law.
48
Adopting comprehensively a lens of mobility and mobility justice allows
me to relook at these practices anew and understand them better. As a result,
movement, mobility, and a figure of a migrant become the centre of analysis,
and a static perspective on law as a sovereign product of a nation state is
abandoned. Mobility can also provide a new method of studying law, including
the development of legal concepts or changes in legal practices through
43 Jaya Ramji-Nogales and Peter J. Spiro, ‘Introduction to Symposium on Framing
Global Migration Law’, AJIL Unbound 111 (2017): 1–2.
44 T. Alexander Aleinikoff, ‘Toward a Global System of Human Mobility: Three
Thoughts’, AJIL Unbound 111 (2017): 24–28, 25.
45 Nail, Being and Motion; Nail, The Figure of the Migrant.
46 Sheller and Urry, ‘The New Mobilities Paradigm’.
47 Adey et al. ‘Introduction’ in the The Routledge Handbook of Mobilities.
48 Magdalena Kmak, ‘Between Citizens and Bogus Asylum Seekers: Management of
Migration in the EU through the Technology of Morality’, Social Identities 21, no. 4
(2015): 395–409; Magdalena Kmak, ‘Migration Law as a State (Re)Producing
Mechanism’,in Migration, Identity, and Belonging: Defining Borders and Bound-
aries of the Homeland (Routledge, 2020); Magdalena Kmak, ‘The Impact of Exile
on Law and Legal Science 1934–1964’,in Roman Law and The Idea of Europe
(Bloomsbury Academic, 2019); Dorota Gozdecka and Magdalena Kmak, eds.,
Europe at the Edge of Pluralism 2015 (Cambridge; Antwerp; Portland: Intersentia
Ltd, 2015); Dorota A. Gozdecka, Selen A. Ercan, and Magdalena Kmak, ‘From
Multiculturalism to Post-Multiculturalism: Trends and Paradoxes’, Journal of
Sociology 50, no. 1 (1 March 2014): 51–64; Dorota A. Gozdecka and Magdalena
Kmak, ‘Law and the Other’, No Foundations Journal, no. 15 (2018).

Introduction 9
voluntary and forced mobility of legal scholars
49
and others who experience,
think, talk, and write about law.
50
Methodologically, the book is inter-
disciplinary and uses tools from migration and refugee law, migration, citizen-
ship, and exile studies, border studies and mobility studies, legal philosophy
and theory, legal sociology, and legal ethnography as well as legal history. The
law in this book does not refer only to the black-letter law or jurisprudence,
but also to writings of legal scholars, soft law, and legal education. In concrete
terms, the book turns its focus to (1) studying legal regulations and legal insti-
tutions such as nation-state or citizenship as fundamentally unstable and in
constant process of construction and deconstruction; (2) putting particular
attention on existing power-relations between different laws and regulations; (3)
studying not only the movement but also corresponding (im)mobilities that are
generated by law; and (4) studying law as known to or experienced by mobile
persons themselves. The book’s focus is limited to international and transna-
tional mobility that requires crossing international borders. I acknowledge that
differential mobility of people that is intimately linked with the ways that law is
mobile do take place within territories of states, cities, neighbourhoods, or vil-
lages,
51
but they remain outside the scope of the book. As a researcher located
in the EU and specialising in the EU migration regime, I limit my focus to laws
and practices of Europe and the EU with additional case-studies from other
regions of the global North, such as the USA or Australia. To be sure, the
exclusionary migration regime I discuss in this book is the regime of the global
North, representing the interests and aimed at benefitting the global North
itself. Similarly, the modes of contestation and resistance as well as knowledges
and experiences concern the migration regime in the global North and are
aimed at problematizing the interests of this regime and revealing its dominating
and exclusionary character.
52
Theoretical framework
Theoretically the book departs from the concepts of kinopolitics and kinology,
developed by Thomas Nail. Kinology understands the movement and motion as
a primary ontological condition and constructive force behind political and
49 See for instance Tuori, Empire of Law: Nazi Germany, Exile Scholars and the Battle
for the Future of Europe.
50 For the embodied experience of migration regime see for instance Behrouz Boochani,
Omid Tofighian, and Richard Flanagan, No Friend but the Mountains: Writing
from Manus Prison (Toronto, Ontario: House of Anansi Press Inc, 2019).
51 Sheller, Mobility Justice.
52 See for instance Thomas Spijkerboer, ‘The Geopolitics of Knowledge Production in
International Migration Law’,in Research Handbook on the Law and Politics of
Migration, by Catherine Dauvergne (Edward Elgar Publishing, 2021): 172–188;
Achille Mbembe, ‘The Idea of a Borderless World’, Africa Is a Country, 2018, http
s://africasacountry.com/2018/11/the-idea-of-a-borderless-world (accessed 18.12.2022).

10 Introduction
social systems. From this perspective, mobility is primary and stability is sec-
ondary and something that needs to be explained and justified.
53
As Nail writes
“[e]ither we begin with discrete and static being and have to say that real
motion is an illusion, or we begin with flow and are able to explain stasis as
relative or folded forms of movement.”
54
In the context of this book such
approach implies that forms traditionally considered as static – such as state,
citizenship, or border – have an unstable nature. More concretely, Nail explains
in Being and Motion, when describing a thing, a being, or an entity, one should
not be asking questions such as “what is x?” as these questions try to determine
the essence of the thing x. Because beings do not have essence and they are
nothing else but movements, the questions asked should be instead: “What can
it do? How can it move?(…) To describe a thing is simply to identify its kinetic
capacities and the field of circulation that orders it [emphasis mine].”
55
In other
words, beings are not stable and can be characterized as a continuous mod-
ification in time. They only appear stable in order to be perceived as a thing,
not a progress.
56
On a societal level the lens of kinopolitics helps to understand
societies as “regimes of motion” that expand their territorial, political, eco-
nomic, and juridical power through different forms of exclusion.
57
I use this
approach to analyse law but also such legal categories as the nation-state, citi-
zenship, or a foreigner. I combine this approach with the theory of mobility
justice developed by Mimi Sheller,
58
that “focuses attention on the politics of
unequal capabilities for movement, as well as on unequal rights to stay or to
dwell in a place.”
59
From this perspective the questions posed by Nail – how
can a thing move and what can it do through this movement – requires shifting
attention from nation-state, citizenship, and borders towards unequal mobility
that is produced by these institutions in order to be perceived as stable.
The starting point for analysis of unequal mobility is the distinction between
orderly and disorderly mobility, a legacy of modernity/coloniality.
60
In her book
Asylum after Empire, Lucy Mayblin shows how the dialectical relationship
between modernity and coloniality has constructed the relationship between
modern law and modern subject and became the backbone of the contemporary
nation-state system. Modern/colonial nation-state is based on juridico-political
concept of citizenship that represents the order of universalism inherently based
53 Nail, Being and Motion; Sheller, Mobility Justice
54 Nail, 57.
55 Nail, 124.
56 Alexandre Lefebvre, The Image of Law: Deleuze, Bergson, Spinoza, Cultural
Memory in the Present (Stanford, Calif: Stanford University Press, 2009), 94.
57 Nail, The Figure of the Migrant, 24.
58 Sheller, Mobility Justice.
59 Sheller, 31 (iBooks).
60 Lucy Mayblin, Asylum after Empire: Colonial Legacies in the Politics of Asylum
Seeking, Kilombo: International Relations and Colonial Questions (London; New
York: Rowman & Littlefield International, 2017), 30.

Introduction 11
on differentiation between the colonizers and the colonized and on subjugation
of colonial or post-colonial subjects.
61
The only mobility that is accepted within
this framework of citizenship is orderly mobility. As Hagar Kotef argues in
Movement and Ordering of Freedom orderly mobility is an immanent feature
of liberal subjectivity of the modern citizen and the condition for belonging in
the modern community of nation-states.
62
As Kotef shows, historically, the
liberal subject could not have been separated from its corporeal dimension – the
capacity for movement – which together with other conditions, such as mate-
rial, racial, geographic, and gender, linked freedom to the movement of some
(free, white, male) subjects.
63
John Stuart Mill considered such capacity for
movement as not only constitutive of these individual subjects but more broadly
for Europe as such, calling it “a site of motion.”
64
In Europe, the perpetual and
non-homogenous movements of people facilitated and contributed to a homo-
genous movement of the society as a whole that has been equalled with pro-
gress. At the same time, the rest of the world remains stationary.
65
On an
individual level, mobility became, therefore, an ordered or stable movement,
leading to the formation of a liberal subject as epitomising an ordered free-
dom.
66
The liberal modern citizens have been defined by their movement in an
orderly manner as regulated by law. At the same time, other(ed) subjects,
“African, indigenous Americans, or Asians, as well as women or paupers, kept
appearing in the texts of liberal thinkers as either too stagnant or too mobile,”
thus, not fitting into the European liberal subjectivity.
67
Similarly, Thomas Nail
shows the intersectional aspect of disorderly mobility through the connection
between early migration and anti-vagabond laws in Europe.
68
Disorderly
mobility is, therefore, incompatible with modern liberal subjectivity and is a
characteristic feature of coloniality. Indeed, such a perspective is also very much
visible today, where the Western citizen is generally the most mobile, but their
mobility is regulated and often related to stability and sedentarism,
69
and is
constitutive of liberal communities as nations and states.
70
Orderly migration becomes the only form of movement that the modern law,
linked to citizenship, can accept. Disorderly, irregularized mobility not only
disobeys law (regional, national, etc), but also disobeys the national order of
things as people remain, without permission, outside of their assigned place in
61 Ranabir Samaddar, The Postcolonial Age of Migration (Abingdon, Oxon; New
York: Routledge, 2020), 8.
62 Kotef, Movement and the Ordering of Freedom,5.
63 Kotef, 5.
64 Kotef, 7.
65 Kotef, 7.
66 Kotef, 9.
67 Kotef, 9.
68 Nail, The Figure of the Migrant, 206.
69 Kotef, 10.
70 Catherine Dauvergne, Making People Illegal: What Globalization Means for
Migration and Law (Cambridge University Press, 2008), 44.

12 Introduction
the world.
71
This is enshrined in many contemporary legal documents that only
accept orderly and regular migration. For instance, the Global Compact for
Safe, Orderly and Regular Migration of 2016 aims to “facilitate safe, orderly
and regular migration,” that is understood as taking place in a well-informed,
planned, and consensual manner. At the same time, it aims to reduce “the
incidence and negative impact of irregular migration.” Therefore, orderly, and
regular migration is the right form of mobility that needs to be facilitated, in
this context, through the soft legal measures of the Global Compact.
72
At the
same time, mobility that is irregularized and considered disorderly is fought
against, and securitized and criminalized migrants and those seeking asylum are
systematically stripped of rights. Whereas in the case of orderly mobility,
human rights operate smoothly, in the case of disorderly mobility they do not
apply or apply only minimally. This has been recently shown, for instance, in
judgments N.D. and N.T. v. Spain
73
and A.A. and Others v. North Macedo-
nia
74
by the ECtHR. In these judgments, the ECtHR argued that migrants and
asylum seekers’ own culpable conduct has put them in jeopardy which, there-
fore, excluded them from protection against collective expulsion based on arti-
cle 4 of the Protocol 4 to the ECHR.
75
In other words, instead of human rights
protection being granted based on human dignity, the protection is granted
based on good behaviour understood as orderly mobility. The argument I am
making here does not mean that I am against orderly and support disorderly
migration. I believe that everyone should have an equal opportunity for safe
and orderly mobility. What I am against is the presupposition, based on citi-
zenship, gender, race, or wealth, that some inherently move in disorderly or
orderly fashion. This presupposition not only results in the regulation of the
movement of people as always already orderly or disorderly but also in the legal
construction of their movement in law as such.
76
In this context, I am interested
in how the distinction between orderly and disorderly mobility is enshrined in
the legal acts and documents, and how law and (dis)orderly mobility affect and
orientate one another.
71 William Walters, ‘Deportation, Expulsion, and the International Police of Aliens’,
Citizenship Studies 6, no. 3 (2002): 265–292; Nanda Oudejans, ‘The Right Not to
Have Rights: A New Perspective on Irregular Immigration’, Political Theory 47, no.
4 (August 2019): 447–474.
72 UN General Assembly, ‘Global Compact for Safe, Orderly and Regular Migration’,
Pub. L. No. A/RES/73/195 (2018).
73 N.D. and N.T. v. Spain, No. 8675/15; 8697/15 (European Court of Human Rights 13
February 2020).
74 A.A. and Others v. North Macedonia, No. 55798/16 (European Court of Human
Rights 7 May 2022).
75 N.D. and N.T. v. Spain at 231.
76 Thomas Spijkerboer, ‘The Global Mobility Infrastructure: Reconceptualising the
Externalization of Migration Control’, European Journal of Migration and Law 20,
no. 4 (29 November 2018): 452–469; See also Dauvergne, Making People Illegal.

Introduction 13
I argue that orderly and disorderly mobility is produced and regulated by law
for the purpose of stabilising the nation-state. The operation of the nation-state
machine and the global mobility infrastructure that I discuss in the book reveals
the intimate relationship between law, the processes of global mobility man-
agement, mobility infrastructure, and the position of a nation-state in the glo-
balized world. Thomas Spijkerboer postulates that an understanding of the
contemporary production of orderly (desired) and disorderly (undesired) mobi-
lities requires focusing on a wider set of laws and policies regulating global
human mobility that manifest themselves in the global mobility infrastructure.
77
For Spijkerboer, the development of the global mobility infrastructure has fos-
tered the expansion of human mobility but also allowed using the infrastructure
as a mode of distinction between different forms of movements based on race,
gender, and class. In the case of orderly mobility, visible infrastructure (bio-
documents, digital borders, airports etc.) enhances movement and the ability to
enter from one country to another. Disorderly (colonized, racialized, gendered,
or classed mobility) on the other hand is forced to use the shadow mobility
infrastructure (dinghies, passport copies, tarpaulins, or shipping containers).
78
The latter case is a result of law and infrastructure’s aim to control disorderly
mobility, stop it altogether, or exploit it as labour force.
79
This has been clearly
visible recently in instances such as the closing of the border with Turkey by
Greece in March 2020 or the border with Belarus by Poland in July 2021, both in
violation of international legal obligations. Whereas the Greek move was
appraised by the Head of the European Commission, Ursula van der Leyen as an
act of “shielding Europe,” the pushbacks at the Polish-Belarussian border were
deemed as violating the ECHR in the judgment MK v. Poland.
80
On a larger scale,
the resistance against disorderly mobility is shown also, for instance, in the wall-
building attempts, such as at the EU borders
81
or the border between US and
Mexico, in Australia’s “Pacificsolution,” ongoing externalization of EU migration
policies, or the EU Border Agency Frontex complicity in illegal pushback opera-
tions in the Mediterranean
82
or the UK protection externalization scheme as out-
lined in the agreement with Rwanda. These developments illustrate also a more
general tendency to move law outside the territorial jurisdiction of states, with the
77 Spijkerboer, ‘The Global Mobility Infrastructure’.
78 Spijkerboer, 461.
79 Sandro Mezzadra and Brett Neilson, Border as Method, or, the Multiplication of
Labor, 2013; Samaddar, The Postcolonial Age of Migration 61 and following;
Nadine El-Enany, (B)Ordering Britain: Law, Race and Empire, 2020, 13.
80 M.K. and Others v. Poland, No. 40503/17, 42902/17 and 43643/17 (European Court
of Human Rights 23 July 2020).
81 Agence France-Presse in Helsinki, ‘Finland Passes Law to Bolster Border Fence with
Russia’, The Guardian, 7 July 2022, https://www.theguardian.com/world/2022/jul/
07/finland-passes-law-to-bolster-border-fence-with-russia (accessed 18.12.2022).
82 ‘EU Border Agency Frontex “Covered up” Greek Pushbacks: Reports’, Euractive.Com,
29 July 2022, https://www.euractiv.com/section/justice-home-affairs/news/eu-border-a
gency-frontex-covered-up-greek-pushbacks-reports/ (accessed 18.12.2022).

14 Introduction
aim of diffusing or relieving the state of legal liability and human rights obligations
towards people on the move.
83
These measures are, however, also resisted by
mobile actors. To be sure, disorderly mobility is not only a product, but also in
itself a resistance to the national order of things having its origins in modernity/
coloniality. As I argue in the book, migrants’ resistance cannot be conceptualized
as being solely reactionary to the practices of bordering described above, as it also
anticipates many of the control measures. The very fact of mobility across borders
is a critique in itself and transgression of a system where movement is regulated
based on citizenship and exclusively defined by territorial affiliation. As highlighted
in the No Border Manifesto, “For every migrant stopped or deported, many more
get through and stay, whether legally or clandestinely. Don’t overestimate the
strength of the state and its borders. Don’t underestimate the strength of everyday
resistance.”
84
Therefore, even though the nation-state machine works through the
system of differential inclusion and exclusion, the migrant within such a system is
also an active agent of resistance.
To be sure, inclusion and exclusion as outcomes of these legal processes support
the maintenance of identity and stability of the nation-state by controlling movement
and regulating migration through its borders. At the same time the sovereignty of the
nation-state is challenged through unstoppable movement across its borders. The
picture becomes even more fragmented when one shifts from the perceived stability
of the nation-state to the perceived stability of law. Law has been presenting itself as
static due to its traditional linkage with the nation-state and the state territory.
85
In
addition, the perceived stability of law is also a result of the function of law in the
democratic state, where law has to be clear, stable, public, and universal.
86
The
purpose of these features is to guarantee equality and non-discrimination; however,
these guarantees are often not realized in concrete embodied, material situations.
87
The mobility lens helps to understand how law moves and what it does do through
this movement. In particular it helps to change the perspective from the universal
mobile subject to mobility’s further concrete materializations in the lives of those
who are moving across international borders. It also allows to inquire into the
methods and strategies through which mobilities can resist, affect, or change law.
The structure of the book
My theoretical and methodological approach generates three (interrelated)
implications that orient the contents of the book: (1) mobility is a quality of
83 Gammeltoft-Hansen and Vedsted-Hansen, Human Rights and the Dark Side of
Globalization,5.
84 Tamara Carauș and Elena Paris, eds., Migration, Protest Movements and the Poli-
tics of Resistance: A Radical Political Philosophy of Cosmopolitanism (Abingdon,
Oxon; New York: Routledge, 2019), 15.
85 Barr, A Jurisprudence of Movement, 140.
86 Fitzpatrick, Law as Resistance: Modernism, Imperialism, Legalism, 169–170
87 Philippopoulos-Mihalopoulos, Spatial Justice: Body, Lawscape, Atmosphere, 36.

Introduction 15
law and law itself is seen as mobile both in single jurisdictions (for instance in
the instability of legal regulations and institutions) and throughout all jurisdic-
tions (for instance in the mobility of legal concepts and the meetings of laws);
2) legal institutions and concepts have their origins in modernity/coloniality,
and construct desired and undesired mobilities and immobilities; 3) focus is
shifted from legal institutions to mobile subjects and mobility is approached as
resistance. The book is divided into five chapters, each dealing with one aspect
of the relationship between law and mobility. The first chapter focuses on
instability of the nation-state and on mobility of law as well as their implica-
tions for the construction of universal mobile subjects and for resistance. The
second and third chapters discuss the exclusionary character of the migration
law of the global North characterized by unequal human mobility. Finally,
chapters four and five challenge these dominant perspectives on law regulating
mobility and discuss mobility as resistance to law and as a method of producing
legal knowledge. The order of chapters does not mean that I consider resistance
as secondary or reactionary to the bordering and othering measures. Such
structure, where the hegemonic thoughts, practices, and the forms of ordering
of human mobility are introduced first and the alternative ideas and measures
are introduced later, serves the clarity of the argument that will be, never-
theless, deconstructed at the end of the book. Concluding reading the book, the
reader’s preconceptions about law and resistance are hopefully challenged by
ideas and practices of mobility when mobility rather than stability becomes a
dominant perspective on community, law, and subjectivity.
Chapter 1 Mobility as a quality of law introduces the concept of mobile law
and challenges the perception of law’s stability.
88
In this chapter I apply mobi-
lity lens to the relationship between law and the nation-state, that affects our
dominant thinking about law as stable. With the use of the concept of the
nation-state machine.
89
I show how the nation-state itself is an unstable entity
produced through the processes of discursive and non-discursive practices that
aim at homogenization and stabilization of the state. This encompasses con-
tinuous interactions between state’s various elements such as persons, material
and symbolic artefacts, and the ways they are regulated by rules or historical
narratives.
90
Law is one of such discursive practices that can sort people into
categories and produce concepts such as a citizen or a foreigner. It can also
regulate the movement of people or goods across national borders, consolidating
88 Olivia Barr, ‘Movement. An Homage to Legal Drips, Wobbles and Perpetual
Motion’,in Routledge Handbook of Law and Theory, ed. Andreas Philippopoulos-
Mihalopoulos, Routledge Handbooks (Abingdon, Oxon; New York, NY: Routle-
dge, 2019), 139.
89 Gilles Deleuze and Felix Guattari, Anti-Oedipus: Capitalism and Schizophrenia,
trans. Robert Hurley, Mark Seem, and Helen Lane, 6th printing (The Athlone Press,
2003), 142.
90 Manuel De Landa, Assemblage Theory, Speculative Realism (Edinburgh: Edinburgh
University Press, 2016), 2, 20.

16 Introduction
the state and providing it with a stable form and identity.
91
Revealing the
unstable quality of the state contributes to the shift of perception of law as
mobile. I then turn to discuss different ways that one can approach law as
mobile. Based on the literature on law and movement, I identify four such ways.
The first one is a movement of law embodied by people who are on the move.
The second is mobility fostered by movements of transnational organizations,
their epistemic and physical infrastructure. The third way of movement is
embedded in law’s interactions with other laws – the meetings of laws – at the
borders but also elsewhere. Finally, the fourth way is an understanding of law as
ontologically mobile. This manifests itself in jurisprudence exposing both open-
ness and closeness of legal concepts. Through all these interlinked perspectives,
law is being turned from static to mobile by shifting from objective and universal
rules and regulations to concrete cases, concrete legal decisions, and concrete
bodies. Chapter 1 thereby focuses on outlining the implications of such a mobile
turn of law, focusing on the role of law for the creation of the universal mobile
subject and then for its further concrete materializations in the lives of those who
are moving across international borders, looking in particular at the potential of
mobility for resistance.
Chapters 2 and 3 critically analyse the role of law in relation to human
mobility, traditionally understood as regulating the substantive and procedural
conditions for movement and residence within and across national borders. In
these two chapters, I show how a shift of perspective – from the content of
legal rules and procedures to their productive function – reveals how law con-
structs both mobilities and immobilities. By focusing on Mobility as a right in
Chapter 2 and Mobility as a violation of law in Chapter 3, this book shows the
construction of, respectively, orderly, and disorderly mobility. It also shows
how the distinction between these two forms of mobility serves to maintain the
nation-state. The chapters also show how a shift of perspective from static to
mobile reveals the primary instability of institutions currently constitutive of
the nation-state – that of citizenship and borders – and how they remain in a
constant process of construction and deconstruction, impacted by the shifting
dynamic of mobility.
In Chapter 2 Mobility as a right, I argue for the conceptual shift from the
right to the freedom of movement to mobility as a right. Mobility as a right has
its background in the asymmetrical right to the freedom of movement, under-
stood as ordered, stable, and rooted in territorially constructed citizenship. I
approach citizenship as an institution that has been historically constructed in
law as differential inclusion of some and exclusion of others. I draw my analysis
of citizenship on Hagar Kotef’s genealogy of liberal subjectivity based on regu-
lated and orderly movement as a condition for belonging.
92
At the same time,
by looking at citizenship through the lens of immobility I show how citizenship
91 De Landa, 38–39.
92 Kotef, Movement and the Ordering of Freedom.

Introduction 17
has been gendered, racialized, or minoritized and how these facets affect the
contemporary right to the freedom of movement.
93
I also analyse what this
conceptual shift reveals: the productive function of international and national
legal regulations on obtaining and losing citizenship that sets conditions for
mobility of some and immobility of others. As case studies I use two sets of
rules that recently gained prominence (1) allowing for acquiring citizenship
through investment, and (2) allowing for removal or revocation of citizenship if
it is conducive to the public good. The chapter demonstrates the contradictions
embedded in the concept of citizenship and the waning justifications for its
existence.
94
Chapter 3, Mobility as a violation of law, continues exploring the mobility
and movement of law as rooted in the relationship between the nation-state,
citizenship, mobility, and migration. This chapter turns however from citizen-
ship towards state sovereignty and borders. In other words, it explores these
movements that are considered as violating existing laws. What constitutes such
violation depends on the national and international rules governing migration,
that increasingly criminalize and illegalize certain mobilities.
95
The chapter
focuses on production of disorderly mobility that happen, first, at the border
which constitutes a meeting place for the multiplicity of laws determining the
status of the person and deciding on belonging and non-belonging, and conse-
quently on rights related to movement. Second, the chapter focuses on what
happens outside of the border where deterrence measures and overall externa-
lization of protection takes place. Whereas at the border, “there is a relation
between international law, the status of the person and the domestic laws in
place: a meeting of laws” that has a productive function of filtering desired
from non-desired migrants,
96
moving law outside the border aims to avoid such
legal encounters and in consequence to prevent the emergence of any obliga-
tions towards those on the move.
97
The chapter then traces the operation of
contemporary processes of bordering that function through securitization and
criminalization, deterrence and exterritorialization of protection as well as the
overspill of migration law into other areas of law. These measures enable the state
to both reproduce and reinvent itself through positing migration at its centre.
Processes of bordering leading to the multiplication of borders
98
constitute a basis
for such states’ reproduction and reinvention.
99
93 See for instance Sheller, Mobility Justice; Kochenov, Citizenship, 127–128
94 See also Kochenov, Citizenship, xii, xv.
95 See for instance Katja Franko, The Crimmigrant Other: Migration and Penal Power,
Key Ideas in Criminology (Abingdon, Oxon; New York, NY: Routledge, 2020).
96 Barr, A Jurisprudence of Movement, 2016, 39.
97 Gammeltoft-Hansen and Vedsted-Hansen, Human Rights and the Dark Side of
Globalization,5.
98 Mezzadra and Neilson, Border as Method, or, the Multiplication of Labor.
99 Kmak, ‘Migration Law as a State (Re)Producing Mechanism’.

18 Introduction
Chapters 4 and 5 shift the focus from the state and law to mobile subjects.
They approach mobility (1) as a form of resistance; and (2) the way of the
production of embodied knowledge. Chapter 4 Mobility as a resistance to law
builds on findings of the previous chapters and poses a question on the possi-
bility of resistance to the institutions of citizenship, state, and borders, both
from within and from outside law. Whereas in the previous chapters of the
book I show how the forms of mobility that are not streamlined and orderly are
considered a violation of state sovereignty and law designed to implement it,
Chapter 4 focuses on mobility as a force that can resist this law. But I am not
aiming solely to juxtapose mobility and law but also to think whether mobility
can serve as resistance from within law.
Chapter 4 conceptualizes two levels of resistance: resistance against law set-
ting up the national order of things and the global mobility infrastructure; and
resistance against the national order of things in itself. Analysing resistance
from within law I ask which types of resistance are possible if we chose to stay
within the nation-state system rooted in modernity/coloniality. I argue that
resistance in a form of human rights can be effectively claimed only by those
who move in an orderly fashion and are, therefore, included into the global
mobility infrastructure. In the case of others, the protection can be minimal or
non-existent and the role of human rights is often taken by humanitarianism.
The chapter then turns from resistance within the system of human rights law
towards resistance from outside law. This move is inspired by movements such
as Sans-Papiers and a great body of work within the field of mobility studies
focusing on mobility and movement opposing the static system of statehood
and law. This includes for instance the work on autonomy of migration,
100
the
acts of everyday citizenship,
101
or autonomous solidarities with migrants.
102
Is
it, however, possible to resist the national order of things not only from within
the existing human rights framework or from the outside, through actions
taken against or despite the legal rules and legal practices, but also from the
inside, through the legislative changes and the legal practice itself? In other
words, is there an emancipatory potential within law that could overcome the
national order of things? Can law itself be used as resistance by destabilising its
premises and principles such as citizenship and statehood? In this context the
chapter moves to discussing the possibility of resistance through law by refer-
ring to the scholarship on right to have rights
103
and right not to have rights,
104
100 De Genova, The Borders of ‘Europe’.
101 See for instance Nyers and Rygiel, Citizenship, Migrant Activism and the Politics of
Movement; Rigo, ‘Citizens despite Borders: Challenges to the Territorial Order of
Europe’.
102 See for instance Dadusc and Mudu, ‘Care without Control’.
103 Kesby, The Right to Have Rights: Citizenship, Humanity, and International Law;
Gündog
˘du, Rightlessness in an Age of Rights.
104 Oudejans, ‘The Right Not to Have Rights’.

Introduction 19
right to social membership,
105
and concepts such as illegal,
106
transgressive
citizenship,
107
and belonging based on distributive justice.
108
The final chapter, Mobility as a method of legal knowledge production,
analyses a particular form of resistance to the static concept of the nation-state
that is brought by experiences and knowledges of people on the move. Such
perspective emphasizes both the agency of the mobile person and approaches
mobility through a novel perspective as a method of studying and producing
law.
109
After conceptualising the epistemological role of mobility for knowledge
production in general, the chapter takes on juxtaposing the dominant and
mobile knowledges. In particular, in reference to previous chapters of this book,
it recounts the dominant knowledges of migrants and persons in refugee situa-
tion that are perpetuated by media and politicians that are then challenged by
knowledges constructed through the process of mobility. Mobility as a mode of
knowing or the production of knowledge through mobility is not a new field of
study, and movement or circulation of human beings has been recognized as a
necessary element of the transfer of valuable knowledge.
110
This chapter
demonstrates the direction in research that studies more comprehensively the
knowledges produced through the experience of forced displacement and
migration, or the knowledges facilitating the movement itself. Through the
focus on mobile epistemology or mobile knowledges, this chapter juxtaposes
methodological nationalism and the state-based concept of belonging
111
with
communities of knowledges
112
that encompass not only knowledges of law but
also experiences of living and acting with, along, or against law. By countering
105 Carens, The Ethics of Immigration.
106 Rigo, ‘Citizens despite Borders: Challenges to the Territorial Order of Europe’.
107 Rygiel, ‘Dying to Live: Migrant Deaths and Citizenship Politics along European
Borders: Transgressions, Disruptions, and Mobilizations’.
108 E. Tendayi Achiume, ‘Migration as Decolonization’, Stanford Law Review 71
(2019): 1509–1574.
109 Kader Konuk, ‘Jewish-German Philologists in Turkish Exile: Leo Spitzer and Erich
Auerbach’,in Exile and Otherness: New Approaches to the Experience of the Nazi
Refugees (Oxford: Peter Lang, 2005).
110 See for instance Peter Burke, A Social History of Knowledge II: From the Encyclo-
paedia to Wikipedia (Cambridge: Polity Press, 2012); Peter Burke, Exiles and
Expatriates in the History of Knowledge, 1500–2000, The Menahem Stern Jerusalem
Lectures (Waltham, Massachusetts: Brandeis University Press/Historical Society of
Israel, 2017).
111 Andreas Wimmer and Nina Glick Schiller, ‘Methodological Nationalism and
beyond: Nation-State Building, Migration and the Social Sciences’, Global Networks
2, no. 4 (October 2002): 301–334.
112 Tekalign Ayalew Mengiste, ‘Refugee Protections from Below: Smuggling in the Eri-
trea-Ethiopia Context’, The ANNALS of the American Academy of Political and
Social Science 676, no. 1 (March 2018): 57–76; Nicos Trimikliniotis, Dimitris Par-
sanoglou, and Vassilis Tsianos, ‘Mobile Commons and/in Precarious Spaces: Map-
ping Migrant Struggles and Social Resistance’,in Politics of Precarity: Migrant
Conditions, Struggles and Experiences (Leiden: Brill, 2017).

20 Introduction
the official knowledges, mobile knowledges contribute to the resistive tension
that lies at the very centre of power relations in the state.
113
Importantly, the
knowledges of law gained through mobility cut across the divide between mobility
as resistance from the outside of law and from within law and therefore allow for
more complex and multifaceted perspectives on law as resistance. Therefore, the
chapter develops a more comprehensive understanding of movement and mobility
as the method of studying and resisting law of the global North and outlines
methodological and ethical concerns for studying such knowledges.
113 Simon Thorpe, ‘In Defence of Foucault: The Incessancy of Resistance’, Critical
Legal Thinking (blog), 2 July 2012, https://criticallegalthinking.com/2012/02/07/in-de
fence-of-foucault-the-incessancy-of-resistance/ (accessed 18.12.2022).

Chapter 1
Mobility as a quality of law
Introduction
This chapter introduces the concept of mobile law and challenges the percep-
tion of law’s stability.
1
It provides theoretical underpinnings for further analy-
sis, that will allow me to delve more deeply into different aspects of this
complex and multifaceted relationship between law and mobility. I argue that
approaching law as mobile is needed for a better understanding of power rela-
tions that are playing out in law, between laws, or between law, society, poli-
tics, and economy as a whole. In particular, the concept of mobile law allows
better understanding of power relations that are embedded in human mobility
2
which govern the ways both humans and law move. To be sure, law’s
movements manifest in a variety of ways: through the movement of people
carrying law, through jurisprudence, through the meetings of law, or
through resistances, breakdowns, and transformations. It is important
therefore, to pay attention to the movement of law and understand the the-
oretical and methodological implications that this movement has for studying
and working with law.
If, as Thomas Nail and other scholars argue that motion is fundamentally
constitutive of all beings,
3
law has to be mobile as well.
4
The one field where
the mobility of law has been discussed early on is legal anthropology. As editors
of the book Mobile People Mobile Law argue, “[t]hroughout history, law has
always been mobile.” Mobile law has been transported through trading rela-
tions as well as having moved during hegemonic expansions of states. Laws,
1 Olivia Barr, ‘Movement. An Homage to Legal Drips, Wobbles and Perpetual
Motion’,in Routledge Handbook of Law and Theory, ed. Andreas Philippopoulos-
Mihalopoulos, Routledge Handbooks (Abingdon, Oxon; New York, NY: Routle-
dge, 2019), 139.
2 See also N De Genova et al., ‘Minor Keywords of Political Theory: Migration as a
Critical Standpoint A Collaborative Project of Collective Writing’, Environment and
Planning C: Politics and Space, 9 March 2021, 37.
3 Thomas Nail, Being and Motion (New York, NY: Oxford University Press, U.S.A.,
2019), 2.
4 Barr, ‘Movement. An Homage to Legal Drips, Wobbles and Perpetual Motion’, 139.
DOI: 10.4324/9781003254966-2
This Chapter has been made available under a CC-BY-NC-ND 4.0 license.

22 Mobility as a quality of law
sets of legal institutions, and entire legal systems were moved across national
borders in all periods of history.
5
But law has not only been mobile by being
moved through different territories – mobility has been also imprinted in law
and legal practice. For instance, according to Emilia Mataix Ferrándiz “Roman
jurists did not understand the world as static—their interest was not in taxonomy.
Theirs was a world in motion. That motion was manifested in the different solu-
tions that (…)reflect a conformity to law but allow a recognition of the gaps
between social and legal facts.”
6
Why, then, does law presents itself as static? To be sure, it is difficult to
notice the movement of law due to its traditional understanding as a tool of a
state, usually itself considered as a stable form of societal organization.
7
The
linkage of law with the nation-state and the state territory, that results in sta-
bilising and solidifying law, is crucial for the construction of the modern
nation-state where the nation, its identity, is perceived as something unified and
singular.
8
In the contemporary definition of the nation-state in international
law, the state consists of a government of people inhabiting a particular terri-
tory. To produce and maintain the perception of stability of the nation-state
national and international law regulates the access to state membership and
controls the movement across geographical borders. In other words, the per-
ception of stability of the nation-state emerges from the attempt to define an
inherently unstable concept of a nation, and law constitutes one of the tools to
do so.
9
In addition, the democratic government is based on the rule of law,
where law has to be clear, stable, public, and universal – features that hide the
mobility of law.
10
The purpose of these features is to guarantee equality and
non-discrimination. However, the guarantees are often not realized in concrete
embodied, material situations. For that reason, as Andreas Philippopoulos-
Mihalopoulos argues “…law always dissimulates its materiality, because of its
apparent incompatibility between that and universality.”
11
In this context, the
response to the question – why is law not moving? – is simply that the stability
of law is, first and foremost, a disguise that is caused by law’s linkage with the
5 Franz von Benda-Beckmann, Keebet von Benda-Beckmann, and Anne Griffiths (eds.),
Mobile People, Mobile Law: Expanding Legal Relations in a Contracting World,
(Abingdon, Oxon; New York, NY: Routledge, 2005), 7.
6 Emilia Mataix Ferrándiz, Shipwrecks, Legal Landscapes and Mediterranean Para-
digms: Gone under Sea, Mnemosyne Supplements History and Archaeology of
Classical Antiquity, volume 456 (Leiden, The Netherlands; Boston: Brill, 2022), 69.
7 Barr, ‘Movement. An Homage to Legal Drips, Wobbles and Perpetual Motion’, 139.
8 Peter Fitzpatrick, Law as Resistance: Modernism, Imperialism, Legalism (Abingdon,
Oxon; New York, NY: Routledge, 2008), 239.
9 Catherine Dauvergne, Making People Illegal: What Globalization Means for
Migration and Law (Cambridge University Press, 2008), 45.
10 Fitzpatrick, Law as Resistance: Modernism, Imperialism, Legalism, 169–170
11 Andreas Philippopoulos-Mihalopoulos, Spatial Justice: Body, Lawscape, Atmo-
sphere, 1. publ, Space, Materiality and the Normative (Abingdon: Routledge, 2015),
36.

Mobility as a quality of law 23
territory, without which a modern nation-state would not exist. The second
reason is that the universal law disguises its own uneven operation in the
actual, gendered, racialized, or classed bodies. Law is, therefore, mobile, but
our habits of looking and thinking about law, as connected to the state, stabi-
lize it. How to change these habits, “[h]ow might we learn to perceive move-
ment in or as law?”
12
To answer this question, we need to follow what Thomas
Nail urges: we need to understand how does law move? And, what can it do
through this movement?
13
Exploring these questions more deeply, will allow to
notice law’s movement behind the disguise of stability.
In the present chapter, I first apply mobility lens to the relationship between
law and the nation-state, that affects our dominant thinking about law as
stable. With the use of the concept of the nation-state machine
14
I show how
the nation-state itself is an unstable entity. It is produced through the processes
of discursive and non-discursive practices that aim at homogenization and sta-
bilization of the state. Law is one of such discursive practices that can sort
people into categories and produce concepts such as a citizen or a foreigner. It
can also regulate the movement of people or goods across national borders,
consolidating the state and providing it with a stable form and identity.
15
Revealing the unstable quality of the state contributes to the shift of perception
of law as mobile.
Ithenturntodiscuss different ways that one can approach law as mobile.
In Mobile People Mobile Law, which inspired the title of this book, the
authors identify several modes of the movement of law, one of which is the
embodiment or movement of law by both people and transnational organi-
zations that are involved in making law mobile. Another one is embedded in
law’s interactions with other laws as well as with society, politics, and the
economy. To this, I add another understanding of the mobility of law – that
of mobility as a quality of law. These modes of law’s movement should not
be considered as separate because the embodiment of law is intimately
linked with the decision making, jurisdiction or with mobility infrastructure.
As Olivia Barr shows, law moves through patterns of both technical and
material practice
16
and these can include jurisdiction, as well as walking or
traveling with law. All these approaches, however, shift the focus from the
objective and universal rules, and regulations to concrete cases, concrete
legal decisions, and concrete bodies.
12 Barr, ‘Movement. An Homage to Legal Drips, Wobbles and Perpetual Motion’, 139.
13 Nail, Being and Motion, 124.
14 Gilles Deleuze and Felix Guattari, Anti-Oedipus: Capitalism and Schizophrenia,
trans. Robert Hurley, Mark Seem, and Helen Lane, 6th printing (The Athlone Press,
2003), 142.
15 Manuel De Landa, Assemblage Theory, Speculative Realism (Edinburgh: Edinburgh
University Press, 2016), 39.
16 Olivia Barr, A Jurisprudence of Movement: Common Law, Walking, Unsettling
Place (Abingdon, Oxon; New York, NY: Routledge, 2016), 3.

24 Mobility as a quality of law
In the last part of the chapter, I analyse the implications of the shift from
stability to mobility of law. I particular, I show how such approach helps to
change the perspective from the universal mobile subject to mobility’s further
concrete materializations in lives of those who are moving across international
borders. This, then allows looking into the methods and strategies through
which mobilities can resist, affect, or change law. As Andreas Philippopoulos-
Mihalopoulos indicates, such spatiolegal operations are a necessary condition
for justice.
17
Nation-state machine
Thomas Nail’s theory of ontological mobility is related to the concept of the
machine developed by Gilles Deleuze and Felix Guattari, which means an
ontological mobility of the world that is in a constant process of becoming.
According to Deleuze and Guattari “…everything is production….”
18
Every-
thing, from bodies to ideas, is machinic – it is created through continuous
workings of various elements being disassembled and re-arranged again and
again. This includes also the nation-state, which for Deleuze and Guattari is a
social machine, “a megamachine, that codes the flows of production, the flows
of means of production, of producers and consumers.”
19
In other words, the
state is an entity the properties and identity of which are produced by con-
tinuous interactions between its various elements such as persons, material and
symbolic artefacts, and the ways they are regulated by rules or historical nar-
ratives.
20
As Manuel DeLanda explains, while all organizations undergo such
regulation or coding, in the case of states coding encompasses the entire terri-
tory and all communities that inhabit it.
21
The state as a whole is; as such,
relatively impermanent because it is based on contractual relations linked with
the territory. Territorial states are, therefore, what is called an assemblage or
“(…) a configuration of relationships among diverse sites and things,”
22
that
include a variety of material and expressive elements, such as natural resources
and the human populations that are defined by the borders
23
as well as expres-
sivity of the landscapes or ways of expressing military power and political
sovereignty.
24
Identity or essence in these types of organizations is produced through the
processes of discursive (coding) and non-discursive (territorialization) practices,
17 Philippopoulos-Mihalopoulos, Spatial Justice, 175.
18 Deleuze and Guattari, Anti-Oedipus,4.
19 Deleuze and Guattari, 142.
20 De Landa, Assemblage Theory, 2, 20.
21 De Landa, 22.
22 George E. Marcus and Erkan Saka, ‘Assemblage’, Theory, Culture & Society 23, no.
2–3 (May 2006): 101–106, 102.
23 De Landa, Assemblage Theory, 35.
24 De Landa, 36.

Mobility as a quality of law 25
both of which aim at homogenization and stabilization of the state. Coding, for
instance, happens by sorting people into criminal, medical, or pedagogic cate-
gories in prisons, hospitals, or schools. These coding practices also include, for
instance, the control of the movement of migrants, goods, money, or foreign
troops across national borders.
25
Discursive practices also produce conceptual
categories such as a citizen or a foreigner consolidating those sorted human
materials and giving institutions a more stable form and identity.
26
But the state
also consists of deterritorializing processes which affect the integrity of national
frontiers, such as secession or a loss of territory on the one hand, and border-
defying processes such as authorized and unauthorized human movement, on the
other.
27
It is, therefore, misleading to view the nation-state and society as always
already stable and progressing in a linear fashion from one form to another as they
are in the process of constant territorialization and deterritorialization.
28
Machinic quality of statehood is very well visible in international law, in the
definition of a state in the 1933 Montevideo Convention on the Rights and
Duties of States, where statehood is defined as an entity inherently based on the
effective control of the permanent population inhabiting a defined territory. The
nation-state, therefore, through the continuous processes of governing the
population inhabiting its territory captures (regulates) the flows of natural and
expressive components, flows of capital or population through its borders, to
perpetuate itself over time.
29
The nation-state machine consists of different
assemblages; for instance, a person and a passport, that together, with the
border infrastructure, with the definition of citizenship in national law, con-
stitute a relationship that is productive of the identity of the state as it is able to
distinguish between those who belong and those who don’t belong. Such con-
nections are conceptualized, stabilized, normalized, and given an essence. To be
sure, homogenization and stabilization of the nation-state fails as failure or
deterritorialization is an inherent part of the operation of the nation-state
machine.
30
In other words, social machines, in order to function must not
function well.
31
In the case of statehood, this can be seen, for instance, through
the example of human/passport assemblage described above. Here, the breaking
down happens when borders are being crossed without documents. Refugees in
particular constitute a threat to such perceived stability of a nation-state.
Giorgio Agamben explains that a refugee, through an application for protection
based on international instruments, automatically challenges the right of a state
to decide who can enter and stay on its territory.
25 De Landa, 37.
26 De Landa, 38–39.
27 De Landa, 37.
28 De Landa, 37.
29 Paul Patton, Deleuze and the Political, 1 edition (Abingdon, Oxon; New York:
Routledge, 2000) 104.
30 Deleuze and Guattari, Anti-Oedipus, 31.
31 Deleuze and Guattari, 152.

26 Mobility as a quality of law
If the refugee represents such a disquieting element in the order of the
nation-state, this is so primarily because, by breaking the identity between
the human and the citizen and that between nativity and nationality, it
brings the originary fiction of sovereignty to crisis.
32
At the same time, through the spectacle of borders, walls, and pushbacks, states
attempt to reinforce the stability of their waning sovereignty.
33
The failure of the
borders is, therefore, productive for the state as it indicates the state’s territory and
allows the state authorities to counteract through mobilization of the border police
and legal apparatus that reinforce state sovereignty. The understanding of the
machine as an entity that perpetually (re)produces itself through breaking down is
particularly important to analyse the continuously dominant position of the
nation-state despite the proclamations of waning sovereignty in a globalized
world.
34
Citizenship and borders are crucial elements of constructing the identity
of the nation-state as they feed in the processes of constant (re)production. Citi-
zenship determines inclusion and serves to govern and control the movements to
and from, as well as within the national territory, in other words, through borders.
Borders and the processes of bordering in turn, maintain the illusion of stability
and sovereignty through the creation of difference and exclusion.
35
Law’spurpose
is to define who is included and excluded from the territory of the state and in
consequence to determine their rights and obligations. In the next sections of this
chapter, I problematize this process by applying mobility lens to law’s operations.
Mobility of law
Applying mobility lens to the nation-state revealed its unstable nature, allowing
in turn to problematize the perceived stability of law. Mobility of law manifests
itself in multiplicity of ways, through law’s technicalities and materialities.
36
Law moves with people – people move law with them, law ‘drips’,
37
and dif-
ferent laws meet at the border. In this chapter I approach mobility as a quality
of law understood very broadly, as encompassing law being moved around by
mobile persons, law meeting with other laws at different places or borders but
also as legal concepts being unstable themselves.
Analysing mobility of law we need, first, to focus on the ways law is embo-
died by different subjects that carry law with them, be it by walking, driving a
32 Giorgio Agamben, Means without End: Notes on Politics (Minneapolis: University
of Minnesota Press, 2000), 20.
33 Wendy Brown, Walled States, Waning Sovereignty, 1 edition (New York: Cam-
bridge, Mass: Zone Books - MIT, 2010).
34 Saskia Sassen, Territory, Authority, Rights: From Medieval to Global Assemblages,
Updated edition (Princeton, NJ: Princeton University Press, 2008).
35 Sassen, 9.
36 Barr, A Jurisprudence of Movement,3.
37 Barr, ‘Movement. An Homage to Legal Drips, Wobbles and Perpetual Motion’, 140.

Mobility as a quality of law 27
tuk-tuk or a car, travelling on a dinghy from Libya to Sicily, or taking a flight
from Helsinki to Las Vegas. To be sure, the positionality of the person who
moves law with them affects their movement, as persons with a different pass-
port, race, or gender move differently. Second, the movement of embodied law
is facilitated by infrastructure, including the legal regulations and material
infrastructure that can either speed up, slow down, or prohibit the movement
of embodied law, again depending on the positionality of the person that moves
with law. The point of view from the vehicles themselves provides a critical
perspective on the governance of movement too.
38
Third, law embodied by
people and moving with them meets with other laws, be it at the border, on
indigenous lands, carrying colonial or neo-colonial relations. Fourth, law moves
in jurisprudence, in the way how law constantly navigates between closeness
and openness, through its universality and its manifestation in concrete legal
decisions. Some of these judgments or decisions also move law forward and
allow for emancipatory changes.
Embodiment of law
The mobility of people that embody law is the first instance of making law
mobile. This concerns not only the mobility of those who cross international
borders and carry their laws with them to other countries, but all of us moving
as we attend to our own lives. As Mimi Sheller writes in Mobility Justice,
human mobility does not only mean cross-border mobilities but includes also
urban mobilities and micro-mobilities at the bodily scale.
39
Law is, therefore,
not only embodied in all of us carrying our gender, race, class but also our
inheritances, histories, and experiences. This affects how we move both
amongst and with these positionalities.
40
In the context of international mobi-
lity this means that we are always carrying our jurisdictional status
41
but also
that this status and, hence, our movement is affected by other aspects and fea-
tures of our lives.
Existing literature, such as Mobile People Mobile Law focuses most often
on law moving with people who cross international borders. The literature on
migration usually describes one aspect of these processes – migrants take their
law to the new country of domicile. This means that the customary or reli-
gious law of the migrant’s place of origin, but to some extent also their
national law does not lose its relevance after one move to a new place or
country. This law is often seen as incompatible with the law of the receiving
state, creating, as a result, problems for politicians, lawyers and for the
38 William Walters, ‘Migration, Vehicles, and Politics: Three Theses on Viapolitics’,
European Journal of Social Theory 18, no. 4 (November 2015): 469–488.
39 Mimi Sheller, Mobility Justice: The Politics of Movement in the Age of Extremes
(London; Brooklyn, NY: Verso, 2018), 41 (iBooks).
40 Barr, A Jurisprudence of Movement, 22.
41 Barr, 130.

28 Mobility as a quality of law
migrants themselves.
42
In result, some laws are considered better than other
laws and the hierarchies of laws are constructed to regulate the order of
application of different types of laws.
To be sure, the role of the movement of people for the mobility of law con-
cerns not only one-way movement from the country of origin to the country of
destination. Literature on transnational migration shows how people called
transmigrants
43
or long distance nationals
44
constantly maintain social relations
between two or more homes,
45
which on the one hand may create problems
concerning the right laws to be used in regulating various spheres of their lives,
but also affect the laws in the countries of origins and countries of destination.
Mobile laws and hierarchies created between different laws have effects on the
host state population (for instance differently minoritized groups already pre-
sent in the receiving countries),
46
as well as on those who are not transnation-
ally mobile but feel and experience the effects of mobile law.
47
An example of
the former effect is the concept of evictability coined by Huub van Baar who
shows how securitization of migration has a spill over effect on Romani mino-
rities who have been discriminated in comparison to those considered as mobile
EU citizens.
48
This concerns not only deportations between the EU countries
but also cycles of forced evictions from one place to another that the Roma
people have been subjected to. In the case of the latter, mobility for work, for
instance, has multifaceted financial, cultural, and economic effects on the
countries of departure, including the emergence of transnational families, brain
drain, or revenues, to mention the few. At the same time, migration policies set
different opportunities for distinct populations that affect their possibility for
transnational mobility.
49
For instance, securitization of migration and intro-
duction of stricter laws in the countries of arrival affect the possibility of
transnational mobility (for work or study) for those with less financial resour-
ces to do so in the countries of their origins. As Sager writes, “[c]oercion at the
42 Von Benda-Beckmann, von Benda-Beckmann, and Griffiths, Mobile People, Mobile
Law, 15.
43 Alex Sager, ‘Methodological Nationalism, Migration and Political Studies’, Political
Studies 64, no. 1 (2016): 45.
44 Andreas Wimmer and Nina Glick Schiller, ‘Methodological Nationalism and
beyond: Nation-State Building, Migration and the Social Sciences’, Global Networks
2, no. 4 (October 2002): 301–334, 323.
45 Sager, ‘Methodological Nationalism, Migration and Political Studies’, 45; Marie-
Claire Foblets, ‘Mobility versus Law, Mobility in the Law? Judges in Europe Are
Confronted with the Thorny Question “which Law Applies to Litigants of Migrant
Origin?”’,in Mobile People, Mobile Law.
46 Huub van Baar, ‘Evictability and the Biopolitical Bordering of Europe’, Antipode 49,
no. 1 (2016): 212–230, 216.
47 See for instance Sager, ‘Methodological Nationalism, Migration and Political Stu-
dies’, 55.
48 van Baar, ‘Evictability and the Biopolitical Bordering of Europe’.
49 Sager, ‘Methodological Nationalism, Migration and Political Studies’, 53.

Mobility as a quality of law 29
border does not simply exclude people, but also upholds and shapes institutions
in both countries,” affecting transnational migration industry and infra-
structure.
50
Securitization also stalls mobility and often enhances irregularity as
those migrants who would usually circulate between their home and host
countries, will, due to increased difficulties in travelling there and back, chose
to overstay their visas in order not to risk a possibility of refusal of entry.
51
This is discussed in more detail in Chapter 3 on Mobility as a violation of law.
Beyond the research on cross-border mobility of people who are taking their
laws with them, emerging research focuses also on the epistemological role of
human movement for law. To break it down, it focuses on how the experiences
of those who move affect the way how they understand and think about, apply,
and resist law. Traditionally such research focused on intellectuals and artists
52
but more interest is nowadays directed also towards experiences of different
groups of migrants.
53
This is visible, for instance, in what I have called else-
where the third generation of exile studies
54
that focuses on the impact of the
experience of forced displacement, and the role of migration in creating new
knowledges and new theories. Exile studies have focused traditionally on his-
torical academic displacement (such as, for instance, the German-Jewish scho-
lars forced to leave Nazi Germany). The new focus of exile studies does not
only bring forward the agency of the émigrés
55
and recognizes the role of affects
and emotions in the process of knowledge production,
56
but includes also
expanding field of knowledges produced outside Europe and epistemologies of
contemporary migration that expands beyond the spheres of art and academia,
50 Sager, 55.
51 Thomas Nail, Theory of the Border (Oxford; New York: Oxford University Press,
2016), 176–177.
52 See for instance Laura Fermi, Illustrious Immigrants: The Intellectual Migration
From Europe 1930–1941 (Chicago and London: The University of Chicago Press,
1968); Mitchell G. Ash and Alfons Söllner, eds., Forced Migration and Scientific
Change: Émigré German-Speaking Scientists and Scholars after 1933 (Cambridge:
Cambridge University Press, 1996); Lewis A. Coser, Refugee Scholars in America:
Their Impact and Their Experiences (New Haven and London: Yale University
Press, 1984); Claus-Dieter Krohn, Intellectuals in Exile, Refugee Scholars and the
New School for Social Research, trans. Rita Kimber and Robert Kimber (Amherst:
University of Massachusetts Press, 1993); Peter Burke, Exiles and Expatriates in the
History of Knowledge, 1500–2000, The Menahem Stern Jerusalem Lectures (Wal-
tham, Massachusetts: Brandeis University Press/Historical Society of Israel, 2017).
53 See for instance Elena Fiddian-Qasmiyeh, Refuge in a Moving World: Tracing
Refugee and Migrant Journeys across Disciplines (London: UCL Press, 2020).
54 Magdalena Kmak and Heta Björklund, eds., Refugees and Knowledge Production:
Europe’s Past and Present (Abingdon, Oxon; New York: Routledge, 2022).
55 Kaius Tuori, Empire of Law: Nazi Germany, Exile Scholars and the Battle for the
Future of Europe (Cambridge: Cambridge University Press, 2020), 11.
56 Paolo Boccagni and Loretta Baldassar, ‘Emotions on the Move: Mapping the Emer-
gent Field of Emotion and Migration’, Emotion, Space and Society 16 (August 2015):
73–80.

30 Mobility as a quality of law
encompassing for instance students
57
or humanitarian workers.
58
This aspect of
mobility will be dealt with in Chapter 5 of this book, Mobility as a method of
producing legal knowledge.
Infrastructure
It is not only human mobility that is making law mobile, but mobility of law
can also be fostered by both epistemic and physical infrastructure. As authors
of the Mobile People Mobile Law show, setting law in motion also takes place
within certain epistemic communities, assembled in international organizations
or development organizations such as the UN, multinational corporations,
international NGOs, World Bank, or WTO. These organizations constitute
important global epistemic infrastructure that allows transporting laws from
“Western to developing countries.”
59
They not only transport law across the
globe, but they also establish themselves as important sources of law-making or
important actors in restructuring localities from global perspectives.
60
For
instance, in the chapter titled ‘Mobile Law and Globalization: Epistemic Com-
munities versus Community-Based Innovation in the Fisheries Sector,’ Melanie
G. Wiber looks at how reliance on epistemic communities of technical experts
such as Northwest Atlantic Fisheries Organization have played a crucial role in
generating global impacts in administrative law by transferring one manage-
ment regime across global fisheries and impacted fisheries in the Scotia Fundy
region in Canada.
61
Similarly, Ukri Soirila in his book Law of Humanity Pro-
ject describes how humanitarian governance and humanity language has been
spread through international organizations, for instance through jurisprudence
of international courts or as part of international humanitarian missions in
conflict and post-conflict societies taking over the role of the state and sub-
ordinating local administrative rule.
62
To be sure, such understanding of the
57 Céline Cantat, Ian M. Cook, and Prem Kumar Rajaram, eds., Opening up the Uni-
versity: Teaching and Learning with Refugees, Higher Education in Central Per-
spective: Practices and Policies, Volume 5 (New York: Berghahn Books, 2022); Yi’En
Cheng, ed., International Student Mobilities and Voices in the Asia-Pacific: Letters
to Coronavirus (Singapore: Springer Nature Singapore, 2022).
58 Nadine Hassouneh and Eliza Pascucci, ‘Nursing Trauma, Harvesting Data: Refugee
Knowledge and Refugee Labour in the International Humanitarian Regime’,in
Refugees and Knowledge Production: Europe’s Past and Present.
59 Von Benda-Beckmann, von Benda-Beckmann, and Griffiths, Mobile People, Mobile
Law, 13.
60 Ibid., 13.
61 Melanie G. Wiber, ‘Mobile Law and Globalization: Epistemic Communities versus
Community-Based Innovation in the Fisheries Sector’,in Mobile People, Mobile
Law.
62 Ukri Soirila, The Law of Humanity Project: A Story of International Law Reform
and State-Making, Studies in International Law, volume 82 (Oxford, UK; New
York, NY: Hart Publishing, an imprint of Bloomsbury Publishing, 2021), 90–100.

Mobility as a quality of law 31
mobility of law through international infrastructure foregrounds certain type of
knowledge that often enshrines only one particular perspective or political
project – that of the global North.
63
In turn less or no focus is put on the
movement of knowledge from the global South. Thomas Spijkerboer shows for
instance the process or erasing sources of international migration law from the
global South, such as the Supreme Court of Justice of Papua New Guinea’s
decision in Namah v Pato from 2016.
64
However, physical infrastructure is perhaps the most intuitive element of
studies on the emerging discipline of law and mobility. Launched in June 2018,
Michigan Journal of Law and Mobility, for instance, recognizes the forth-
coming changes, including the role of cars, trucks, or drones on transition
towards new mobility that is intelligent, automated, and connected, which will
not only transform the movement of people but also affect public and private
spheres of societal movement. To be sure, law plays an important part in these
infrastructural innovations, such as “intelligent, automated, and connected
mobility systems” that will disrupt or redefine not only transportation law but
also policing, property law, security, etc. Echoing the inaugural essay of the
journal, these innovations and mobility systems will transform legal concepts
and practices in far-reaching manners.
65
The mobility revolution will surely have an impact on embodied mobilities
where different positionalities affect the modes and possibilities for movement.
A focus on the “global mobility infrastructure”
66
reveals the intimate relation-
ship between law, the processes of global mobility management and mobility
infrastructure, and notices the distinction between those mobilities that are
being sped up and those that are being slowed down or stopped altogether.
67
This infrastructure encompasses three closely related elements:
1. Physical structures: air and sea ports; airplanes and ferries; hotels, res-
taurants, and other locations to cater to mobile people; roads and railroads
to transport people to the major hubs that harbour and, in particular, air-
ports have become; 2. Services: travel agencies, consular officials, visa
intermediaries, hotel and catering personnel, people working in transport
companies (airline and ferry companies, domestic transport to hubs); 3.
Law: the liberalization of international people transport, especially in
63 Thomas Spijkerboer, ‘The Geopolitics of Knowledge Production in International
Migration Law’,in Research Handbook on the Law and Politics of Migration,by
Catherine Dauvergne (Edward Elgar Publishing, 2021), 184.
64 Spijkerboer, 172.
65 Daniel Crane, ‘The Future of Law and Mobility’, Journal of Law and Mobility 2018
(2018): 1–9.
66 Thomas Spijkerboer, ‘The Global Mobility Infrastructure: Reconceptualising the
Externalization of Migration Control’, European Journal of Migration and Law 20,
no. 4 (29 November 2018): 452–469.
67 Spijkerboer, 454.

32 Mobility as a quality of law
aviation; the amendment of laws to allow for mergers of previously
national transportation companies; change of visa regulations, partly tigh-
tening and partly liberalising control.
68
The development of the global mobility infrastructure has fostered the expan-
sion of human mobility, however as Spijkerboer points out, it also allowed the
infrastructure to be a mode of distinction of movement that is based on race,
gender, and class. Indeed, law plays an important part in the global mobility
infrastructure and is intimately linked with the way how certain people and
their means of movement are coded as mobile or immobile. This also affects the
way infrastructure is fostering or banning movement, which is visible, for
instance, at the border. Border emerges here not only as a certain place with the
setup infrastructure that manages the flow of persons from one country to
another, but also is embodied by a moving person or inscribed in a vehicle as a
border zone. The border and its infrastructure are everywhere and are trans-
forming the very nature of the border phenomenon speeding up the imple-
mentation of this new type of border – one that is “mobile, portable, and
omnipresent.”
69
Law, therefore, can be located at the physical border, mani-
festing itself within the physical infrastructure; it can be located within the city
where police perform document checks or racial profiling; it is located in the vehicle,
which as Walters shows, can amount to a mobile borderzone,
70
or as Shahram
Khosravi writes, the border can be embodied in a racialized person who is stopped
for border checks because of how they look.
71
The border therefore, together with
the laws operating there, is productive and shapes the type of societies we are living
in,
72
as discussed above in relation to the nation-state machine.
Meeting of laws
Law meets at the border, including the omnipresent and productive border
described above. The meeting of laws takes place when a certain law, such as
global or globalizing law, encounters national, local, or indigenous laws and
enters a negotiation as to which law in the consequence of this encounter is
accepted, rejected, or appropriated.
73
For legal anthropologists who work with
68 Spijkerboer, 455.
69 Achille Mbembe, Necropolitics, Theory in Forms (Durham: Duke University Press,
2019), 101; See also Ayelet Shachar, The Shifting Border: Legal Cartographies of
Migration and Mobility: Ayelet Shachar in Dialogue (Manchester: Manchester Uni-
versity Press, 2020).
70 Walters, ‘Migration, Vehicles, and Politics’.
71 Dr Shahram Khosravi, ‘Illegal’ Traveller: An Auto-Ethnography of Borders (Pal-
grave Macmillan, 2011).
72 Nail, Theory of the Border.
73 Von Benda-Beckmann, von Benda-Beckmann, and Griffiths, Mobile People, Mobile
Law,2.

Mobility as a quality of law 33
plurilegal systems, distinctions between different laws are crucial to study the
way how law meets other law, and how law also encounter social, political,
and economic domains across time and space.
74
“Transnational law becomes
part of social settings in which it not only competes with and shapes existing
state law, it competes with self-regulatory mechanisms, customary and some-
times religious law.”
75
The incoming law may find itself, therefore, in a setting
when it can, on the one hand, be considered distinct and foreign and therefore
rejected, while on the other hand become hybridized, creolized, or vernacular-
ized or absorbed into the existing legal structures.
76
The meeting of different
laws also emerges from the fact that people live multi-sited lives across national
borders where different aspects of their own lives are regulated by laws of dif-
ferent countries, according to rules of private international law. Law as such
becomes transnationalized; hence, creating hegemony, fragmentation, and
ambiguity, and functioning differently for some, who can negotiate between
laws while others are barred from pursuing their legitimate claims.
77
Therefore, law must be understood as not existing in abstract but in rela-
tionality between persons or persons and society, which encompasses processes
of law creation, expression, and transmission.
78
The relationality of law
encompasses not only the meeting of laws in one body but also the meeting of
people that embody laws in a certain space. Bodies encounter other bodies in a
lawscape (interplay between law and space), and this encounter affects their
rights.
79
The general question, then, which one can pose looking at transnational
law from the mobility perspective that is attuned to different positionalities of
legal subjects embodying different laws, is whether these laws meet well?
80
In liberal states, the meeting of laws in the lawscape has been regulated by
universal laws guaranteeing equality and non-discrimination. However, as
Hagar Kotef shows, the social contract is essentially a settler contract
81
– a
contract between rational and liberal subjects. All those who are not considered
rational and liberal, the savage or the Other has been excluded from the social
contract, which necessarily affects the meeting of laws. This also has con-
sequences for the right to mobility, which as we will see in the next chapter
Mobility as a right, is embedded in the concept of citizenship and produces a
distinction between liberal subjects engaged in orderly mobility and those
74 Ibid., 2.
75 Ibid., 9.
76 Ibid., 9–10.
77 Ibid., 18–19.
78 Dana Schmalz, Refugees, Democracy and the Law: A Deficit of Rights, Law and
Migration (Abingdon, Oxon; New York, NY: Routledge, 2020), 57; Nanda Oude-
jans, ‘The Right Not to Have Rights: A New Perspective on Irregular Immigration’,
Political Theory 47, no. 4 (August 2019): 465; Philippopoulos-Mihalopoulos, Spatial
Justice.
79 Philippopoulos-Mihalopoulos, Spatial Justice, 67.
80 Barr, A Jurisprudence of Movement, 43.
81 Kotef, Movement and Ordering of Freedom,2.

34 Mobility as a quality of law
whose mobility is produced and conceptualized as disorderly.
82
At the same
time, however, relationality of law carries in itself a potential for resistance as I
will show in Chapter 4.
Jurisprudence
Finally, the movement of law manifests itself in jurisprudence. For Olivia Barr,
who conceptualizes law and mobility in such a manner, jurisprudence is a
domain of thought concerned with “how to live with law, and how to create
and engage lawful relations.”
83
In other words, jurisprudence is concerned with
relations between bodies and laws that move and meet in space – that which in
the previous section was described as yet another element of mobility of law.
Law must be open enough to encompass these multiple relations but also must
be able to regulate and limit them. Together with the three perspectives on law
and mobility described above, jurisprudence which in itself embodies mobility
of law, allows us to understand even more clearly how does law move.
As Peter Fitzpatrick argues, the constant oscillation between laws’ stability
and responsiveness constitutes the quality of law.
84
On the one hand, law is a
tool of a nation-state, with the tasks of regulating, limiting, or, in general,
maintaining social order. The rule of law must be (at least has to be perceived
as) “coherent, closed and concrete.”
85
At thesametime, lawmustbeable to
react to new situations in order to be able to regulate or contain them. As
Fitzpatrick writes, “you cannot have a purely static determinate position (…)
The very effort to contain change and to appear constant requires respon-
siveness [emphasis in the text].”
86
In other words, law must look static in
order to fulfil the rule of law requirements. This feature, together with law’s
link to territoriality of a nation-state, contributes to why the mobility of law
remains hidden. But law also has to be flexible in order to encompass all new
situations – what is outside of it. It must take into consideration the com-
plexity and diversity of social relations in order to be able to adapt to it,
therefore the necessity to adapt excludes purely fixed and pre-existent law. As
Fitzpatrick writes
For law to rule, it has to be able to do anything – if not everything. It
cannot, then simply, secure stability and predictability but must also do
the opposite: it has to ensure that law is ever-responsive to change,
82 On differential mobility in relation to citizenship see for instance Dimitry Kochenov,
Citizenship, The MIT Press Essential Knowledge Series (Cambridge, Massachusetts;
London, England: The MIT Press, 2019).
83 Barr, A Jurisprudence of Movement, 81.
84 Fitzpatrick, Law as Resistance: Modernism, Imperialism, Legalism, 93.
85 Fitzpatrick, 93.
86 Fitzpatrick, 16.

Mobility as a quality of law 35
otherwise law will eventually cease to rule the situation, which has
changed around it.
87
Law that does not respond to new situations would be completely static, it
would turn, as Fitzpatrick argues, into a discipline, something to study rather
than a living law. At the same time, if law did not have features fulfilling the
rule of law criteria, it would stop being law and become mere politics.
88
The mobility of law becomes, therefore, an inherent quality of law. In their
book, Foucault’s law Golder and Fitzpatrick directly use the concepts of
movement or on the move when they write about law. They build their argu-
ment on the Michel Foucault’s concepts of discipline and generative co-depen-
dency of power and resistance, which I will discuss in more details in Chapter
4. As Golder and Fitzpatrick write, law, through jurisprudence, constantly
oscillates between total stasis and total movement, being consequently con-
stantly “on the move.
89
”Whilst law must assume a definite content, it cannot
remain tied to it and “must engage with what is other to it, with resistances and
transgressions which challenge its position.
90
”This happens through jur-
isprudence which is involved in creatively modifying existing legal principles or
inventing new ones to fit particular cases, introducing, as Paul Patton writes,
“movement into abstractions [emphasis mine]”.
91
If law, for Fitzpatrick, sub-
sists in between a determinate position and what is beyond it, then what moves
law is the antinomy between these dimensions, combined with their necessity
for each other that emerges from power and resistance co-dependency. “This is
a movement ever beyond what is determinately positioned ‘for the time being’,
yet also a movement of return to position, and it is in the decisive combining of
these movements that law assumes a determinate force.
92
”In the criticism of
Golder and Fitzpatrick’s analysis of law, Jacopo Martire writes, however, that
such understanding of law (as operating on the margins where the negotiation
for determinate position takes place by providing legitimacy to some phenom-
ena on the one hand and limiting their excesses on the other) is too reductive.
For Martire, law in modern societies takes a more important role. It does not
only operate at the margins determining what is included and what is excluded,
it is also central to power in a much deeper sense.
93
It constructs the universal
subject of law upon which biopolitical strategies can be efficiently enforced. At
87 Fitzpatrick, 93.
88 Fitzpatrick, 93.
89 Ben Golder and Peter Fitzpatrick, Foucault’s Law (Routledge-Cavendish, 2009), 78.
90 Golder and Fitzpatrick, 77.
91 Paul Patton, ‘Immanence, Transcendence, and the Creation of Rights’,in Deleuze
and Law, ed. Laurent de Sutter and Kyle McGee (Edinburgh: Edinburgh University
Press, 2012), 29.
92 Golder and Fitzpatrick, Foucault’s Law, 171.
93 Jacopo Martire, A Foucauldian Interpretation of Modern Law: From Sovereignty to
Normalization and Beyond (Edinburgh: Edinburgh University Press, 2019), 19.

36 Mobility as a quality of law
the same time, it recodifies this subject in a standardized fashion, “producing a
normalised population which can be reflected in the universality of law.”
94
I
will return to the discussion on universal subjectivity as created through law in
the section below. It is however important at this moment to highlight that
Martire’s perspective, even though critical of Golder and Fitzpatrick’s one, also
presupposes the mobility of law, where law is constantly adaptive to real
situations and responsive to its otherness.
95
Law as such becomes, therefore, mobile through jurisprudence and doing things
with law, revealing unsteady foundations below a superficially calm legal surface.
96
Alexandre Lefebvre argues that law has a mobile root that remains in constant
change to adapt to new societal desires and interests as they develop over time.
Judgments must necessarily be creative as they are based on these changing desires
or interests.
97
With this understanding, jurisprudence guarantees the creativity of
law and its ability to produce novel understandings and definitions that adapt rules
to desires.
98
Law responding to ever-changing interests and desires exemplifies for
Lefebvre a differential repetition. In such context, the rules of law have double
existence – both actual (the law in books) and virtual (the possibility of law as
adapted to new circumstances and according to what is legally important and
relevant).
99
Each judgment that evokes (or actualizes) the rule must reinvent itself
to respond to these interests and desires of contemporary society. “Each decision is
therefore, at least minimally, a differentiation of law in that it performs a double
and simultaneous adaptation of any rule according to both new situation and new
desires”
100
modifying a “tissue of law that becomes ever differentiated, ever
invented,over time[author’semphasis].”
101
In result, there is never only one pos-
sible outcome of the formal interpretation of law. This is visible for instance
within the field of European human rights and migration law. Thomas Spijkerboer
shows how jurisdiction of the European courts (ECtHR and CJEU) even though in
principle excludes colonial subjects from the full protection of human rights, does
not always result in such excluding outcomes. Therefore, naming and exposing the
underlying deep colonial structure orienting European human rights and migration
law not only allows for its critique but can also affect future jurisprudence by
affecting the outcome of formal interpretation of law.
102
94 Martire, A Foucauldian Interpretation of Modern Law, 105.
95 Martire, 139.
96 Barr, ‘An Homage to Legal Drips, Wobbles and Perpetual Motion’, 143.
97 Alexandre Lefebvre, The Image of Law: Deleuze, Bergson, Spinoza, Cultural
Memory in the Present (Stanford, Calif: Stanford University Press, 2009), 101.
98 Lefebvre, 106.
99 Lefebvre, 124, 145.
100 Lefebvre, 106.
101 Lefebvre, 106.
102 Thomas Spijkerboer, ‘Coloniality and Recent European Migration Case Law’,in
Migrants’ Rights, Populism and Legal Resilience in Europe, ed. Vladislava Stoya-
nova and Stijn Smet, 1st ed. (Cambridge: Cambridge University Press, 2022): 117–
138, 137.

Mobility as a quality of law 37
Golder, Fitzpatrick, Barr, and Lefebvre situate their analysis within the
common law tradition. Mobility, however, is a feature of law in the civil law
culture, and is visible in legislation and its consequences – it is a feature of
whichever language and legal culture we look at. As Olivia Barr argues
[t]his is because meanings move: they shift with time, within sentences and
between interpretive locations. This is not so much movement as destina-
tion but rather an acknowledgement of the relentless and rather ‘wobbly’
activity of movement within law and its legal meanings, as meanings shift,
sometimes subtly, sometimes drastically.
103
The interconnectedness of the four modes of movement of law described above
manifests itself in the relationship between mobility and spatiality. Law is always
embodied, and it does not exist somewhere in the abstract, it is not manifested
only in symbols and ideas but also, it needs to be carried by and within the bodies.
The legal system is, in other words, characterized by the relationship between
material and immaterial, as a field of knowledge, a space it operates in, as well as,
the bodies the movement of which it regulates.
104
Materiality, the embodiment of
law, is however often hidden from sight, and it appears as something else, such as
freedom, desire, choice, or preference.
105
As soon as freedom and choice stop being
abstract concepts and become situated in concrete bodies, their unequal operations
are revealed, which must be then hidden from sight to retain the impression of
universality. In what follows, I will investigate the implications of the mobility of
law for the movement of embodied human beings.
Implications of mobile law
Implications of mobile law for human mobility will be unpacked in the forth-
coming chapters of the book. In the remaining part of this chapter, I prepare
the grounds for further analysis and briefly investigate the role of law in the
creation of the universal mobile subject necessary for the functioning of the
nation-state. The universal subject of law is then problematized through scru-
tiny of its further concrete materializations in the lives of those who are moving
across international borders. This, then, allows looking into the methods and
strategies through which mobilities can affect or change law. The first point I
want to make is that a mobile turn in law allows the relationship between the
construction of a universal subject and coloniality, and how it plays out in the
case of human movement across borders to be made visible. The second point is
the relationship between mobile law and the different forms and ways of
understanding resistance.
103 Barr, ‘An Homage to Legal Drips, Wobbles and Perpetual Motion’, 143.
104 Philippopoulos-Mihalopoulos, Spatial Justice, 36.
105 Philippopoulos-Mihalopoulos, 69.

38 Mobility as a quality of law
Universal subject of modernity/coloniality
I approach the topic of construction of the universal mobile subject with refer-
ence to Michel Foucault’s work on law and subjectivity. Although the work of
Foucault has become paradigmatic for studies of subjectivity, it is claimed that
law has not been much present in his thought. However, as Jacopo Martire
argues in his recent book on the role of law in Michel Foucault’s thought,
Foucault’s law emerges as a primary tool of the normalising power relations.
106
As I argued above, law performs a crucial role for stabilization of the nation-
state. In particular, it codes the flow of people and sorts it into different cate-
gories such as citizen or a foreigner – in other words it normalizes them. From
the perspective of the nation-state citizen is a norm against which the status of
all other human beings is assessed resulting in their inclusion or exclusion. It is
important, therefore, to focus on the conditions of the legal construction of the
modern universal subject vested with rights and obligations, in order to apply
to it the mobility lens later on in this book. Jacopo Martire’s work on law in
Foucault’s thought is very helpful in setting the stage for turning the universal
subject mobile.
As Martire argues, law in Foucault’s thought is a sui generis apparatus
inscribing subjectivity within a triangle formed by power, knowledge, and
truth.
107
In concrete terms, modern law, on the one hand, makes possible the
workings of disciplinary or governmental power by prohibiting social divisions
and creating the universal subjects upon which the power (in a form of different
biopolitical strategies) can be efficiently enforced. On the other, discipline and
governmentality “constantly recodify the subject in a standardized fashion, thus
concretely producing a normalized population which can be reflected in the
universality of law.”
108
Law, therefore, has a crucial role for the production of
universal subjectivity and construction of the modern citizen as a universal
subject of rights and obligations.
109
Looking at subjectivity through the mobi-
lity lens, however, one can see that the mobile subject is differently positioned
and able to exercise their mobility depending on their citizenship, gender, class,
or race. What we need to ask, is how universal subjectivity, constructed with
the help of law, materializes itself concretely through this differential mobility?
In other words, what types of mobile subjects are constructed in law and jur-
isprudence depending on who and how is moving in the contemporary globa-
lized world?
For Martire, the principal problem with modern law that affects the position
of a subject lies in the mismatch between the normalising role of law and the
post-modern world that is not normalizable: “law creates the universal subject
of rights, who is reflected in the normal subject of biopolitical regimes, and vice
106 Martire, A Foucauldian Interpretation of Modern Law.
107 Martire, 105
108 Martire, 105.
109 Martire, 111.

Mobility as a quality of law 39
versa.”
110
There is however a “mismatch between what remains a fundamen-
tally normalizing legal discourse and an increasingly non-normalizable sub-
jectivity.”
111
For Martire, this constant movement between universalizing and
normalizing role of law comes to the fore, particularly in contemporary times
of liquid modernity. To be sure, it becomes particularly emphasized if looked at
through the lens of mobility. Due to the diversity of human subjects and
ongoing minoritization of the world
112
any normalizing attempt is poised to
fail, undermining the normalizing foundations of law. In effect, law becomes a
paradoxical apparatus that has been outgrown by the multitude of human
life.
113
Has there however always been a universal subject of law? For Martire, the
demise of the universal subject is connected to societies’ turn from disciplinary
to control. Unlike in disciplinary societies, where the aim was to order people
in time and space and make them seemingly homogenous, the individual in a
control society becomes a virtual entity characterized by never-ending potenti-
alities and in a never-ending process of self-creation and actualization. This
situation is certainly at odds with the normalising paradigm that informs
modern law.
114
To explain the turn to the control society and the crisis of
modern law, Martire highlights the crucial role of the Other – as the one
beyond the norm – in the construction of the modern subject that has been
embedded in modern law. Paradoxically, however, through its recognition and
access to rights, “[o]therness has started to progressively erode the image of
commonality upon which universalistic claims of liberal legalism rest – a phe-
nomenon accelerated by the rise of control society,”
115
leading to a fundamental
Otherness of everyone’slife.
116
This claim echoes what William Connolly calls
“the minoritization of the world,” where suddenly people living close to each other
are not anymore so similar but have different ways of life, views, identities, or
ethnicities contributing to the emergence of ontological differences.
117
Leaving aside the argument about the turn towards the control society,
however, it is crucial to keep in mind that it is not that the production of the
universal subject has been suddenly distorted by the proliferation of difference
in a contemporary globalized society. The diagnosis of the minoritization of the
world is in principle a Western one and emerges with the increased presence of
former colonial subjects in the global North. Martire himself points to the
figure of the Other, the production of which has been necessary for the
110 Martire, 3.
111 Martire, 3.
112 William E. Connolly, A World of Becoming (Durham, NC: Duke University Press,
2011), 60.
113 Martire, A Foucauldian Interpretation of Modern Law, 134.
114 Martire, 105
115 Martire, 105.
116 Martire, 132.
117 Connolly, A World of Becoming, 60

40 Mobility as a quality of law
construction of the universal subject. To be sure, the universal subject of law
has always been a myth in modern law.
118
In particular, the Other to the norm,
to which the modern law always refers to, has been inscribed into an embodied
(colonial or formerly colonial) Other who is excluded from humanity and
therefore, from becoming a subject of rights.
As Lucy Mayblin argues, modernity does not exist without coloniality.
119
The inclusion of coloniality into the discourse of modernity clarifies the con-
struction of the universal subjectivity as always non-universal (always
excluding the Other) and explains the implications of the dichotomy of mod-
ernity/coloniality for contemporary law. The development of the nation-state,
and in consequence, law, in modernity is inescapably linked with coloniality.
Nation states have been developed in relation to their otherness, in the same
way as law has been developed in relation to its otherness.
120
The Othered of
the nation has been the colonial, the savage, the uncivilized, and the creation
of the nation-state has to be understood in that context as co-existing with the
rejection and repression of the colonized people. This distinction has been
embedded in law, which as Jacopo Martire writes became in modernity the
crucial tool for subjectivation. Consequently, modern law has been an appa-
ratus of subjectivation where the universal subject was in principle a Eur-
opean liberal subject.
121
The European liberal subject of rights took their law
to the colonies and materially spread and inscribed law there,
122
andwithit,
the normalising subjectivity, deeming everyone else not encompassed by it. In
the colonies law has been involved in the ordering of the colonized and in the
distinction between the modern and the savage.
123
Even though, in principle in
the colonies, the Other was normalizable and, as such, could potentially be
included in the rights discourse, inclusion of all as subjects of rights would
abolish the existence of the Other and therefore cause a failure of the modern
notion of universality.
124
As Peter Fitzpatrick explains, modern imperialism
has committed to transform the colonized subjects into the same subjects as
the colonizers. At the same time, it has however constructed them as different,
backward, or savage. “The figure of the colonized is thus inherently dis-
sociated, called to be the same, yet repelled as different bound in an infinite
118 See for instance Fitzpatrick, Law as Resistance: Modernism, Imperialism, Legalism,
75; On a myth of equality between citizens, see Kochenov, Citizenship.
119 Lucy Mayblin, Asylum after Empire: Colonial Legacies in the Politics of Asylum
Seeking, Kilombo: International Relations and Colonial Questions (London; New
York: Rowman & Littlefield International, 2017), 26–27.
120 See Fitzpatrick, Law as Resistance: Modernism, Imperialism, Legalism,76
121 Hagar Kotef, Movement and the Ordering of Freedom: On Liberal Governances of
Mobility, Perverse Modernities (Durham, NC; London: Duke University Press,
2015).
122 Barr, A Jurisprudence of Movement, 133.
123 Fitzpatrick, Law as Resistance: Modernism, Imperialism, Legalism, 115
124 Fitzpatrick, 75.

Mobility as a quality of law 41
transition which perpetually requires it to attain what is intrinsically denied
to it.”
125
This reveals a paradox of the modern universal subject and the nation for the
construction of which the universal subject is needed. For the nation to be
universal, it has to exclude the Other and therefore fail in its universality.
126
The construction of the Other is therefore fundamental for the relationship
between modernity and coloniality and the impact of this relationship on the
legal production of the nation-state and the universal subject. As we can see,
therefore, the paradox of law, which Martire discusses as a paradox of the
control society, has always been inherently present and constitutive for the
foundation of modern law. What we are seeing in other words is not that sud-
denly during the shift from disciplinary to control society, the subject stopped
being universal and became liquid, full of potentialities, and constantly chan-
ging. This has arguably happened too. However, the subject of law has never
been universal. This is a crucial argument that helps to explain the differential
operation of modern law, which is primarily based on how the human subject
is understood in law. In other words, it is not that the colonized people have
been marked as different because they are different, but the colonial discourses
made them different and later coded them as such
127
in order to make them
constitutive to the modern law and the nation-state.
As already argued, the processes of coding colonized people as different
happened through the movement of law. Even though law has been linked to
the land and captured in the concept of sovereignty and territory, as well as in
the features of the rule of law – the stability, generality, and certainty – law has
been on the move and it still constantly moves in time and space in material
forms.
128
Olivia Barr shows how in Australia, law has been first moved through
the material processes of walking, camping, and burial to places that were pri-
marily excluded from the colonial jurisdiction. To show this, Barr redescribes
the narrative of the judgment of the New South Wales Court of Criminal
Judicature of R v. Powell (1799) dealing with the death of two Aboriginal
Darug boys, Lule Geo or Little George (11 or 12) and Jemmy (15 or 16) who
were killed as a result of the earlier killing of two settlers, Hodgkinson and
Wimbo. In R v. Powell case, the Court found five settlers guilty and convicted
them of murder, granting them, however, bail and referring the case further to
the Colonial Office.
129
The guilty were later acquitted. The circumstances of the
case are the following: Hodgkinson and Wimbo were killed in the woods
beyond the colonial frontier and a party was formed out of soldiers and settlers
to find their bodies and provide them with a decent burial. Even though the
125 Fitzpatrick, 75.
126 Fitzpatrick, 76.
127 Mayblin, Asylum after Empire, 37.
128 Barr, A Jurisprudence of Movement, 130.
129 Barr, 127.

42 Mobility as a quality of law
spread of colonial law has been very limited and hasn’t reached beyond the
settler frontier, it has moved there with the burial party. The imperial law has
been moved to the woods being embodied by the soldiers and settlers and
through the material instances of walking and camping with the dead men.
130
Redescribing the narrative of R v Powell Barr puts particular attention to the
where of the common law and poses important questions about the existence of
the jurisdiction of the Colonial Court. Did the common law already exist in the
woods beyond before the Court adjudicated the case? Or has it been retro-
spectively inserted there by the Court’s jurisdiction? Her conclusion is that the
burial party formed to retrieve the bodies of Hodgkinson and Wimbo has
through its walking moved law into the woods beyond. Barr writes:
A burial party walks, and as this burial party walks, common law moves.
(…) Through the common law imagining of the subject carrying common
law as they move, and through the utilization of jurisdiction as a relatively
low-level technology that attaches to the surface, I argue that the institu-
tion of common law occurs through the movement of the burial party as it
walks. Significantly, this is prior to the institutional marking of these events
through the exercise of jurisdiction by the Court of Criminal Jurisdiction in
R v Powell.
131
In other words “as the burial party walks laws of empire moves.”
132
In consequence, without the act of walking as a legal action, law would have
remained frozen and static as the authority, as sovereignty, and as territory.
133
Through the spread of jurisdiction by walking, however, the woods beyond
became homogenized and turned into a sedentary form of the Australian
nation-state and the subject became essentialized and othered. This is enshrined
in Olivia Barr’s narrative through the way in which the different bodies present
in the narrative were buried. The burial party was formed to retrieve the bodies
of Hodgkinson and Wimbo and provide them with a decent burial. However,
the bodies of the Darug boys were buried in shallow graves, then dug up and
left on the ground. By comparing the way the responsibility to bury the dead
has manifested itself in the case of different subjects, Barr asks the question
about the conduct of law: not only how does law move, but also can law move
well? In the case of R v Powell, the law clearly did not move well. It prioritized
the decent burial of the settlers but not of the Darug boys, especially as the five
accused settler men were ultimately acquitted. The judgment of R v Powell,
therefore, coded the difference between the settler and colonial subjects into the
law. Following indigenous scholarship whereby colonialism is rooted in the
130 Barr, 108–149.
131 Barr, 133.
132 Barr, 133.
133 Barr, 109.

Mobility as a quality of law 43
land and the dispossession of indigenous people,
134
the R v. Powell case shows
how the common law has moved beyond the imperial frontier and colonized the
earth, marking it as belonging to Australia. Through the colonization of the
land and the jurisdiction of the colonial court that followed, law has become
inscribed in the land and has stabilized and homogenized it into the nation-
state. Law’s movement to “the woods beyond” also contributed to the differ-
entiation between the settlers and the colonized, as exemplified in the burials,
and in the ultimate result of the R v Powell.
As I will show in the further chapters of the book, differentiation between
the settlers and the colonized, that problematizes the existence of the universal
legal subject, has also been inscribed in their capacity to move. I will show in
particular how the universal subject of law fails in light of further concrete
materializations of subjectivity of those who are moving across international
borders. To be sure, applying the mobility lens to the movement of law and the
creation of universal subject in modernity/coloniality reveals also an unequal
capacity of movement of the European modern liberal subject and the colonized
(or formerly colonized). The universal liberal subject was the one whose
important quality was defined by orderly movement. At the same time sub-
jectivity was denied to those considered to be moving in a disorderly fashion or
not moving at all. Chapters 2 and 3 of this book will delve deeper into the
construction of universal subject through law regulating citizenship and the role
of borders, and the processes of bordering for the nation-state, in particular by
applying the mobility lens to processes of inclusion and exclusion they perpe-
tuate. In the final section of this chapter, I will turn towards the implications of
the movement of law for conceptualising resistance.
Enabling resistance
Moving into the colonies and being inscribed into the land, in other words,
being stabilized in the territory, as well as affecting the unequal capacity to
move of settler and colonized subjects, is however only one side of the story of
the mobility of law. For there is a potentiality in the movement of law as all
stabilities are necessarily temporary. Homogenizing, macro perspective, is
rooted in the forms and entities such as the nation-state, that are perceived as
static and sedentary, as argued above. In turn, mobility does not produce
essences. So, in the end, through the flows and leaks of law, through the
movement of people, the meeting of laws, or the movement of law in jur-
isprudence, new understandings and operations of concepts can be created. For
instance, unlike in the case of the burials in R v. Powell where the rights of the
colonized Darug boys were ultimately abandoned, the burial, and the obligation
134 See for instance Clifford Atleo and Jonathan Boron, ‘Land Is Life: Indigenous Rela-
tionships to Territory and Navigating Settler Colonial Property Regimes in Canada’,
Land 11, no. 5 (21 April 2022): 609.

44 Mobility as a quality of law
to attend to the dead can result in mobilizations around the recognition of
persons’ legal status and challenges of the exclusionary laws.
135
Therefore,
another side of the story of the movement of law is the potential of resistance
that it generates. To be sure, the mobility of law cannot be analysed without
reference to the otherness and the outside but also to resistance to the othering
and excluding role of law. Thinking about law through the perspective of
movement allows the imagining of alternative ideas and solutions.
Peter Fitzpatrick has been writing about law’s potential for resistance exten-
sively. As I discussed already, for Fitzpatrick, law constantly moves between the
narrow and the broad interpretation of the norm. Mobility as resistance needs
to be analysed in light of this movement and law’s relationship with what is
other to it. As Fitzpatrick writes:
I have argued that we can better understand law as resistance if we see it in
two dimensions. With one, law assumes a unified identity surpassing social
relations. With the other, law is created in its integration with the diversity
of social relations. This relational dimension of law supports resistance,
but they can be undermined by law in terms of its surpassing dimension.
However, the relational dimension of law returned the favour, as it were. It
served to demarcate limits on law in its surpassing dimension. Law proved
to be a potent mode of resisting law.
136
What this means is that resistance in law is embedded in the movement as a
quality of law. Yet, the movement as differential repetition constantly oscillates
between limitation and regulation on the one hand and expansion on the other.
Law surpasses law and resists law in a process of constant negotiation that
takes place in jurisprudence, in the way how law is interpreted and applied
daily. Sometimes, law can expand our understanding of social reality and pro-
vides us with emancipatory possibilities, and sometimes it narrows down our
worlds and limits our rights. The scope of the possible resistance depends on
the positionality of the person and whether the person is considered to move in
an orderly and disorderly fashion.
Other modes of law’s mobility discussed in this chapter too carry various
potential for resistance against law. For instance, mobility as resistance is
rooted in the act of movement itself. Crossing international borders against the
law challenges the impermeability of borders and shows that human movement
ultimately cannot be controlled. But movement of people also means movement
of different laws and norms across the globe, that can affect the law in the place
of arrival but also in the place of departure. In particular, the mobile subjects
135 Kim Rygiel, ‘Dying to Live: Migrant Deaths and Citizenship Politics along European
Borders: Transgressions, Disruptions, and Mobilizations’, Citizenship Studies 20,
no. 5 (2016): 545–560.
136 Fitzpatrick, Law as Resistance: Modernism, Imperialism, Legalism, 39.

Mobility as a quality of law 45
bring with them the knowledges gained through mobility that not only can be
included in the process of law-making but also contribute to the construction of
new forms of belonging. Increased attention to knowledges and epistemologies
from the global South can problematize the one-sided understanding of law as
supporting the interests of the global North. In turn, the meeting of laws can
help inscribe relationality into law bridging the gap between different laws,
different legal categories, and legal positionalities. This may happen for
instance, through emphasising shared rather than differing features of various
subjects. Finally, differential repetition of law can create a space in between the
openness and closeness of law shifting attention to the potentiality of the ten-
sion between the actual and the possible.
137
As Olivia Barr writes;
Yet if we want colour in our worlds, if we want to notice the life in our
pulsing blood, it is important to pay legal attention to the ever-motion of
law’s movements. In turn (…) it becomes possible to rethink law, and
rethink contemporary legal thought. This is the promise of movement. This
is the promise of law.
138
I will discuss these potentialities for resistance more closely in Chapter 4.
To emphasize, however, the mobility of law which can provide tools for
resistance and emancipatory change is not per se emancipatory. Even though
the emancipatory potential is clearly present in law, it is not a given. For
movement is not the same as progress or advancement. Movement in law is at
best ambivalent – the mobility of law is simply a feature of law. But the
movement of law may not be proceeding onwards, or in a specific direction, or
towards a particular place.
139
The movement of law in jurisprudence always
responds to the time and desires of society and these sentiments affect the
direction towards which law moves. This is visible in how legal concepts are
differently understood in different contexts, and how they are modified by
events or shifts in what is accepted socially.
Conclusions
This chapter introduced the concept of mobile law and challenged the common
perception of law’s stability as caused by its relationship with the territorial
nation-state and its position within the democratic government as a rule of law.
I showed how the linkage of law with the nation-state and the state territory
results in stabilising and solidifying law. At the same time, the perception of
law’s stability is constitutive to the production and the maintenance of the
137 Nanda Oudejans, ‘The Right Not to Have Rights: A New Perspective on Irregular
Immigration’, Political Theory 47, no. 4 (August 2019): 447–474, 459.
138 Barr, ‘An Homage to Legal Drips, Wobbles and Perpetual Motion’, 146.
139 Barr, A Jurisprudence of Movement, 67.

46 Mobility as a quality of law
perception of stability of the nation-state. In addition, the features of the rule of
law, where law has to be clear, stable, public, and universal, hide the mobility
of law through construction of the universal subject of law. Stability of law is
therefore, a disguise that needs to be revealed by applying mobility lens to law.
In the first section of this chapter, I applied the mobility lens to the relationship
between law and the nation-state, using the concept of the nation-state machine.
Nation-state emerges here as an unstable entity produced through the processes of
discursive and non-discursive practices of homogenization and stabilization. Law
performs a crucial role in this process as one of such discursive practices.
Revealing the unstable quality of the state, however, contributes also to the
shift of perception of law as mobile.
In the second part of the chapter, I discussed different but interrelated ways
of understanding law as mobile, such as the embodiment or movement of law
by both people and transnational organizations; embeddedness of movement in
law’s interactions with other laws as well as with society, politics, and the
economy; and mobility as a quality of law. All these approaches shift the focus
from the objective and universal rules and regulations to concrete cases, concrete
legal decisions, and concrete bodies.
In the last part of the chapter, I analysed the implications of the shift from
stability to mobility of law. I showed that focus on mobility of law allows, in
particular, for unsettling the universality of the legal subject and bringing to
attention the inequality of movement of persons based on their citizenship, race,
gender, or wealth. Setting law in motion has been also necessary for bringing into
light the possibility of resistance and imagination of alternative legal futures. The
analysis in this chapter provides, therefore, theoretical underpinnings for further
analysis, that will allow me to delve more deeply into different aspects of
the complex and multifaceted relationship between law and mobility. In the
following Chapters 2 and 3 I will analyse how mobility is inscribed in the
concepts of citizenship and borders and how these concepts use mobility as a
tool for (re)production of the nation-state.

Chapter 2
Mobility as a right
Introduction
The chapter is interested in legal mechanisms producing mobilities and immo-
bilities, contributing to the emergence of mobility as a right. In this chapter and
Chapter 3, I critically analyse the role of law in relation to human mobility,
which is traditionally understood as regulating the substantive and procedural
conditions for movement and residence within and across national borders. I
show how a shift of perspective – from the content of legal rules and proce-
dures to their productive function reveals how law constructs both mobilities
and immobilities. By focusing on mobility as a right in Chapter 2 and mobility
as a violation of law in Chapter 3, this book follows the distinction between
orderly and disorderly mobility and shows how this distinction has been con-
structed in law, including human rights law, and is supported by the global
mobility infrastructure. Together with Chapter 1, Chapters 2 and 3 also show
how a shift of perspective from static to mobile reveals the primary instability
of institutions currently constitutive of orderly human mobility – that of a
nation-state, citizenship, and borders – and how they remain in a constant
process of construction and deconstruction, impacted by a shifting dynamic of
mobility.
The focus of this chapter is on mobility as a right guaranteed and enhanced
by the global mobility infrastructure, including good citizenship.
1
I start with
the analysis of the role of citizenship for the right to the freedom of movement,
its history, and its contemporary application. In international human rights
law, the right to leave any country is asymmetric and does not correspond with
the right to enter any country, except one’s own. However, the right to leave
may be limited in certain circumstances within the national legislation (for
instance in the case of ongoing criminal procedure), and, at the same time,
human rights or refugee law imposes certain obligations on states concerning
non-citizens appearing at their borders (as for instance the obligation to non-
See for instance Dimitry Kochenov, Citizenship, The MIT Press Essential Knowl-
edge Series (Cambridge, Massachusetts; London, England: The MIT Press, 2019),
174.
DOI: 10.4324/9781003254966-3
This Chapter has been made available under a CC-BY-NC-ND 4.0 license.
1

48 Mobility as a right
refoulement). I will demonstrate, the right to the freedom of movement is
rooted in the modern/colonial concept of citizenship that has emerged as a
norm, against which all other forms of legal status are currently being assessed,
2
and which, in consequence, affects the ability or the inability to move.
In line with the methodological approach of the book, I problematize what is
traditionally called the right to the freedom of movement and show how the
shift from the content to the productive function of law warrants calling it
mobility as a right instead. From this perspective, mobility as a right, together
with corresponding immobility, is managed and controlled through the con-
struction of the institution of citizenship.
3
Following Nail’s theory of kinopo-
litics, I approach citizenship as only temporary stability that fluctuates
constantly in every polity.
4
Citizenship is an institution that has been histori-
cally constructed through the rules, including human rights law, governing the
residence and movement of people between territories and through borders,
created through the inclusion of some and exclusion of others, what Nail calls
an expansion by expulsion.
5
I draw my analysis of citizenship from Hagar
Kotef’s genealogy of liberal subjectivity based on regulated and orderly move-
ment as a condition for belonging.
6
In consequence, as Dimitri Kochenov
argues, citizenship does not guarantee inclusion but rather undermines the idea of
universal equality by differential belonging, by justifying exclusion and normal-
ising discrimination.
7
By looking at citizenship through the lens of immobility I
show how citizenship has been gendered, racialized, or minoritized, and how these
facets affect the contemporary right to the freedom of movement.
In the first part of the chapter, I focus on the right to the freedom of move-
ment as ordered, stable, and rooted in territorially constructed citizenship, and
argue for the conceptual shift from the freedom of movement to mobility as a
right. In the second part of the chapter, I analyse what this conceptual shift
reveals: the productive function of international and national legal regulations
on obtaining and losing citizenship that sets conditions for the mobility of some
and immobility of others. As case studies, I use two sets of rules that recently
gained prominence (1) allowing acquiring citizenship through investment, and
(2) allowing removal or revocation of citizenship in the case of terrorist suspects
or more generally when it is conducive to the public good.
2 Magdalena Kmak, ‘The Right to Have Rights of Undocumented Migrants: Inade-
quacy and Rigidity of Legal Categories of Migrants and Minorities in International
Law of Human Rights’, International Journal of Human Rights 24, no. 8 (2020):
1201–1217.
3 Kochenov, Citizenship, 16.
4 See also Kochenov, 27.
5 Thomas Nail, Being and Motion (New York, NY: Oxford University Press, U.S.A.,
2019).
6 Hagar Kotef, Movement and the Ordering of Freedom: On Liberal Governances of
Mobility, Perverse Modernities (Durham, NC; London: Duke University Press,
2015).
7 Kochenov, Citizenship,8

Mobility as a right 49
In this chapter and throughout the book I use the concept of citizenship
rather than nationality. While these two are often used interchangeably, the
latter is commonly referred to in public international law and the former is
more frequently used in national legislation.
8
Historically, citizenship served to
describe residents of metropolitan territory of colonial powers, and nationality
was used to describe the inhabitants of colonial territories. Only citizens had
the right to reside and execute their political rights in the metropolitan terri-
tory
9
The word citizenship, therefore, better corresponds to the aim of this
chapter as it refers to the legal status of membership in a polity and access to
rights, including the right to the freedom of movement.
10
It is therefore also
more suitable for the discussion of mobility as a right of primarily Western or
well-off citizens, emphasising its inherent inequality and legacy linked to
colonialism.
11
From the freedom of movement to mobility as a right
In traditional international migration law, freedom of movement has been
celebrated as the “first and most fundamental of human liberties”
12
that is
indispensable for the free development of a person. Understood as such, the
freedom of movement has been analysed in contemporary public international
legal scholarship with reference to the writings of authors such as Bodin, Gro-
tius, Vattel, Puffendorf, Vittoria, Locke, and Rousseau that saw it as grounded
in international morality and supportive of state sovereignty.
13
For instance
early modern Spanish academic Francisco de Vitoria argued for the right to
travel and live in other countries that cannot be prevented by the native popu-
lation of these countries.
14
To be sure, the pronouncements of the freedom of
movement were aimed at supporting colonial expansion of European states and
the authors in question often worked as legal advisors for these states or, as
8 Dana Schmalz, Refugees, Democracy and the Law: A Deficit of Rights, Law and
Migration (Abingdon, Oxon; New York, NY: Routledge, 2020), 48.
9 Ivan Shearer and Brian Opeskin, ‘Nationality and Statelessness’,inFoundations of
International Migration Law, ed. Brian Opeskin, Richard Perruchoud, and Jillyanne
Redpath-Cross (Cambridge: Cambridge University Press, 2012), 95–96.
10 Kochenov, Citizenship,2–3.
11 Thomas Spijkerboer, ‘Marathon Man and “Our European Way of Life”’, Open-
Democracy (blog), 27 October 2020, https://www.opendemocracy.net/en/can-europ
e-make-it/marathon-man-and-our-european-way-life/ (accessed 18.12.2022).
12 Richard Perruchoud, ‘State Sovereignty and Freedom of Movement’,inFoundations
of International Migration Law, ed. Brian Opeskin, Richard Perruchoud, and Jil-
lyanne Redpath-Cross (Cambridge: Cambridge University Press, 2012), 126.
13 Perruchoud, ‘State Sovereignty and Freedom of Movement’, 126.
14 Karin de Vries and Thomas Spijkerboer, ‘Race and the Regulation of International
Migration. The Ongoing Impact of Colonialism in the Case Law of The European
Court of Human Rights’, Netherlands Quarterly of Human Rights 39, no. 4
(December 2021): 291–307, 293.

50 Mobility as a right
Grotius, for colonial enterprises such as the United East Indian Company.
15
Freedom of movement became in the thoughts of those thinkers ‘a right limited
only in certain cases, to prevent harm to natives.
16
Colonial subjects, through
the right to metropole citizenship were included (nominally) in the freedom of
movement but their citizenship cannot be compared to that of colonizers.
17
Similarly, as Hagar Kotef shows, their movement was conceptualized as differ-
ent or worse from that of Europeans.
18
Kotef argues in Movement and Ordering of Freedom
19
that mobility and
movement linked with coloniality played a crucial role in shaping modern lib-
eral subjectivity. Kotef shows, how historically, the liberal (colonising) subject
could not have been separated from its corporeal dimension – the capacity for
movement – which together with other conditions, such as material, racial,
geographic, and gender, linked freedom to the movement of only some sub-
jects.
20
Within such understood liberal freedom of movement, mobility became
an ordered or stable movement, leading to the formation of a liberal subject as
epitomising an ordered freedom.
21
At the same time, other(ed) subjects, “Afri-
can, indigenous Americans, or Asians, as well as women or paupers, keep
appearing in the texts of liberal thinkers as either too stagnant or too mobile,”
thus, not fitting into the European liberal subjectivity.
22
Unequal national and
global mobility has been considered incompatible with liberal and democratic
ideas that are embedded in the concept of citizenship,
23
Kotef shows how these
inequalities are not an exception from the liberal freedom of movement, but its
part and parcel and are linked with colonial expansion.
Unequal capacity for movement as linked with colonialism and racial sub-
jugation has oriented the contemporary understanding of the freedom of move-
ment.
24
During the process of decolonization, the right to metropole citizenship
became gradually removed and the former colonial subjects were turned into
(undesired) foreigners.
25
The unequal capacity for movement as a feature of Eur-
opean liberal subject, remained however a distinctive feature of contemporary
15 de Vries and Spijkerboer, 293–295.
16 de Vries and Spijkerboer, 296.
17 Kochenov, Citizenship,8.
18 Kotef, Movement and the Ordering of Freedom,9.
19 Kotef, Movement and the Ordering of Freedom.
20 Kotef, 5.
21 Kotef, 9.
22 Kotef, 9.
23 Ayelet Shachar, The Birthright Lottery: Citizenship and Global Inequality (Cam-
bridge, Mass: Harvard University Press, 2009); Linda Bosniak, The Citizen and the
Alien: Dilemmas of Contemporary Membership, (Princeton, NJ: Princeton Uni-
versity Press, 2008).
24 Kochenov, Citizenship, 99.
25 de Vries and Spijkerboer, ‘Race and the Regulation of International Migration. The
Ongoing Impact of Colonialism in the Case Law of The European Court of Human
Rights’, 198.

Mobility as a right 51
mobility, rooted in differential concept of citizenship. Indeed, also today, the
Western citizen is generally the most mobile, but their mobility is regulated and
often related to stability and sedentarism,
26
and is constitutive of liberal commu-
nities as nations and states.
27
The freedom of movement that is understood as an orderly and regulated
mobility has; therefore, not only gained ideological and political importance
(with the premises and conditions changing throughout the centuries as shown,
for instance, by John Torpey in The Invention of the Passport
28
) but has con-
sequently also developed into a right in international law.
29
The principle of the
freedom of movement has been included in contemporary human rights instru-
ments, in particular, article 13 of the UDHR
30
and has been later included in
numerous other human rights treaties.
31
The principle of free movement has
been traditionally understood in international law as being composed of three
elements: 1) the right to leave any country, including one’s own; 2) the right to
enter or return to own country; and 3) the right of everyone “lawfully within
the territory of a State to enjoy the liberty of movement and freedom to choose
his or her residence within that territory.”
32
Therefore, it is clear that in such
an understanding, the right to the freedom of movement is not symmetrical,
and a right to leave any country does not correspond to the right to enter a
country of choice, except only ones’ own country. Moreover, only those law-
fully residing in the country are granted the freedom to move and can have a
choice of the place of their residence. In order to understand better the
inequality of the freedom of movement it is important to turn to the definition
of the concept of one’s own country, that is tightly related with the concept of
citizenship.
Own country
The concept of “his or her own country,” rooted in statehood and citizenship,
becomes, therefore, crucial for shaping the right to the freedom of movement,
pointing to its territorialism and sedentarism. Citizenship’s link with territory
33
26 Kotef, Movement and the Ordering of Freedom, 10; see also Didier Bigo and Elspeth
Guild, ‘Policing in the Name of Freedom’ in Controlling Frontiers: Free Movement
into and within Europe (London: Routledge, 2016), 3.
27 Catherine Dauvergne, Making People Illegal: What Globalization Means for
Migration and Law (Cambridge University Press, 2008), 44.
28 John C. Torpey, The Invention of the Passport: Surveillance, Citizenship and the
State (Cambridge: Cambridge University Press, 2000).
29 Perruchoud, State Sovereignty and Freedom of Movement, 129.
30 1) Everyone has the right to freedom of movement and residence within the borders
of each State; 2) Everyone has the right to leave any country, including his own, and
to return to his country.
31 See for instance article 12 of the ICCPR or article 1, protocol 4 to the ECHR.
32 Perruchoud, State Sovereignty and Freedom of Movement, 129.
33 Article 1of the Montevideo Convention on Rights and Duties of States, 1933.

52 Mobility as a right
has been based on the dependence of the states (that emerged as principal right
holders on their territories) on the original title to the territory held by their
people.
34
The state, in turn, granted the people access to a territory (and later
formal and substantive rights) through the institution of citizenship. At the
same time, however, the development of states depended on obtaining from its
citizens the means necessary for the states’ own reproduction. In consequence,
states monopolized the regulation of the right of entry and residence of citizens
in their own territory in order to control their means and resources.
35
Citizen-
ship; therefore, does not only define the position of a person in the state of
residence, their rights, and obligations. Rather, in the context of the freedom of
movement, citizenship also defines their ability to travel abroad and to return
back to their own state.
36
It is, therefore, a meaningful category of membership
that is part and parcel of a world organized around statehood and territorial
sovereignty, which is a basis for security, identity, and opportunity
37
as well as
the right to the freedom of movement. To be sure, the mobility lens allows us
to perceive the essence of citizenship as the determinant of the rights to enter,
reside and not to be deported from a particular territory.
38
In international law, the obligations towards one’s own citizens are not in prin-
ciple extended to non-citizens, against whom the state may exercise its rights with-
out limits resulting from any prior rights such as the original title for the territory.
39
Consequently, the definition of a state in international law is based not only on the
relationship between the government and the people within its borders, but also on
the distinction between citizens and foreigners, those with the right to reside and
those whose right to enter and reside is subjected to the sovereign power of states.
Citizenship, therefore, emerges as an analytically divided concept, that represents
both the internal relations of the national community and the need to maintain its
boundaries. Understanding this double function of citizenship requires, as Linda
Bosniak points out, “making sense of the endless interplay between commitments to
inclusion and boundedness in national discourse and institutions.”
40
This divided-
ness also forms the basis of the principle of freedom of movement as accompanied
by the doctrine of sovereign migration control.
41
Foreigners, unlike citizens, are not
34 Enrica Rigo, ‘Citizens despite Borders: Challenges to the Territorial Order of
Europe’,in The Contested Politics of Mobility: Borderzones and Irregularity, ed.
Vicki Squire (Abingdon, Oxon; New York: Routledge, 2012), 211.
35 Torpey, The Invention of the Passport: Surveillance, Citizenship and the State, 13.
36 Perruchoud, State Sovereignty and Freedom of Movement, 93.
37 Ayelet Shachar, ‘The Birthright Lottery: Response to Interlocutors’, Issues in Legal
Scholarship 9, no. 1 (24 January 2011), 1.
38 Kochenov, Citizenship, 126.
39 Rigo, ‘Citizens despite Borders: Challenges to the Territorial Order of Europe’, 155.
40 Linda Bosniak, ‘Making Sense of Citizenship’, Issues in Legal Scholarship 9, no. 1
(24 January 2011), 3.
41 de Vries and Spijkerboer, ‘Race and the Regulation of International Migration. The
Ongoing Impact of Colonialism in the Case Law of The European Court of Human
Rights’, 300.

Mobility as a right 53
able to claim the countries as their own, and in consequence claim the full right to
enter and reside on their territory, with limited exceptions defined as “special ties” or
“close and enduring connection” with these countries,
42
or derived from the human
rights instruments, most important of which is the prohibition of refoulement.
43
The
right to the freedom of movement, emerges, therefore, as a stable and ordered insti-
tution, dependent on the preceding allocation of people among territorial states,
primarily through the institution of citizenship, coupled with the recognition of the
extended sovereign right of states to control entry and residence of foreigners within
their territory.
Mobility as a right
This international legal system of the freedom of movement constitutes a
blueprint for orderly mobility and, consequently, access to legal protection.
This system however has its roots in modernity/coloniality which is char-
acterized by the inequality of citizenships among states. Based on the formal
equality of states in international law, citizenships of all states should be
equal for the purpose of the freedom of movement and the citizens of these
states should be able to benefit from the right to the freedom of movement
without discrimination. In practice, inequality among citizenships sig-
nificantly limits the ability to move by the majority of people around the
globe. The operation of what Ayelet Shachar calls a “birthright lottery”–
the political membership allocation system that is based on birth – results in
unequal distribution of the basic life chances around the globe as well as
unequal access to the freedom of movement and opportunity of mobility,
that remains regulated and constrained by the global mobility infrastructure,
including borders and passports.
44
Coupled with the visa regimes and other
mobility restrictions primarily targeting citizens of former colonies,
45
the
birth right citizenship effectively immobilizes a significant part of the global
world population while promoting or even speeding up the mobility of
others,
46
usually citizens of Europe, the Anglophone West, and some of the
East and South-East Asian countries such as Japan, Singapore, Malaysia, or
42 See however the General Comment no. 27 of the Human Rights Committee: CCPR
General Comment No. 27: Article 12 (Freedom of Movement).
43 See for instance Cathryn Costello, The Human Rights of Migrants and Refugees in
European Law, Oxford Studies in European Law (Oxford, UK: Oxford University
Press, 2016).
44 Shachar, ‘The Birthright Lottery’, Kochenov, Citizenship, 49.
45 Spijkerboer, ‘Marathon Man and “Our European Way of Life”’. Thomas Spijker-
boer, ‘The Global Mobility Infrastructure: Reconceptualising the Externalisation of
Migration Control’, European Journal of Migration and Law 20, no. 4 (29 Novem-
ber 2018): 452–469.
46 Katja Franko Aas, ‘“Crimmigrant” Bodies and Bona Fide Travelers: Surveillance,
Citizenship and Global Governance’, Theoretical Criminology 15, no. 3 (August
2011): 331–346.

54 Mobility as a right
South Korea.
47
In consequence, the mobility of citizens of some countries
across the globe is facilitated with such measures as visa waivers, special
mobility arrangements, or fast-tracking at the border crossing points for the
holders of certain biometric passports. In turn, the great majority of the
global South, former colonies and former socialist states (except those who
joined the EU) experience various levels of obstacles for their mobility
48
and
in consequence are unable to access the territories of the global North as
they need visas that are often very costly and with a limited chance of
receiving one upon application.
49
As the Guardian columnist Nesrine Malik
writes “[t]he passports at the top of the Henley index allow the holder to
visit almost 200 countries without securing a visa in advance. The lower
down, like the Sudanese one I was born with, must pass through the eye
of a needle before being permitted to enter the majority of countries.
Applicants face almost unscalable walls of bureaucracy and suspicion,
comical demands for paperwork and, often, humiliation and refusal.”
50
The almost complete control over access to the global mobility infra-
structure is shown; for instance, by only three out of 10,000 passengers
arriving at European airports from outside of the EU arrive without the
necessary documentation.
51
Importantly, in this context, citizenship, not only determines the conditions
for the regulated and orderly movement of people among nation-states, but it is
also characterized by the mobility of the minority, and immobility of the
majority of the human population.
52
Citizenship also allows for forceful re-
allocation of those who remain outside the limited right to the freedom of
movement (those who move in a non-orderly fashion) back to their assigned
states. William Walters calls this practice a technology of citizenship; the aim of
which is “the compulsory allocation of subjects to their proper sovereigns” and
maintenance of a vision of the world as divided into national communities.
53
Taking this point of view means that the legal and normative framework of
citizenship, and in consequence the freedom of movement, depends in practice
47 ‘The Henley Passport Index’, accessed 24 August 2022, https://www.henleyglobal.
com/passport-index/ranking.
48 Kochenov, Citizenship, 128.
49 Thomas Spijkerboer, ‘The Global Mobility Infrastructure: Reconceptualising the
Externalization of Migration Control’, European Journal of Migration and Law 20,
no. 4 (29 November 2018): 452–469, 458.
50 Nesrine Malik, ‘Only a Country as Complacent as the UK Could Give up Its Border
Privilege so Easily’, The Guardian, 8 January 2022, https://www.theguardian.com/
commentisfree/2022/aug/01/uk-border-privilege-low-ranking-passport-brexit-interna
tional-travel (accessed 18.12.2022).
51 Spijkerboer, ‘The Global Mobility Infrastructure’, 461.
52 As shown by UN Population Division migrants constitute 3.6% of global
population.
53 William Walters, ‘Deportation, Expulsion, and the International Police of Aliens’,
Citizenship Studies 6, no. 3 (2002): 265–292, 282.

Mobility as a right 55
not only on formal membership in a state, but also on the measures taken to
control migration, such as expulsion or deportation.
54
The technology of citizenship, together with border technology as based on
the doctrine of sovereign control of migrants (which I am going to describe in
more details in Chapter 3) serves to manage the mobility of groups already
separated into citizens and foreigners. This is done by the process of sorting,
ranking, and then filtering mobility into a differentiated hierarchy of more or
less permissible and more or less prohibited mobilities
55
contributing to the
perceived stability of the nation-state machine,
56
which through expansion by
expulsion
57
produces and reproduces various types of legal entities, such as
citizens, desired foreigners, refugees, or irregular migrants, that remain in a
dynamic relationship to one another. The stability is constructed through the
normalising concept of citizenship, against which all other legal statuses are
being assessed, resulting in inclusion of some and exclusion of others.
58
The
normalising citizenship requires, at the same time, these others to function.
59
However, the Others do not exist outside the state and are often a necessary
part of it.
60
Citizenship, therefore, should be defined in relation to otherness
that encompasses the multiplicity of relationships between different groups.
61
In
particular, citizenship defined in this way is based on the assumption that some
are law-abiding, honourable; therefore, more valuable, and better, as opposed
to those considered to be strangers, outsiders, or bad citizens
62
towards whom
various measures are being undertaken in order to limit or expedite their
mobility. Brubaker calls this technology of citizenship “a powerful instrument
of social closure”
63
with its internal and external dimensions. Whereas the
54 Bridget Anderson, Matthew J. Gibney, and Emanuela Paoletti, ‘Citizenship, Depor-
tation and the Boundaries of Belonging’, Citizenship Studies 15, no. 5 (2011): 547–
563.
55 Simone Abram et al., ‘The Free Movement of People around the World Would Be
Utopian: IUAES World Congress 2013: Evolving Humanity, Emerging Worlds, 5–10
August 2013’, Identities 24, no. 2 (4 March 2017): 123–155, 146.
56 Gilles Deleuze and Felix Guattari, Anti-Oedipus: Capitalism and Schizophrenia,
trans. Robert Hurley, Mark Seem, and Helen Lane, 6th printing (London: The
Athlone Press, 2003), 142.
57 Thomas Nail, The Figure of the Migrant, 1 edition (Stanford, California: Stanford
University Press, 2015); Thomas Nail, Theory of the Border (Oxford; New York:
Oxford University Press, 2016); Nail, Being and Motion, 120.
58 Kmak, ‘The Right to Have Rights of Undocumented Migrants: Inadequacy and
Rigidity of Legal Categories of Migrants and Minorities in International Law of
Human Rights’.
59 Engin F. Isin, Being Political: Genealogies of Citizenship (Minneapolis: University of
Minnesota Press, 2002), 4.
60 Isin, 30.
61 Isin, 29.
62 Isin, 35–36.
63 Rogers Brubaker, Citizenship and Nationhood in France and Germany, 6. print
(Cambridge, Mass.: Harvard Univ. Press, 2002), x.

56 Mobility as a right
internal dimension is based on the inclusion of citizens who are granted privi-
leges in contrast to foreign residents, the external dimension is based on an
exclusion that allows states inter alia, to draw a line between citizens and
potential immigrants.
64
It becomes clear, considering this analysis, that the right to the freedom of
movement as defined in international law, means in practice that mobility is a
right (or even a privilege) of citizens of some states that can practice orderly
and regulated mobility. Such mobility is juxtaposed to immobility or forced
(expedited) mobility of (often gendered, racialized, or minoritized
65
) others.
The conceptual shift from migration to mobility in studying law regulating
movement allows also to fully capture this operation of a technology of citi-
zenship which is productive of both mobilities and corresponding immobilities.
In what follows, I focus on the normative aspect of citizenship, its acquisition
and loss, and, in particular, the most recent development of national and
regional regulations shifting the direction of the development and the meaning
of technology of citizenship, which in consequence, contribute to further
strengthening of mobility as a right of only some.
The changing law on citizenship
Ayelet Shachar calls citizenship perhaps the most important goods and oppor-
tunity-allocating institution of the modern era. As she emphasizes, however,
citizenship is not a natural phenomenon, –“Rather, it is a human-made regime
of legal entitlement that our citizenship laws perpetuate and then disguise under
the cloak of a natural given.”
66
Similarly, Enrika Rigo points out that the order
of citizenship linked with the nation-state territory has always been an artificial
construction and cannot be limited to natural facts such as birth within a par-
ticular geographic area.
67
To be sure, citizenship has been more and more dis-
connected from territoriality and access to rights.
68
Yet, citizenship continues
counterfeiting its stability and abstract equality through its insistence on the
link with presumably equal status of states in international law as well as
national values or political community.
As discussed above, birth remains a dominant way of acquiring citizenship,
but the concrete rules for its acquisition, determined by the nation-states, con-
stantly change around the globe.
69
I will not focus in detail on the dominant
64 Torpey, The Invention of the Passport: Surveillance, Citizenship and the State, 154–
157; Marc Morjé Howard, The Politics of Citizenship in Europe (Cambridge:
Cambridge University Press, 2009), 3.
65 For the discussion on the relationship of mobility and immobility see Sheller,
Mobility Justice.
66 Shachar, ‘The Birthright Lottery’, 24 January 2011, 4.
67 Rigo, ‘Citizens despite Borders: Challenges to the Territorial Order of Europe’, 210.
68 Kochenov, Citizenship, 135–142.
69 Kochenov, 112.

Mobility as a right 57
national rules on acquisition and a loss of citizenship as they are extensively
described elsewhere.
70
It is important to emphasize, however, that when it
comes to the regulation of the acquisition of citizenship, it has been tradition-
ally conceptualized as based on the genuine link between the person and the
state. However, as Kochenov underlines, citizenship is rather based on the
abstract and random connection between an individual and the state authority –
the birthright lottery.
71
The connection arises, in principle, by birth to parents
who are citizens of a particular state (ius sanguinis), by birth on the territory of
the state (ius soli), or by a combination of the two. The recent tendency of
states to change the mode of acquisition from ius soli to ius sanguinis shows
that citizenship is indeed a birth right that does want to have less and less to do
with migration.
72
In turn, naturalization is a confirmation of the formation of a
relationship with the state, which usually occurs as a result of living in a given
territory for a given period of time, by learning the language of a given country
and getting to know its culture, customs, or functioning of the political system.
The act of naturalization is often used to reinforce the essence of citizenship.
73
A person aspiring to naturalization must, therefore, often prove that they are
connected with the state by passing certain exams (including those that are
supposed to prove the adherence to state values) or participating in citizenship
award ceremonies often serving to construct culturally exclusionary and cohe-
sive citizenship identities.
74
There are also situations in which this relationship
with the state breaks down as a result of losing contact with a country or as a
result of a specific behaviour of a citizen, e.g., service in the armed forces of a
foreign country.
Within these premises, the actual regulations, such as the permission for and
consequences of double citizenship, the length of residence required to consider
the link with the state as sufficient, and the question of national values that
citizenship encompasses have been often dependent on the historical conditions
and political development of the states, in particular, on the history of coloni-
alism and early processes of democratization.
75
For instance, the former
70 Perruchoud, ‘Nationality and Statelessness’; Peter Spiro J., ‘Citizenship, Nationality,
and Statelessness’,in Research Handbook on International Law and Migration, ed.
Vincent Chetail and Céline Bauloz, Research Handbooks in International Law
(Cheltenham, UK: Edward Elgar, 2014); Kochenov, Citizenship.
71 For extensive criticism of the requirement of the genuine link as determined by the
International Court of Justice in the Nottebohm case (Nottebohm (Liehtenstein v.
Guatemala), 6 April 1955) see Kochenov, Citizenship, 114–120.
72 Ranabir Samaddar, The Postcolonial Age of Migration (Abingdon, Oxon; New
York: Routledge, 2020), 13.
73 For critical analysis of the politics of naturalization see Kochenov, Citizenship, 227–
231.
74 Anne Macduff, ‘Performing Legal and National Identities: Australian Citizenship
Ceremonies and the Management of Cultural Diversity’, Social & Legal Studies, 32
(2): 197–215, 2.
75 Howard, The Politics of Citizenship in Europe.

58 Mobility as a right
colonial powers were more open for relationships with the outside world;
therefore, these relationships, even though exploitative and unjust, required
more open migration and citizenship policies. On top of this, those countries
that had already democratized in the 19
th
century were more likely to develop a
conception of national identity that tolerated, even though reluctantly, the
inclusion of foreigners as members of their societies.
76
Many former colonial
powers, however, have been, during the era of decolonization but also later,
limiting the right for the acquisition of citizenship for citizens of their former
colonies, enacting what has been called “racial citizenship.”
77
Averynotable
example is that of the UK in the context of its accession to the EU. Nadine El-
Enany shows how the EU’s conditions for the UK’s accession encompassed the
requirement to limit non-white residents and citizens in the UK and led to
significant legal changes narrowing down the access to UK citizenship by
residents of the former colonies.
78
A similar process took place in the context
of the creation of the USA in the wake of its war with Mexico. The Treaty of
Guadalupe Hidalgo of 1848 established the US border at the River of Rio
Grande and granted it the territories of present-day California, Nevada, Utah,
New Mexico, most of Arizona and Colorado, and parts of Oklahoma,
Kansas, and Wyoming. The treaty, in article VIII granted the population
inhabiting these annexed territories the right to choose to leave or to stay and
for those who stay, to acquire US citizenship. However, even though the
treaty had effectively rendered annexed Mexicans “legally white,” they would
remain “socially non-white” in the eyes of Americans.
79
In particular, after the
annexation, mestizos and afromestizos living in the annexed territories were
routinely adjudged as racially ineligible for citizenship. Afromestizos became
governed by the Black code and Indians were denied citizenship and lost
control of lands.
80
To be sure, while it is a sovereign state’s competence to decide who can
become a citizen, and the doctrine of sovereign control of migration has vested
states with rights to control movement, international law has been to a certain
extent restricting the freedom of states to regulate citizenship and mobility, in
particular in order to avoid statelessness.
81
These interferences are still limited
however and international law mostly deals with the consequences or effects of
76 Howard, 37.
77 Harsha Walia, Robin D.G. Kelley, and Nick Estes, Border and Rule: Global
Migration, Capitalism, and the Rize of Racist Nationalism (Chicago: Haymarket
Books, 2021), 171.
78 Nadine El-Enany, (B)Ordering Britain: Law, Race and Empire, 2020; on coloniality
of EU citizenship and borders see also Enrica Rigo, ‘Citizenship at Europe’s Borders:
Some Reflections on the Post-Colonial Condition of Europe in the Context of EU
Enlargement’, Citizenship Studies 9, no. 1 (February 2005): 3–22.
79 Sherally Munshi, ‘Unsettling the Border’, UCLA Law Review 67, no. 6 (2021 2020):
1748.
80 Munshi, 1748.
81 Perruchoud, ‘Nationality and Statelessness’, 97.

Mobility as a right 59
attribution of citizenship when not in accordance with international conven-
tions, international custom, or general principles of law,
82
such as the right of
habitual residents to access citizenship, and prohibition of discrimination based
on the citizenship laws and practice.
83
The boundaries of citizenship become
also more permeable by changes in citizenship on the levels both above and
below the state, including regional regulations such as the EU citizenship (pri-
marily linked with the freedom of movement in the Area of Freedom, Security,
and Justice)
84
, simplified access to naturalization as in the case of South Amer-
ica
85
and local, novel developments on the levels of cities or municipalities.
86
Writing about the EU, Thomas Faist observes that these developments indicate
the multiplication of the borders of citizenship creating new lines of differ-
entiation both among citizens of the EU and between citizens and non-citi-
zens.
87
In the context of the freedom of movement of the EU citizens for
instance, their movement is either advantaged or disadvantaged based on their
economic means.
88
At the same time, the deprivation of national citizenship
has an impact on the citizenship of the EU and due to that, the rights of the
member states in relation to granting and removing citizenship are more
limited. As the CJEU decided in the Rottman case, even though national
citizenship remains within the matter of the sovereignty of the EU member
states any decision of its revocation requires observation of the principle of
proportionality.
89
The continuous changes in conditions for obtaining citizenship as well as
changes in the institutional or regional approaches to citizenship such as those
regulated in the EU law require treating citizenship as – what the theory of
kinopolitics calls – temporary stability, or even, as, instability. According to
Saskia Sassen, citizenship remains an incompletely theorized contract between
the state and the citizen. This incompleteness makes it possible for a such
82 Perruchoud, 97.
83 Spiro, ‘Citizenship, Nationality, and Statelessness’, 286.
84 Directive 2004/38/EC of the European Parliament and of the Council of 29 April
2004 on the right of citizens of the Union and their family members to move and
reside freely within the territory of the Member States amending Regulation (EEC)
No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/
EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, OJ L 158,
30.4.2004, p. 77–123.
85 Diego Acosta Arcarazo, The National versus the Foreigner in South America: 200
Years of Migration and Citizenship Law, Law in Context (Cambridge, UK; New
York, NY: Cambridge University, 2018).
86 Thomas Faist, ‘Local and Transnational Citizenship’, Europa Ethnica 76, no. 1–2
(2019): 12–15, 12. See also Didier Bigo and Elspeth Guild, Controlling Frontiers:
Free Movement into and within Europe.
87 Faist, 15.
88 Elspeth Guild, ‘Who is entitled to move?’ in Controlling Frontiers: Free Movement
into and within Europe (Abingdon, Oxon: Routledge, 2016): 14–48.
89 Janko Rottman v Freistaat Bayern, No. C-135/08 (Court of Justice of the European
Union 3 February 2010).

60 Mobility as a right
highly formalized institution to accommodate change, in other words, to
respond to this change (whether induced by changed conditions, new sub-
jectivities, or new instrumentalities) without sacrificing its formal status.
90
However, the stability of the formal status is often considered as citizen-
ships’ natural state. As Rainer Bauböck recently wrote, “[t]he broad new
literatures on citizenship of minorities or on citizenship as a practice of
contestation in social movements generally assume national citizenship as a
stable background.”
91
When viewed through the lens of the theory of kino-
politics – which approaches the political, societal, and cultural phenomena
from the perspective of movement, and considers the figure of the migrant
as the primary political subject,
92
– the current shape of citizenship appears
historically contingent and, as a result, temporary. Therefore, the reasons
behind such formation of citizenship as static requires scrutiny. Perspective
on citizenship needs to be broadened by examining how citizenship, pre-
sumably stable, is gradually shifting, what different forms it acquires, and
which purposes it serves.
To be sure, recent state practices indicate a disconnection of politics and
practices of citizenship from its perceived function as a basis for equality and
dignity.
93
On the one hand, citizenship has been losing its link with territory
and rights leading to arguments of the hollowing up of citizenship.
94
The
requirement of a genuine relationship between the person and the state as a
basis for citizenship has been disqualified in jurisdiction and legal doctrine.
95
In
addition, new practices emergence of the commodification of citizenship, i.e.
granting it to those who are ready to invest certain amounts of money in the
economy of the state of the new citizenship (the so-called ius pecuniae, citizen-
ship for investments or cash-for-citizenship schemes). Citizenship has been also
losing its meaning as a condition for access to not only civil and social but also
political rights.
96
On the other hand, citizenship continuously functions as a
tool for differential exclusion based on race, gender, or class. An example is a
process of precarization of citizenship leading to its revocation in situations
conducive to the public good, despite persons’ strong relationship with the
90 Saskia Sassen, Territory, Authority, Rights: From Medieval to Global Assemblages,
Updated ed. edition (Princeton, NJ: Princeton University Press, 2008), 277.
91 Rainer Bauböck, ‘Summary: Global, European and National Questions About the
Price of Citizenship’,in Debating Transformations of National Citizenship, ed.
Rainer Bauböck, IMISCOE Research Series (Cham: Springer International Publish-
ing, 2018), vii.
92 For the discussion on the role of the figure of the migrant see Nail, The Figure of the
Migrant.
93 Kochenov, Citizenship, xii.
94 Peter Spiro J., ‘Cash-for-Passports and the End of Citizenship’,in Debating Trans-
formations of National Citizenship, ed. Rainer Bauböck, IMISCOE Research Series
(Cham: Springer International Publishing, 2018), 17.
95 Kochenov, Citizenship, 115–116.
96 Kochenov, 247.

Mobility as a right 61
state.
97
All these changes point to the shift in the citizenship’s role towards a
tool for enhancing the mobility of some and a tool for control of movement and
residence of others.
Commodification of citizenship
Margaret Somers in Genealogies of Citizenship warns about tilting the emphasis of
citizenship towards the rules of the market. Market as an arbiter of moral
authority recalibrates citizenship from that of social inclusion and membership to
conditional inclusion or exclusion based on worth.
98
To be sure, this observation is
relevant not only to the access to rights but also to the freedom of movement
associated with citizenship. The turn towards the commodification of citizenship
that I discuss in this section indicates that citizenship is considered primarily as a
resource for mobility
99
and the recent controversial practices of citizenship by
investment are the clearest illustration of this tendency.
Citizenship by investment is not a new practice and its history dates back to
the 1980s when a federation of two Caribbean islands, St. Kitts and Nevis, after
gaining independence from Great Britain, was forced to find contributors to the
limited state budget. The current laws of St. Kitts and Nevis award to those
investing US $ 250,000 to the confectionery industry or $ 400,000 to the real
estate business, numerous privileges including citizenship and visa-free travel to
over 80 countries worldwide.
100
Citizenship in return for investment is generally
granted either on the basis of the discretion of the authorities or on the basis of
special programmes specifying the requirements, in particular the sum of the
investment, that must be met by the investor in order to be naturalized. It is
interesting that in some cases, an investor may acquire citizenship without an
obligation to reside in the territory of a given state. Although a residence
requirement exists in most countries that grant naturalization in return for
investment (such as Canada, the United States, the United Kingdom, Belgium,
Australia, and Singapore), some countries allow citizenship to be acquired,
regardless of any link between the state and the naturalized person.
101
Such
97 Elspeth Guild, Security and Migration in the 21st Century (Cambridge: Polity Press,
2009); Magdalena Kmak, ‘Mnogos
´c
´ Obywatelstw: Studium Nad Dominuja˛cymi i
Mniejszos
´ciowymi Dyskursami Prawnymi’,in O Prawach Człowieka. Ksie˛ga Jubi-
leuszowa Profesora Romana Wieruszewskiego (Warszawa: Wolters Kluwer, 2017):
395–408.
98 Margaret R. Somers, Genealogies of Citizenship: Markets, Statelessness, and the
Right to Have Rights, Cambridge Cultural Social Studies (Cambridge, UK; New
York: Cambridge University Press, 2008), 4.
99 Rainer Bauböck, ed., Debating Transformations of National Citizenship, IMISCOE
Research Series (Cham: Springer International Publishing, 2018), 3.
100 See http://stkitts-citizenship.com (accessed 13 April 2023).
101 Jelena Dzankic, ‘The Pros and Cons of Ius Pecuniae: Investor Citizenship in Com-
parative Perspective’ (Florence: European University Institute, Robert Schuman
Centre for Advanced Studies, EUDO Citizenship Observatory, 2012), 1.

62 Mobility as a right
regulations exist in the already mentioned Caribbean countries, such as:
Dominican Republic, St. Kitts and Nevis, and Antigua and Barbuda. Recently,
however, similar regulations have also appeared in some European countries,
such as Hungary, Austria, and Cyprus.
102
The EU countries mentioned are interesting examples of changes in
nationality laws, which were introduced in 2013 in the aftermath of the
financial crisis and the collapse of the banking sector. The Cypriot authorities
have adopted new laws with the aim, on the one hand, to keep investors
within and prevent transfers of remaining assets to other countries and attract
new investors. As a result, those who lost EUR 3 million during the crisis
could automatically obtain Cypriot citizenship. At the same time, new and
more favourable criteria were introduced for obtaining citizenship in exchange
for investments – both lower financial requirements and the possibility of
naturalization without it being linked to the public interest, requiring neither
residence in Cyprus nor a good character.
103
Following the criticism and cor-
ruption accusations, Cyprus has recently announced the plan to subject the
applications to the due diligence requirements and introduce a cap on the
number of citizenships granted.
104
Such and similar regulations fit into so-called flexible citizenship practices,
that encompass strategies and actions by groups of mobile professionals looking
for ways around and benefits from the legal regimes of individual countries by
choosing different places to invest, work, or live.
105
The new regulations on
citizenship by investment also point to the emergence of a group of so-called
good or desirable citizens, whose value is determined not on the basis of a
genuine relationship with the state or behaviour in accordance with the values
of a given state, but like in Cyprus, only on the basis of the financial resources
that they are ready to invest in the economy of a chosen country. A tradition-
ally required genuine link with the state turns therefore into a business contract
102 Jelena Dzankic, ‘Citizenship by Investment: Can Money Buy Citizenship?’, European
Union Democracy Observatory on Citizenship (blog), 15 February 2012, https://
globalcit.eu/citizenship-by-investment-can-money-buy-citizenship/ (accessed
18.12.2022); Jelena Dzankic, ‘Investor Programs: Attempting to Cure the Struggling
European Economies? I’, Citizenship in Southeast Europe (blog), 14 December 2012,
http://www.citsee.eu/blog/investor-programs-attempting-cure-struggling-europea
n-economies (accessed 18.12.2022); Magdalena Kmak, ‘Mnogos
´c
´ Obywatelstw: Stu-
dium Nad Dominuja˛cymi i Mniejszos
´ciowymi Dyskursami Prawnymi’,in O Pra-
wach Człowieka. Ksie˛ga Jubileuszowa Profesora Romana Wieruszewskiego
(Warszawa: Wolters Kluwer, 2017): 395–408.
103 Nicos Trimikliniotis, ‘Report on Citizenship Law: Cyprus’ (EUDO Citizenship
Observatory, 2015).
104 Helen Smith, ‘Cyprus to Step up Security Checks in Cash-for Citizenship Scheme’,
The Guardian, 23 May 2018. https://www.theguardian.com/world/2018/may/23/cyp
rus-to-step-up-security-checks-in-cash-for-citizenship-scheme (accessed 13.04.2023).
105 Christian Joppke, ‘The Inevitable Lightening of Citizenship’, European Journal of
Sociology / Archives Européennes de Sociologie 51, no. 01 (2010): 9–32.

Mobility as a right 63
in which money, not a person, needs to reside in the country of citizenship.
106
As a result of such a contract, naturalized citizens can enjoy the rights granted
to them by the new state of citizenship, including, for example, in the case of
citizenship being granted by European countries, access to the four freedoms of
the EU common market.
107
The proliferation of such schemes in recent years points towards the impor-
tance of citizenship as a resource for mobility,
108
with its value existing pri-
marily in the mobility rights attached to passports and certain super-
citizenships.
109
Such a scheme reveals the functions of citizenship as a tool for
differential inclusion, hidden behind its traditional features that encompass the
rootedness in a community, long-lasting residence, or participation in political
and social life.
110
Interestingly, this process is coupled with increased state
efforts to bring back the meaning of citizenship as a link with the state based on
the tests and requirements for integration.
111
Crucially, however, these schemes
exacerbate existing inequalities, by enhancing the distributive unfairness that
encompasses mobility, tax exemptions, highly skilled migrant schemes, ethnic
citizenship policies,
112
or even the ability to go around the restrictive protection
laws and practices for those who are able to pay for it. In this context, inter-
esting developments have followed the escalation of the Russian war against
Ukraine in 2022.
Due to the sanctions against Russia and its citizens the possibility to apply for
an investor citizenship scheme in the EU has become limited. Therefore, acquiring
citizenship of other states such as Vanuatu or the Caribbeans has become even
more attractive. Companies assisting in acquiring such citizenship have published
advertisements directed at Russian citizens about the possibility to apply for citi-
zenship through an investment of a minimum sum of 100,000 USD.
113
The
106 Ayelet Shachar, ‘Dangerous Liaisons: Money and Citizenship’,in Debating Trans-
formations of National Citizenship, ed. Rainer Bauböck, IMISCOE Research Series
(Cham: Springer International Publishing, 2018), 9–10.
107 Dzankic, ‘Investor Programs: Attempting to Cure the Struggling European Econo-
mies? I’; Kmak, ‘Mnogos
´c
´ Obywatelstw: Studium Nad Dominuja˛cymi i Mniejszos
´-
ciowymi Dyskursami Prawnymi’.
108 Bauböck, Debating Transformations of National Citizenship, 3; Spiro, ‘Cash-for-
Passports and the End of Citizenship’,17–18.
109 Kochenov, Citizenship, 247.
110 Chris Armstrong, ‘The Price of Selling Citizenship’,in Debating Transformations of
National Citizenship, ed. Rainer Bauböck, IMISCOE Research Series (Cham:
Springer International Publishing, 2018), 25.
111 Roxana Barbulescu, ‘Global Mobility Corridors for the Ultra-Rich. The Neoliberal
Transformation of Citizenship’,in Debating Transformations of National Citizen-
ship, ed. Rainer Bauböck, IMISCOE Research Series (Cham: Springer International
Publishing, 2018), 30.
112 Bauböck, Debating Transformations of National Citizenship.
113 ‘Programs of Residence Permit and Citizenship by Investment in the European
Union Are Suspended for Russians’, Immigrant Invest, 28 February 2022, https://
immigrantinvest.com/insider/sanctions-statement-en/ (accessed 18.12.2022).

64 Mobility as a right
Council of the EU has recently proposed a partial suspension of the visa waiver
agreement with Vanuatu that will limit such possibility.
114
But interestingly it is
not only those who seek for more comfortable living conditions who are targeted
by such companies. Advertisements are directed, for instance, also to those that
have unsuccessfully applied for refugee status in EU countries such as Germany,
proposing as a solution applying for Vanuatu citizenship granting those unsuc-
cessful asylum seekers a right of a non-visa Schengen entry to the EU that is cou-
pled with the ability to set up business there.
115
These examples show that the increase of mobility and rights of some hap-
pens at times where the mobility of the rest of the populations (often the
sedentary population of the same non-democratic countries those benefiting
from cash-for-citizenship schemes are coming from) becomes more and more
limited and contentious, what Shachar calls the “‘restrictive turn’ with respect
to ordinary immigration and naturalization.”
116
This observation points us
back to the earlier discussed birthright citizenship debate, and the role of citi-
zenship as the technology of management of the global population rooted in
regulated and stable mobility. In this sense, citizenship itself becomes an ele-
ment of the global mobility infrastructure that guarantees access and smooth
travel with the support and facilitation of this infrastructure.
Precarization of citizenship
Granting citizenship for investment is not the only trend in the recent develop-
ment of citizenship laws. Parallel to it, one can observe practices of extending
the possibility to deprive citizenship in connection with certain behaviour, that
results in the emergence of a group of bad or undesired citizens. As Audrey
Macklin highlighted recently, “[a]fter decades in exile, banishment is back,”
pointing to the most recent practices of denationalization.
117
In this section of
the chapter I show how recently proposed or adopted laws in France and the
UK have resulted in the unequal treatment between naturalized citizens and
those who obtained citizenship by birth,
118
as well as the precarization of
114 Council of the European Union, ‘Council Decision on the Partial Suspension of the
Application of the Agreement between the European Union and the Republic of
Vanuatu on the Short-Stay Viza Waiver’, Pub. L. No. 6190/22 (2022).
115 ‘Vanuatu Citizenship: How Political Refugees Get Freedom to Travel around the
World and Start Their Own Business’, Immigrant Invest, https://immigrantinvest.
com/cases/vanuatu-passport-for-politician-en/ (accessed 18.12.2022).
116 Shachar, ‘Dangerous Liaisons: Money and Citizenship’,7.
117 Audrey Macklin, ‘The Return of Banishment: Do the New Denationalization Poli-
cies Weaken Citizenship?’,in Debating Transformations of National Citizenship, ed.
Rainer Bauböck, IMISCOE Research Series (Cham: Springer International Publish-
ing, 2018), 163.
118 Gerard-René de Groot and Maarten P. Vink, ‘Loss of Citizenship: Trends and
Regulations in Europe’, Comparative Report (European University Institute, Robert
Schuman Centre for Advanced Studies, EUDO Citizenship Observatory, 2010), 27.

Mobility as a right 65
citizenship as such. Although such practices are not new,
119
one can recently
observe their return and intensification.
Most countries have laws that allow for the loss or termination of citizenship
in situations where it has been granted to a person based on fraud or other
irregularities in the process of obtaining it. The laws of some countries also
allow deprivation of citizenship in situations where a person is particularly
disloyal to the state, such as involvement in voluntary military service in a for-
eign army or behaviour seriously prejudicial to the state’s interests.
120
However,
recent practices of deprivation of citizenship point to a revitalized practice
aimed at conceptualizing citizenship as a privilege and using the law on citi-
zenship as a tool of migration policy facilitating exclusion.
121
Two notable
examples of such understood citizenship are presented below: a discussion on
the changes to the law on citizenship in France, and legal regulations adopted in
the last decade in Great Britain.
122
These case studies are by no means excep-
tional as the debates on the revocation of citizenship have taken place for
instance in connection with those citizens of European countries who joined
ISIS.
In France, after the riots in Grenoble in 2010, the then-president, Nicolas
Sarkozy, expressed the need to amend the provisions on citizenship in order to
allow the revocation of French citizenship from citizens of foreign origins who
break the law.
123
This proposal was made despite the fact that French law,
since the First World War, allows the deprivation of citizenship of certain
categories of people.
124
In particular, pursuant to Article 25 (1) of the French
Civil Code, as amended in 2005, a naturalized citizen may be deprived of
French citizenship in four cases: (1) conviction for an ordinary or serious crim-
inal offence against the essential interests of the Nation or for a serious offence
constituting an act of terrorism; (2) convictions for activities constituting a
crime against public administration committed by a person holding a public
office; (3) convictions for avoiding obligations under the public service code;
and (4) engaging in activities incompatible with the status of French and detri-
mental to the interests of France, and beneficial to another country.
125
The 2005
amendments also aimed to extend the possibility of depriving naturalized
119 Sandra Mantu, Contingent Citizenship: The Law and Practice of Citizenship
Deprivation in International, European, and National Perspectives (Nijmegen, 2014).
120 de Groot and Vink, ‘Loss of Citizenship: Trends and Regulations in Europe’. See
also article 7(1)(d) of the European Convention on Citizenship
121 Mantu, Contingent Citizenship: The Law and Practice of Citizenship Deprivation in
International, European, and National Perspectives, 13.
122 See also Kmak, ‘Mnogos
´c
´ Obywatelstw: Studium Nad Dominuja˛cymi i Mniejszos
´-
ciowymi Dyskursami Prawnymi’.
123 Mantu, Contingent Citizenship: The Law and Practice of Citizenship Deprivation in
International, European, and National Perspectives, 207–208.
124 Mantu, 191.
125 French Civil Code 2005, Article 25(1) quoted after EUDO Citizenship Observatory
(accessed 25 February 2021).

66 Mobility as a right
citizens of citizenship by prolonging the period allowing for it from 10 to 15
years from granting citizenship.
126
Despite such a broadly defined power, the French government influenced by
the Grenoble speech prepared two new legislative initiatives to introduce a legal
basis for granting the authorities the possibility of depriving naturalized citizens
of this status on the grounds of polygamy, fraud of the social security system,
irregular work or serious misconduct, as well as homicide of a public official.
127
According to Sandra Mantu, President Sarkozy’s aim was to highlight the spe-
cific nature of French citizenship and define it as a privilege to be earned. He
thus emphasized the lack of assimilation and the unworthiness of having French
citizenship by those who took part in the riots.
128
Similar arguments relating to
morality, French values, and principles, as well as pointing to a threat to the
internal security of the state from naturalized citizens were made during the
discussions on the proposed changes in the French parliament. However, most
of these changes were deemed unconstitutional.
129
Also, the amendment to the
constitution, proposed by President Hollande after the terrorist attacks in
November 2015, did not find support in the French parliament.
130
The proposed
amendments, discussions, and reactions to them serve as examples of the cur-
rently dominant discourse on citizenship. On the one hand, they confirm the
tendency to define citizenship by indicating behaviour inconsistent with certain
national values, and on the other hand, they strengthen the trend towards
treating citizenship as a tool of migration policy. The working of such a strat-
egy will be discussed in more details in the next chapter.
Deprivation of citizenship is also widely regulated in the UK law. As in
France, the current law has its roots in regulations aiming at revocation of
citizenship from citizens of hostile countries, as well as the regulation of citi-
zenship of the inhabitants of the colonies.
131
Important changes to the law on
citizenship were initiated by the Act on Citizenship of 1981, which changed the
rules for the acquisition of citizenship by replacing ius soli with ius sanguinis
and depriving British citizens of the Commonwealth and Hong Kong of resi-
dence in the UK. Although this Act did not introduce new grounds for depri-
vation of citizenship, its adoption has been called a beginning of the process of
126 Sandra Mantu, ‘Deprivation of Citizenship in France’, Enacting European Citizen-
ship (Centre for Citizenship, Identities and Governance, Faculty of Social Sciences,
The Open University, UK, 2010).
127 Mantu, Contingent Citizenship: The Law and Practice of Citizenship Deprivation in
International, European, and National Perspectives, 208.
128 Mantu, 208.
129 Mantu, 208–209.
130 Kim Wilsher, ‘Hollande Drops Plan to Revoke Citizenship of Dual-National Ter-
rorists’, The Guardian, 30 March 2016, https://www.theguardian.com/world/
2016/mar/30/francois-hollande-drops-plan-to-revoke-citizenship-of-dual-national-ter
rorists (accessed 18.12.2022).
131 Mantu, Contingent Citizenship: The Law and Practice of Citizenship Deprivation in
International, European, and National Perspectives, 139–146.

Mobility as a right 67
shaping the principles of granting and depriving citizenship as an element of the
state’s migration policy and treating citizenship not as a right but as a privi-
lege,
132
similar to France. Subsequent changes to the regulations took place in
2002, 2004, 2006, 2014 and introduced additional legal bases allowing for the
deprivation of citizenship.
133
In particular, the legislation adopted after the London attack in July 2006
allowed for denaturalization in situations conducive to the public good.
134
This
amendment to the Act on Immigration, Asylum and Nationality made clear the
intention to use the Law on Nationality as a wide-ranging initiative against
terrorism consequently linking migration to terrorism as such.
135
In 2014, the
possibility of depriving citizenship was further extended by allowing denatur-
alization even in a situation where the person would end up stateless. Pursuant
to the 2014 Immigration Act, the Secretary of State may make such a decision
for the benefit of the public good, when the behaviour of a citizen is seriously
prejudicial to the vital interests of the state and in a situation where there are
reasonable grounds to believe that the person may acquire the citizenship of
another country.
136
The presented grounds for denaturalization should be
assessed in relation to the changes adopted in 2004, which removed the sus-
pensive effect from appeals against decisions to deprive of nationality. Accord-
ing to commentators, the new rules combined with the practice of the British
authorities, often issuing deprivation decisions when a person is outside the
country, could limit the right to a fair trial and judicial protection, as well as
the freedom of movement of these citizens.
137
In addition, according to Mantu,
the fact that decisions on deprivation of citizenship are issued to those who are
suspected, and not convicted of criminal offences, may indicate the political
basis of these decisions.
138
One such widely discussed case in the UK recently is
the case of revocation of citizenship of Shamima Begum who at the age of 15
travelled (or has been trafficked) from the UK to Syria to join the Islamic State.
132 Chandra Talpade Mohanty, Ann Russo, and Lourdes Torres, eds., Third World
Women and the Politics of Feminism (Bloomington: Indiana University Press, 1991),
26–28; El-Enany, (B)Ordering Britain.
133 Mantu, Contingent Citizenship: The Law and Practice of Citizenship Deprivation in
International, European, and National Perspectives, 13.
134 Mantu, 55.
135 Sandra Mantu, ‘Deprivation of Citizenship in the United Kingdom’, Enacting Eur-
opean Citizenship (Centre for Citizenship, Identities and Governance, Faculty of
Social Sciences, The Open University, UK, 2009), 20.
136 David Anderson, Citizenship Removal Resulting in Statelessness: First Report of the
Independent Reviewer on the Operation of the Power to Remove Citizenship
Obtained by Naturalization from Persons Who Have No Citizenship, 2016.
137 Amanda Weston, ‘Deprivation of Citizenship – by Stealth’, Institute of Race Rela-
tions (blog), 9 June 2011, https://irr.org.uk/article/deprivation-of-citizenship-by-stea
lth/ (accessed 18.12.2022); Macklin, ‘The Return of Banishment: Do the New
Denationalization Policies Weaken Citizenship?’
138 Mantu, Contingent Citizenship: The Law and Practice of Citizenship Deprivation in
International, European, and National Perspectives,20–23.

68 Mobility as a right
Begum was then married to an ISIS fighter with whom she had three children,
all of whom died. After the defeat of ISIS, she was captured and detained in one
of the displacement camps. In the most recent decision, the UK Supreme Court
has not allowed Begum to return to the UK to continue challenging the decision
on revocation of her citizenship for reasons of national security.
139
The given examples show that the practice of citizenship, apart from the
division into citizens and foreigners, also reinforce a division into good and bad
citizens, based on values rather than on the formal abstract status. For instance,
cases such as Shamima Begum’s and other cases of women joining the Islamic
State, show both racialized and gendered dimension of citizenship. In this dis-
course women who left Western countries to associate themselves with Islamic
terrorism are considered as voluntarily abandoning Western values and in con-
sequence, being affectively racialized as others.
140
In addition, since this has
resulted in them giving birth or living in dire circumstances in the camps with
their children, they have transgressed ideas about how good mothers should
behave. Their exclusion from citizenship or the right to return is, therefore, due
to their behaviour that is not in accordance with the expected societal roles.
Their access to human rights protection, in particular the right to be repatriated
from the displacement camps such as al-Hol by the countries of citizenship, has
been very limited. This right has been usually juxtaposed to that of the children
whose best interest warrant repatriation. Even though, some human rights
monitoring bodies have recently tried to challenge the approach adopted by
many states against the repatriation of women, the discussion remains centred
on deservingness and skews the focus from the rights of women towards the
vulnerability of children.
141
These and other examples show that oftentimes the
belonging of racialized or gendered citizens are being based on higher expecta-
tions for the standard of behaviour creating a category of second-class citi-
zens
142
that is intergenerational and imposed by the withholding of citizenship
and mobility.
The main consequence of these changes for the right to the freedom of
movement derive from already discussed substantive inequality between
national citizenships that is enhanced by the rules of international law on the
139 Dan Sabbagh, ‘Shamima Begum Loses Fight to Restore UK Citizenship after
Supreme Court Ruling’, The Guardian, 26 February 2021, https://www.theguardian.
com/uk-news/2021/feb/26/shamima-begum-cannot-return-to-uk-to-fight-for-citizen
ship-court-rules (accessed 18.12.2022).
140 Sanna Mustasaari, ‘Affective Constructions of Justice: ISIS-Families and the Law in
the Finnish Public Debate’, Oñati Socio-Legal Series 11, no. 4 (2021): 1036–1065.
141 L.H. et al v. France, Nos 79/2019 and 109/2019 and F.B. et al v. France, No. 77/2019,
(Committee on the Rights of the Child 30 September 2020); S.N. et al. v. Finland,
No. 100/2019, (Committee on the Rights of the Child 12 September 2022); H.F. and
Others v. France, Nos 24384/19 and 44234/20, (European Court on Human Rights 14
September 2022 (Grand Chamber)).
142 Lucia Zedner, ‘Citizenship Deprivation, Security and Human Rights’, European
Journal of Migration and Law 18, no. 2 (17 June 2016): 238.

Mobility as a right 69
prohibition of statelessness (that is not always followed, such as in the case of
the UK described above). The limitation of the revocation of citizenship to
those who would not become stateless (and in consequence that would not
allow for the ascription of a person to a proper sovereign) assumes the equality
and as Audrey Macklin claims, fungibility of citizenships.
143
The static per-
spective on the international legal rules on anti-statelessness and on deprivation
of citizenship assumes that as long as an individual retains nationality some-
where, denationalization does not pose any human rights problems.
144
A shift
towards the mobility perspective, that focuses not on the formal rules of
acquiring and deprivation of citizenship, but the life chances and ability to
move based on this citizenship reveals, that behind the formally equal rules on
nationality, the consequences of denationalization perpetuate the unequal
strength of citizenships, and similarly to citizenship by investment results in the
citizenship that guarantees mobility as a right. In consequence, these changes
coupled with the discourse of citizenship as a privilege strengthen the unequal
right to mobility for some and immobility for others.
Conclusions
The purpose of this chapter was to look at the legal regulation of the concept of
citizenship that contribute to the formation of the right to mobility. Through
the conceptual shift from the right to the freedom of movement to mobility as a
right, this chapter showed not only how the right to mobility had been regu-
lated and ordered, but also how law constructs both mobilities and immobi-
lities and contributes to the technology of citizenship. From this perspective,
citizenship, together with the institutions of migration law help to maintain the
world as divided into territorial nation-states.
In the first part of this chapter, I analysed the role of citizenship for the
asymmetric right to freedom of movement, its history, and its contemporary
application. I demonstrated, how the right to the freedom of movement is rooted
in the modern/colonial concept of citizenship that has emerged as a norm and
which, in consequence, affects the ability or the inability to move. I problematized
what is traditionally called the right to the freedom of movement and showed how
the shift from the content to the productive function of law warrants calling it
mobility as a right managed and controlled through the construction of the insti-
tution of citizenship. I also discussed how citizenship does not guarantee inclusion
but rather undermines the idea of universal equality by differential belonging, by
justifying exclusion and normalising discrimination.
In the second part of the chapter, I analysed what the conceptual shift from
the right to the freedom of movement to mobility as a right had revealed: the
143 Macklin, ‘The Return of Banishment: Do the New Denationalization Policies
Weaken Citizenship?’, 169.
144 Macklin, 170.

70 Mobility as a right
productive function of international and national legal regulations on obtaining
and losing citizenship that sets conditions for the mobility of some and immo-
bility of others. As case studies, I used two sets of rules that allow acquiring
citizenship through investment and allow for removal or revocation of citizen-
ship in the case of terrorist suspects or more generally when it is conducive to
the public good. Through these examples I demonstrated differentiating func-
tion of citizenship contributing to enhancing the mobility of some and control-
ling movement and residence of others.
This chapter, together with the previous and next ones, show how a shift of
perspective from static to mobile reveals the primary instability of institutions
currently constitutive of orderly human mobility – that of a nation-state, citi-
zenship, and borders – and how they remain in a constant process of con-
struction and deconstruction, impacted by the shifting dynamic of mobility. In
particular, the following Chapter 3 continues exploring the mobility and
movement of law through the relationship between the nation-state, citizenship,
mobility, and migration, focusing on mobility as a violation of the law.

Chapter 3
Mobility as a violation of law
Introduction
In this chapter I focus on state sovereignty, borders, and the processes of bor-
dering, which serve as an engine of the nation-state machine.
1
Whereas in the
previous chapter I focused on the modes of inclusion, this chapter deals with its
necessary opposite, an exclusion. Citizenship means inclusion into the com-
munity of the state. The existence of the community, however, presupposes its
boundedness and is constructed in the relation to what is outside of it and; as
such, is not included.
2
The privileged mobility of citizens has been necessarily
juxtaposed with restrictions or exclusions of other forms of mobility, both
within and across borders – that of vagabonds, beggars, criminals, or migrants.
Citizenship, therefore, cannot be discussed separately from borders and the
processes of distinction – inclusion- and exclusion-making or bordering – that
take place there.
Both processes of inclusion and exclusion I discuss in this book are
connected with the distinction between orderly and disorderly mobility in
modernity/coloniality.
3
Orderly mobility, and corresponding mobility as a
right, is a feature and a right of those with the top tier citizenships. Their
movement is, subsequently, privileged in international law and facilitated
through the global mobility infrastructure.
4
In turn, citizens of former
colonies as well as many former socialist countries have been excluded
1 Thomas Nail, Theory of the Border (Oxford; New York: Oxford University Press,
2016); Magdalena Kmak, ‘Migration Law as a State (Re)Producing Mechanism’,in
Migration, Identity, and Belonging: Defining Borders and Boundaries of the Home-
land (Abingdon, Oxon: Routledge, 2020).
2 Linda Bosniak, ‘Making Sense of Citizenship’, Issues in Legal Scholarship 9, no. 1
(24 January 2011), 3.
3 Hagar Kotef, Movement and the Ordering of Freedom: On Liberal Governances of
Mobility, Perverse Modernities (Durham, NC; London: Duke University Press,
2015).
4 Thomas Spijkerboer, ‘The Global Mobility Infrastructure: Reconceptualising the
Externalization of Migration Control’, European Journal of Migration and Law 20,
no. 4 (29 November 2018): 452–469.
DOI: 10.4324/9781003254966-4
This Chapter has been made available under a CC-BY-NC-ND 4.0 license.

72 Mobility as a violation of law
from mobility rights.
5
Their mobility has been characterized (but also
constructed) as disorderly and often criminalized and illegalized.
6
Mobility
is, therefore, a resource that not everyone is able to access and use.
7
It is
facilitated by the mobility infrastructure and constitutes a technology of
governance over different types of subjects who are moving, being moved,
are partially or fully immobilized.
8
The technology of governance with mobility as a mode of distinction has had
a productive function for the nation-state that is particularly important under
globalization, and that blurs the distinction between inside and outside and in
consequence exposes the nation-state’s ontological instability. The governance
happens through coding (with the means of law) of mobility as desired or
undesired, the former considered a privilege and the latter always already a
violation of law. The latter either needs to be prevented or channelled for useful
purposes
9
through the migration regime. These two modes of mobility, mobility
as a right and mobility as a violation of law, are being conceptually differentiated
to justify the distinction. As Thomas Spijkerboer writes, “[w]hen cross-border
movement is presented as desirable, the concept of mobility is used, while when
it is considered problematic or potentially unwanted, the term migration is
used. In that sense, migration is the annoying little sibling of mobility.”
10
These legal categories and conceptions not only represent the world, but
also construct it by forming our consciousness, where they become natur-
alized.
11
Applying a mobility lens highlights the process of distinction-making
and their naturalization through law and destabilizes these conceptions and
categories.
Chapter 3 traces the operation of the contemporary form of the machinic sta-
tehood in a globalized world that is based on the multiplication of borders
12
and
the processes of bordering, that enable the state to both reproduce and reinvent
itself through positing migration at its centre.
13
This is not a new process.
5 Dimitry Kochenov, Citizenship, The MIT Press Essential Knowledge Series (Cam-
bridge, Mass.; London, UK: The MIT Press, 2019), 127–128.
6 See for instance Katja Franko, The Crimmigrant Other: Migration and Penal Power,
Key Ideas in Criminology (Abingdon, Oxon; New York, NY: Routledge, 2020).
7 N De Genova et al., ‘Minor Keywords of Political Theory: Migration as a Critical
Standpoint – A Collaborative Project of Collective Writing’, Environment and
Planning C: Politics and Space, 9 March 2021, 40.
8 De Genova et al., 38.
9 Ranabir Samaddar, The Postcolonial Age of Migration (Abingdon, Oxon; New
York: Routledge, 2020); Sandro Mezzadra and Brett Neilson, Border as Method, or,
the Multiplication of Labor, 2013.
10 Spijkerboer, ‘The Global Mobility Infrastructure’, 453.
11 Anne Macduff, ‘Performing Legal and National Identities: Australian Citizenship
Ceremonies and the Management of Cultural Diversity’, Social & Legal Studies,17
May 2022, 5.
12 Mezzadra and Neilson, Border as Method, or, the Multiplication of Labor.
13 Kmak, ‘Migration Law as a State (Re)Producing Mechanism’.

Mobility as a violation of law 73
Historically the nation-state as a modern/colonial institution has been reinforcing
itself through slavery or through asylum legislation
14
and it continues to reinforce
itself by upkeeping the legacies of colonialism, the construction of the Other, and
the failing civilising mission that are all crucial for its existence. This system is
constructed jointly through legitimizing and illegitimizing movement and mono-
polization of measures to propel or control it. Bordering happens primarily at the
geographical borders of the nation-state but borders also move within and outside
of state territory.
15
Differently positioned borders constitute a meeting place of the
multiplicity of laws determining the status of the person, their belonging, and non-
belonging, which determines the existence of rights related to movement.
16
Moving
law outside the border aims to avoid such legal encounters and in consequence
prevent the emergence of any obligations towards those on the move.
17
In the first part of this chapter, I focus on the meaning and a function of
borders for nation-states and law. I then focus on the origins and implications
of the international legal doctrine of sovereign control of migration.
18
Sovereign
control of migration happens at the geographical borders of the state and
increasingly within and outside the state. I argue that this doctrine does not
only enforce the right to control mobility but turns certain mobilities into a
violation of law. In particular, this doctrine contributes to differential exclu-
sions of various groups of mobile persons and together with mobility as a right
perpetuates the distinction of mobility into orderly and disorderly.
In the second part of the chapter, I show examples of how mobility as a viola-
tion of law is being maintained in international and national law of the global
North through the different forms of bordering – or distinction-making – as coded
in migration law. The over-encompassing role of migration law is to strengthen
14 Lucy Mayblin, Asylum after Empire: Colonial Legacies in the Politics of Asylum
Seeking, Kilombo: International Relations and Colonial Questions (London; New
York: Rowman & Littlefield International, 2017).
15 Ayelet Shachar, The Shifting Border: Legal Cartographies of Migration and Mobility:
Ayelet Shachar in Dialogue (Manchester: Manchester University Press, 2020), 20.
16 Olivia Barr, A Jurisprudence of Movement: Common Law, Walking, Unsettling
Place (Abingdon, Oxon; New York, NY: Routledge, 2016), 43.
17 Thomas Gammeltoft-Hansen and Jens Vedsted-Hansen, eds., Human Rights and the
Dark Side of Globalization: Transnational Law Enforcement and Migration Con-
trol, Routledge Studies in Human Rights (Abingdon, Oxon; New York, NY: Rou-
tledge, 2017), 5.
18 Karin de Vries and Thomas Spijkerboer, ‘Race and the Regulation of International
Migration. The Ongoing Impact of Colonialism in the Case Law of The European
Court of Human Rights’, Netherlands Quarterly of Human Rights 39, no. 4
(December 2021): 291–307; Thomas Spijkerboer, ‘Coloniality and Recent European
Migration Case Law’,in Migrants’ Rights, Populism and Legal Resilience in Europe,
ed. Vladislava Stoyanova and Stijn Smet, 1st ed. (Cambridge: Cambridge University
Press, 2022), 117–138; Thomas Spijkerboer, ‘The Geopolitics of Knowledge Produc-
tion in International Migration Law’,in Research Handbook on the Law and Poli-
tics of Migration, by Catherine Dauvergne (Cheltenham, UK: Edward Elgar
Publishing, 2021), 172–188.

74 Mobility as a violation of law
state legitimacy and sovereignty exposed as unstable by the processes of globali-
zation. State legitimacy lies, therefore, not in sovereignty, but it is rather sover-
eignty that requires constant reinforcement for its legitimacy and relevance.
19
That
happens through the multifaceted processes of bordering, securitization, or crim-
inalization, that take place within and outside the territory of the state and affect
not only their legal status but also all aspects of migrant lives. Some of these pro-
cesses can be described as overspill of migration law into other areas of law – into
citizenship law (already discussed in Chapter 2) and into criminal law – turning
these laws into migration control measures.
20
Through these analyses the chapter
builds a basis for further discussion in the book on the possibility of resistance to
the nation-state as constructed through modernity/coloniality.
From the sovereign right to control migration towards mobility
as a violation of law
Borders
Thomas Nail in his Theory of Border illustrates, with the example of the US-Mexico
border, the ontology of borders in general. Criticising border theorists and analysts
who consider the US-Mexico border as a failure, Nail argues that such critique pre-
sumes the consistency and logic in the way power operates. As he writes however,
“[t]he opposite is true: power functions primarily in and through its conflicts,
mobilities, instabilities, and hybridity. It is (…) kinological. Thus, the question is not
‘Is this border a success or failure?’ but ‘How does it move?’”
21
For Nail, society is a
product of such kinological operation of borders that are in turn reproduced by the
society.
22
In particular, borders serve the purpose of territorial delimitation and sta-
bilization of the nation-states, and that stability and homogeneity needs to be then
maintained through the continuous operation of borders. Law, operating at inter-
national, national, or local levels determines the function of borders and regulates
cross-border movement, but it is also itself implicated in bordering.
In international law, borders serve as the delimitation of the territories of states
and from this perspective contribute to the construction of the state as a material
entity. Territoriality of statehood is crucial, and a loss or a prospective loss of
territory, as in the recently discussed case of the low-lying island states, is con-
sidered to be a major factor contributing to the possible loss of their statehood.
23
19 Samaddar, The Postcolonial Age of Migration, 52.
20 Magdalena Kmak, ‘Migration Law as a State (Re)Producing Mechanism’.
21 Nail, Theory of the Border, 166.
22 Nail, 4.
23 For the discussion on the continuity of the state in the case of loss of territory see
for instance Michel Rouleau-Dick, ‘Competing Continuities: What Role for the
Presumption of Continuity in the Claim to Continued Statehood of Small Island
States?’, Melbourne Journal of International Law 22, no. 2 (December 2021):
357–382.

Mobility as a violation of law 75
Whereas states can function without effective government, it is difficult to imagine
a state without territory. The dominance of the territoriality of statehood has
immobilized the state and elevated the meaning and the role of borders in inter-
national law. Delimitation of borders, including maritime delimitation is crucial
for the state, and for access to and control of resources, and border disputes con-
stitute the topic of a great bulk of judgments by international courts such as the
International Court of Justice.
24
Olivia Barr captures the relationship between law
and territory in the nation-state as follows
… think of sovereignty, territory and the nation-state. What image do
they evoke about the place of law? Is it stable? Is it moving? Is it nei-
ther? One common image projected by sovereignty, territory and the
state is an image of a certain physical place of law: a steady place that a
state-based law calls home; a legal home supported by a landscape named
‘territory’,
25
where the state and law presents itself as impenetrably stable.
26
Importantly,
borders determine the material space of the state, therefore, also the space of
both law and values of the nation-state community, stabilising both in that
territorially delimited space. Sherally Munshi illustrates the relationship
between territory, borders, law, and values by analysing the formation of the
southern border of the US in the 19
th
century, where the desire to expand the
territory was not coupled with the desire to include the indigenous population
of Mexico into the state. Discussing the provisions of the treaty of Guadalupe
Hidalgo between the USA and Mexico,
27
Munshi shows how individual Amer-
ican Southern States were recognized as states only when the majority of their
population became white.
28
In this way the borders of the US have been con-
firmed only when the people within them represented certain values (linked to
whiteness) that were considered crucial for the state.
29
Borders do not only
serve the entities such as the nation-state but can perform similar functions on a
regional level. In the EU for instance, one notable example of value indication is
the portfolio of one of the new Commissioners of the EU, first titled as “Pro-
tecting” and later “Promoting the European Way of Life.” In the portfolio, the
European Way of Life is built around solidarity, peace of mind, and security
and it aims to juxtapose European values with those represented by incoming
24 Jan Klabbers, International Law, 1st ed. (Cambridge: Cambridge University Press,
2013), 237.
25 Barr, A Jurisprudence of Movement, 140.
26 Barr, 144.
27 Treaty of Guadalupe Hidalgo (2 February 1848).
28 Sherally Munshi, ‘Unsettling the Border’, UCLA Law Review 67, no. 6 (2021 2020):
1720–1767, 1748.
29 Munshi, ‘Unsettling the Border’.

76 Mobility as a violation of law
irregular migrants using the indicator of legal status as a determinant of the
persons’ adherence to these values.
30
To produce and maintain the stability of the state (or other entities such as
the EU) and its values, the territorially bound law needs to determine and
maintain the distinction between the inside and the outside, both by regulating
access to citizenship (as discussed in Chapter 2) and residence and controlling
the movement across geographical borders. Law facilitates both inclusion and
exclusion of different groups of people in states. Various modern measures and
procedures aimed at controlling the crossings of international borders and
making the crossings orderly emerged in the mid-19
th
century, including pass-
ports and numerous other requirements for movement – such as financial or
insurance-related. These measures were adopted by states with the purpose of
embracing their citizens, in other words keeping them within the state territory,
in order to extract from them resources necessary for the functioning of the
state.
31
At the same time, these measures supported the power of sovereign
states to control movement of non-citizens in or out of their territory, con-
tributing to the stable image of the state as a closed entity.
Traditionally, border control happens at the geographical borders of the
state. States, with the increased ability, through manpower or technology, to
control their borders were able for instance to introduce travel documents and
perform their checks at designed crossing points.
32
Increasingly, however, also
as a result of the globalization processes, broadly understood borders have
moved both inside and outside of the state territory,
33
contributing to recon-
stitution of sovereignty by states through construction of their capacities at
different societal levels.
34
This includes for instance, use of rhetorical and cul-
tural borders separating insiders from outsiders within the state territories,
physical reinforcement of geographical borders through border securitization
and militarization, and deterritorialization and externalization of borders
35
through various forms of deterrence. To describe these processes, Ayelet Sha-
char uses the terminology of mobility in order to show the operation of such
“shifting border” defined as a set of legal techniques and innovations that
30 Magdalena Kmak and Eliza Pascucci, ‘Eurooppalaizen Elämäntavan Suojeleminen’,
Politiikasta.Fi (blog), 11 July 2019, https://politiikasta.fi/eurooppalaizen-elamantava
n-suojeleminen/ (accessed 18.12.2022).
31 John C. Torpey, The Invention of the Passport: Surveillance, Citizenship and the
State (Cambridge: Cambridge University Press, 2000), 12.
32 Torpey.
33 Didier Bigo and Elspeth Guild, ‘Policing in the Name of Freedom’ in Controlling
Frontiers: Free Movement into and within Europe (Abingdon, Oxon: Routledge,
2016), 1–13.
34 Saskia Sassen, Territory, Authority, Rights: From Medieval to Global Assemblages,
Updated ed. edition (Princeton, NJ: Princeton University Press, 2008), 416.
35 Nancy A. Wonders, ‘Sitting on the Fence – Spain’s Delicate Balance: Bordering,
Multiscalar Challenges, and Crimmigration’, European Journal of Criminology 14,
no. 1 (1 January 2017): 7–26, 9.

Mobility as a violation of law 77
regulate the movement of people.
36
Through these measures, borders become
“moveable,” or turn into a transportable legal wall that “variably shrinks,
expands, disappears, and reappears across space and time in the service of
managed and selective migration and mobility regimes,”
37
in order to enforce
order on mobility.
Sovereign control of migration
Borders together with the institution of citizenship contribute, therefore, to the
process of sorting, ranking, and then filtering mobility into a differentiated
hierarchy of more or less permissible and more or less prohibited mobilities
38
contributing to the perceived stability of the nation-state,
39
which through
expansion by expulsion
40
produces and reproduces various types of legal enti-
ties, such as citizens, desired foreigners, refugees, or irregular migrants, that
remain in a dynamic relationship to one another. The prerogative of states to
control the mobility of foreigners is considered to be a well-established princi-
ple of international law. The principle was however first spelled out only in the
mid-19
th
century.
41
As the US Supreme Court underlined in the case of Nishi-
mura Eiku from 1891
[i]t is accepted maxim of international law, that every sovereign nation has
the power, as inherent in sovereignty, and essential to self-preservation, to
forbid the entrance of foreigners within its dominions, or to admit them
only in such cases and upon such conditions as it may see fit to prescribe.
42
The principle of sovereign control over the movement of foreigners to and
within state territory became a dominant principle of international law limited
only by certain exceptions as regulated in international refugee or human rights
law. As the ECtHR in Abdulaziz Cabalez and Balkandali underlined in 1985
“as a matter of well-established international law and subject to its treaty
36 Shachar, The Shifting Border,7.
37 Shachar, 20.
38 Nicolas De Genova, ‘Debate: The Free Movement of People around the World
Would Be Utopian’, 146, http://www.nicholasdegenova.net/13.html.
39 Gilles Deleuze and Felix Guattari, A Thousand Plateaus: Capitalism and Schizo-
phrenia, trans. Brian Massumi, 1st ed. (Minneapolis: University of Minnesota Press,
1987).
40 Thomas Nail, The Figure of the Migrant, 1 edition (Stanford, California: Stanford
University Press, 2015); Nail, Theory of the Border; Thomas Nail, Being and
Motion (New York, NY: Oxford University Press, USA., 2019), 120.
41 For the criticism see de Vries and Spijkerboer, ‘Race and the Regulation of Interna-
tional Migration. The Ongoing Impact of Colonialism in the Case Law of The
European Court of Human Rights’, 300.
42 Nishimura Eiku v. United States, No. 142 US 651 (Supreme Court of the United
States 1891).

78 Mobility as a violation of law
obligations, a State has the right to control the entry of non-nationals into its
territory.”
43
The importance of this doctrine for the regulation of contemporary mobility
lies, as de Vries and Spijkerboer argue, in its development along the processes
of the gradual abolition of slavery in the USA. The abolition of slavery required
additional labour but at the same time raised concerns over the increased pre-
sence of foreign workers of different race (Chinese) and its effect on the white
population.
44
Ultimately, these developments led to asserting the rights of states
to control migration and the Chinese Exclusion legislation became widespread
also in other countries where the presence of foreigners raised similar concerns
as in the USA.
45
The importance of the doctrine lies also with its connection to
the processes of decolonization accompanied by limitation of the rights of
former colonial subjects to acquire the citizenship of the metropole state. The
doctrine became, therefore, a tool to limit or exclude the presence of citizens of
former colonies who were now treated as undesired foreigners.
46
For these
reasons, as de Vries and Spijkerboer argue, the application of the doctrine of
sovereign control of migration by the ECtHR in the case of Abdulaziz Cabalez
and Balkandali constitutes discrimination based on race.
47
In this case the Court
confirmed the right of states to grant preferential treatment to immigrants with
close links with them (based on nationality or ancestry) even though these criteria
“had been introduced with the foreseeable and, in all likelihood, intended
consequence of restricting the immigration of non-whites.”
48
The doctrine of sovereign control of migration does not function, therefore,
as a neutral principle. It constitutes a tool of distinction based on nationality
and race, upkeeping the legacies of coloniality/modernity
49
and generating
unequal capacities for mobility. Together with the principle of mobility as a
right the doctrine of sovereign control contributes to division of world mobility
into orderly and disorderly. The distinction between orderly and disorderly
mobility constitutes the backbone of the contemporary nation-state system and
orients the perception of statehood, community, and law as stable. To produce
and maintain the perception of stability of the nation-state national and inter-
national law regulates the access to state membership and controls the
43 Abdulaziz, Cabales, and Balkandali v UK, No. 9214/80; 9473/81; 9474/81 (European
Court of Human Rights 28 May 1985) para 67.
44 de Vries and Spijkerboer, ‘Race and the Regulation of International Migration. The
Ongoing Impact of Colonialism in the Case Law of The European Court of Human
Rights’, 296–97.
45 de Vries and Spijkerboer, 297.
46 de Vries and Spijkerboer, 298.
47 de Vries and Spijkerboer, 299; Spijkerboer, ‘The Global Mobility Infrastructure’,
467.
48 de Vries and Spijkerboer, ‘Race and the Regulation of International Migration. The
Ongoing Impact of Colonialism in the Case Law of The European Court of Human
Rights’, 301.
49 Mayblin, Asylum after Empire, 30.

Mobility as a violation of law 79
movement across geographical borders. This system operates through the con-
cept of citizenship (discussed in the previous chapter) and the global mobility
infrastructure. The nation-state monopolizes the legitimate means of movement
and supports the movement of those that are included as desirable. The privi-
leged mobility of those with top tier passports has been necessarily juxtaposed
with restrictions or exclusions of other forms of disorderly mobility through the
limited access to the means of movement.
50
I argue that mobility of people
labelled as disorderly is always already a potential violation of law that must be
prevented through the existing legal apparatus, that also includes limitation of
access to rights protection.
51
Legal construction of refugee mobility in the EU and European human rights
law serves as an illustration of this process. As Chimni
52
and Mayblin
53
argue,
through its original territorial limitation to refugees coming from Europe (that
has only been removed through the 1967 Protocol Relating to the Status of
Refugees) the refugee regime has been designed to exclude colonial and former
colonial people from protection. The exclusion has been supported by the so-
called myth of difference – constructing the ideal refugee as a white, male, and
anti-Communist, and asylum seekers and refugees from the outside of Europe
as ultimately different from that ideal refugee.
54
As both Chimni and Mayblin
show, however, the basis for persecution has not been different, and the groups
of white refugees and refugees from former colonial countries should not have
been distinguished. Despite this similarity, access to asylum of people arriving
form the former colonies has been increasingly limited in laws of the countries
in the global North. As a result many have been forced to use irregular means
to access protection. Such a constructed refugee regime serves not only the
purpose of protection but also the distinction and exclusion coding of some of
the asylum seekers as orderly and others as disorderly based on markers such as
citizenship or race and regulating their access to global mobility infrastructure
and protection based on these distinctions.
An example of the differential coding of refugee mobility is, what can be
called, a double-faced figure of a refugee.
55
Here the figure of a refugee becomes
fragmented based on their orderly or disorderly mobility. As I argued earlier,
50 Spijkerboer, ‘The Global Mobility Infrastructure’.
51 On the impact of coloniality and racialization on access to human rights see de Vries
and Spijkerboer, ‘Race and the Regulation of International Migration. The Ongoing
Impact of Colonialism in the Case Law of The European Court of Human Rights’;
Spijkerboer, ‘Coloniality and Recent European Migration Case Law’.
52 B.S. Chimni, ‘The Geopolitics of Refugee Studies: A View from the South’, Journal
of Refugee Studies 11, no. 4 (1 January 1998): 350–374.
53 Mayblin, Asylum after Empire.
54 Chimni, ‘The Geopolitics of Refugee Studies’, 351.
55 Magdalena Kmak, ‘Between Citizens and Bogus Asylum Seekers: Management of
Migration in the EU through the Technology of Morality’, Social Identities 21, no. 4
(2015); Mezzadra and Neilson, Border as Method, or, the Multiplication of Labor,
144.

80 Mobility as a violation of law
subjectivity is intimately linked with mobility and the type of mobility also
affects inclusion. Whereas those moving in an orderly fashion can be included,
excessive mobility marks persons as Others and prevents their full inclusion. I
argue that in the EU, the inclusion of asylum seekers is either enhanced or
prevented depending on where they come from and consequently how orderly
their movement is. Such understanding fuels the fragmentation of refugee sub-
jectivity into the (orderly) genuine refugee and (disorderly) bogus asylum
seeker. The genuine refugee is the one that follows the law and moves in an
orderly fashion. Often, they wait to be moved, through the resettlement proce-
dure, although exceptions are being made in certain circumstances (such as in
the case of persons fleeing the war in Ukraine in 2022 or Angela Merkel’s
decision from 2015 that allowed persons in a refugee situation from Syrian
registered elsewhere in Europe to come to Germany). From the modernity/
coloniality perspective the genuine refugee is, therefore, civilizable
56
because
they can be put into the form of the orderly movement. In consequence they
become subjects of rights. The bogus asylum seeker on the other hand is
uncivilizable because of their unregulated movement. The bogus asylum seekers
that takes their lives into their own hands (for instance by crossing a border
without permission) are outside of the orderly movement that characterizes the
liberal subject. In consequence, the bogus asylum seeker is excluded from being
the subject of rights. In other words, rights become rewards for those who fit
the demands of orderly movement – who are the right kind of mobile subjects.
This reasoning is very clearly visible in the recent controversial judgment of the
ECtHR in N.D. & N.T. case that dealt with the question of collective expulsions
based on article 4 of the Protocol no. 4 to the ECHR.
57
In N.D. & N.T. v. Spain,
the ECtHR has considered the legality of forced return by Spain of a group of
about 75 persons that have crossed the border of Spain in the Melilla enclave in
Morocco. The Grand Chamber has reversed the earlier judgment of the lower
Chamber stating that Spain has violated article 4 of Protocol 4 of the European
Convention. In the final judgment, the Grand Chamber argued that by forcefully
returning the group of migrants who entered Melilla by climbing the fence, Spain
has not violated the obligations of the Human Rights Convention but rather used
their sovereign right to control migration. According to the arguments outlined by
the Court, Spain should not be responsible for providing rights to those who have
through their own action violated the Spanish law. In other words, the expulsion is
a result of these persons’ own culpable act for which the Government of Spain
does not take responsibility. As the Court argued, these migrants chose to cross the
fence despite having numerous opportunities to enter Spain, including the
56 Peter Fitzpatrick, Law as Resistance: Modernism, Imperialism, Legalism (Abingdon,
Oxon; New York, NY: Routledge, 2008), 75. See also discussion on modern uni-
versal subject in Chapter 1.
57 N.D. and N.T. v. Spain, No. 8675/15; 8697/15 (European Court of Human Rights 13
February 2020).

Mobility as a violation of law 81
possibility to apply for asylum at the border crossing point of Beni Enzar.
58
In a
notable passage the Court stated that
In so far as the Court has found that the lack of an individualized proce-
dure for their removal was the consequence of the applicants’ own conduct
in attempting to gain unauthorized entry at Melilla (…), it cannot hold the
respondent State responsible for not making available there a legal remedy
against that same removal.
59
In other words, the Court had made an exception to the prohibition of collec-
tive expulsions in the ECHR by claiming that unlawful behaviour by migrants
might exclude Spain’s responsibility for collective nature of an expulsion.
What follows from this decision of the ECtHR, is that the access to rights guar-
anteed in the ECHR is dependent on the lawful or unlawful behaviour of the appli-
cants – the access to human rights is only granted to those who move in an orderly
fashion. Access to rights is, therefore, not universal and based on human dignity but
depends on the persons’ own conduct and good behaviour. The focus of judges on
the conduct of the migrants, instead of the obligation of Spanish authorities to
comply with the ECHR has shifted the emphasis from the rights of individuals
towards the sovereignty of the state. As Sergio Carrera comments, “[t]he Grand
Chamber’s choice to first assess whether the individual is worthy of human rights
contradicts Article 1 ECHR and the Strasbourg Court mandate to impartially and
independently supervise States parties’ compliance with everyone’s human rights
within their jurisdiction.”
60
The distinction between orderly and disorderly mobility
as rooted in modernity/coloniality explains therefore the gap between the theoretical
rights-bearing human and the lived reality of the Other who struggles to access the
right to asylum.
61
The figure of the colonized (or formerly colonized) is thus inher-
ently dissociated. It is called to be the same and therefore have equal access to rights,
yet it is denied such equality in concrete situations due to its disorderly mobility.
62
Irredeemable Other
Mobility of the uncivilizable bogus asylum seeker is always already constructed
as a violation of law. I argue that through various restrictive measures, that do
58 In reality, however, as the number of the NGOs participating in the case claimed,
such option was very much limited and available practically only to those who
arrive there from the Middle East (Syria). Others, mostly from Sub-Saharan Africa,
would not be able to effectively apply for the protection.
59 N.D. and N.T. v. Spain paragraph 242.
60 Sergio Carrera, ‘The Strasbourg Court Judgement “N.D. and N.T. v Spain”:A
“carte Blanche” to Push Backs at EU External Borders?’, Working Paper (Migration
Policy Centre, 2020), vii.
61 Mayblin, Asylum after Empire, 39.
62 Fitzpatrick, Law as Resistance: Modernism, Imperialism, Legalism, 75.

82 Mobility as a violation of law
not only affect cross-border travel but spread into other human activities and
take over political, social, economic, and cultural spheres of life,
63
a subjectivity
of Irredeemable Other is constructed. Irredeemable Other is an alter ego of the
always already included European liberal subjectivity – a migrant that is always
already excluded from and as a principle unable to fit into the host societies.
The figure of always excluded Other has been conceptualized in migration lit-
erature for instance as “illegal” subjectivity by Catherine Dauvergne
64
or the
subjectivity of the “Crimmigrant Other” by Katja Franko.
65
As Dauvergne
writes, in case of these subjects, illegality becomes an identity of its own,
homogenizing those on the move, removing any difference and individuality,
including the reasons to migrate or being on the move. It produces a globally
coherent view that there are proper and improper reasons to migrate
66
turning
some mobility into essentially desirable and orderly and other into essentially
undesirable and disorderly.
The illegal or crimmigrant subjectivity is ascribed to certain groups of
people, but not to others despite statistical evidence often showing the opposite.
For instance, even though the biggest group of overstayers in Australia have
been British citizens not migrants from the global South,
67
the latter group is
usually portrayed as violating Australia’s migration laws. Similarly, Estonians,
who are EU Citizens, rather than other groups of third-country nationals, have
been the biggest group of those held in detention and expelled from Finland.
68
Finally, as data from before Russia’s full-scale aggression on Ukraine in 2022
show, the largest groups among enforced removals and detected illegal stays in
the EU countries have concerned Ukrainian and Albanian citizens;
69
thus, going
against the dominant narratives that portray racialized migrants or those from
outside the EU as the culprits of migration law violations.
70
To be sure, dis-
orderly movement can also be discussed as a behaviour of EU Citizens moving
within the EU Area of Freedom, Security and Justice, that arguably is not
63 Spijkerboer, ‘The Global Mobility Infrastructure’, 468.
64 Catherine Dauvergne, Making People Illegal: What Globalization Means for
Migration and Law (Cambridge: Cambridge University Press, 2008).
65 Franko, The Crimmigrant Other.
66 Dauvergne, Making People Illegal, 18.
67 Tom Geoghegan, ‘The British Illegal Immigrants’, BBC News, 2 February 2005,
http://news.bbc.co.uk/2/hi/uk_news/magazine/4226949.stm (accessed 18.12.2022).
68 Jukka Könönen, ‘Legal Geographies of Irregular Migration: An Outlook on Immi-
gration Detention’, Population, Space and Place 26, no. 5 (July 2020): 4.
69 Könönen, 3.
70 See however work on coloniality and racialization of migrants from Post-Soviet
countries: Daria Krivonos and Lena Näre, ‘Imagining the “West” in the Context of
Global Coloniality: The Case of Post-Soviet Youth Migration to Finland’, Sociology
53, no. 6 (December 2019): 1177–1193; Daria Krivonos, ‘Migrations on the Edge of
Whiteness: Young Russian-Speaking Migrants in Helsinki, Finland’ (Helsinki, Uni-
versity of Helsinki, 2019).

Mobility as a violation of law 83
always based on a well-informed or planned manner
71
but often spontaneously
as exploration or adventure.
72
To be sure, such construction of illegality and criminality functions as a con-
stitutive for identity building in contemporary Europe.
73
The figure of the illegal
migrant,the bogus asylum seeker,
74
or the Crimmigrant Other serves, through
their exclusion from rights as result of their illegal status or criminal behaviour, the
homogenization and stabilization of the nation-state through measures aimed at
their exclusion. The nation-state and state sovereignty are powered and main-
tained not only through creation and maintenance of borders but also through the
failure of borders and the construction and maintenance of illegality. In Making
People Illegal, Catherine Dauvergne shows how illegality that is produced by law
is particularly important for sovereignty and globalization because through viola-
tion of the border regime it ultimately defines the scope of the sovereign power.
75
In other words, the nation-state and state sovereignty are produced by borders,
and the processes of bordering and the failure of borders in preventing crossing is
needed to maintain the distinctions produced by these borders. This happens on
the one hand through the implication of law in constructing illegal migration, and
on the other in how it functions as a tool deployed to confront it, strengthening
territorial entities encompassed by these borders. An excellent example of these
processes is; for instance, the USA where on the one hand the immigration system
has been described as broken and constantly failing while at the same time migra-
tion has been reframed by the previous Trump administration in terms of white
nationalism and a threat not only to the physical security of white Americans but
the survival of the nation itself.
76
Similarly, at the EU level, unauthorized migra-
tion is portrayed as a security threat while the measures adopted to combat it have
risen to new levels of complexity strengthening the process of EU integration.
77
We
can see, therefore, that what I call disorderly mobility as enshrined in the figure of
Irredeemable Other is necessary for nation-states to fake their stability and rein-
force their sovereignty. The need for the illegal
78
or criminal migrant
79
as a neces-
sary element of a sovereign state is sometimes even openly expressed by the
authorities. For instance, the informants in Katja Franko’sinterviewswith
71 UN General Assembly, ‘Global Compact for Safe, Orderly and Regular Migration’,
Pub. L. No. A/RES/73/195 (2018).
72 I am grateful to Stephen Phillips for this point.
73 Franko, The Crimmigrant Other, 13.
74 Kmak, ‘Between Citizens and Bogus Asylum Seekers: Management of Migration in
the EU through the Technology of Morality’; Monica Den Boer, ‘Moving between
Bogus and Bona Fide: The Policing of Inclusion and Exclusion in Europe’,in
Migration and European Integration: The Dynamics of Inclusion and Exclusion, ed.
Robert Miles and Dietrich Thränhardt (London: Associated University Press, 1995).
75 Dauvergne, Making People Illegal, 48.
76 Munshi, ‘Unsettling the Border’, 1723.
77 Franko, The Crimmigrant Other, 136.
78 Dauvergne, Making People Illegal.
79 Franko, The Crimmigrant Other.

84 Mobility as a violation of law
representatives of the Norwegian police recognize a growing need for the “pro-
duction” of immigration-related criminal cases.
80
But the figure of the Irredeemable Other functions also, as Katja Franko argues,
as a tool of externalization of discomfort and being blamed for lowering or getting
rid of the moral responsibility for human rights violations
81
in order to maintain
the unequal mobility privileges of other groups that exercise their mobility.
82
In
other words, these figures of illegal or crimmigrant Others are constructed in order
to justify the removal of rights from racialized migrants that goes beyond strictly
defined migration control measures, and also often include differential or particu-
larly harsh treatment in comparison with treatment usually directed towards citi-
zens. This approach is visible for instance in the case of Eastern Europeans in
Norway, towards whom, as Franko shows, authorities demand the infliction of a
higher level of pain and harsher conditions of detention in order to achieve deter-
rence.
83
She quotes an interviewed police officer who says: “For Eastern Eur-
opeans, prison is like a hotel where they get a daily allowance.”
84
This shows that
simple immobilization of those who are not mobile in an orderly fashion is not
punishment enough, but requires additional harsh elements, spiralling into con-
tinuous demand for a higher standard of behaviour for the protection of rights (for
instance excluding human rights protection in cases of culpable conduct)and
harsher treatment (pushbacks or externalization of protection, etc.) for lack or
perception of lack of such behaviour. Such a process of harsher and harsher treat-
ment and exclusion of Irredeemable Other in turn orients the production and
reproduction of the nation-state. In the next section, I will show more concretely
how mobility that is turned into a violation of law is an engine fuelling the
operation of the nation-state machine in times of globalization. This happens
through the multifaceted processes of bordering.
The processes of bordering
Mobility as a violation of law is produced and maintained in international and
national law of the global North through various measures of migration control
such as expulsion or prevention of arrival. The over-encompassing role of
migration law in the global North is to strengthen state legitimacy and sover-
eignty exposed as unstable by the processes of globalization and minoritization.
State legitimacy lies, therefore, not in sovereignty, but it is rather sovereignty
that requires constant reinforcement for its legitimacy and relevance.
85
Legal
measures are directed both towards those who have already entered the terri-
tory of the state (such as detention, expulsions, entry bans, and revocation of
80 Franko, 63.
81 Franko, 18.
82 Franko, 19.
83 Franko, 73.
84 Franko, 73.
85 Samaddar, The Postcolonial Age of Migration, 52.

Mobility as a violation of law 85
citizenship) but also, they are increasingly aimed at prevention of arrival,
including pushbacks and other external deterrence measures that limit access to
mobility such as strict requirements for family reunification. Whereas some of
these measures exclude mobile individuals from existing rights, other aims to
distance those aiming to arrive physically from the state and through this, to
prevent the rights and state responsibility to emerge.
86
In Europe and in the EU but also in other regions of the global North sovereignty
has been increasingly reinforced through measures of securitization of territory and
borders
87
and criminalization of migration,
88
increased deterrence,
89
externaliza-
tion,
90
and offshore processing
91
as well as the increased importance of migration law
86 Goodwin-Gill, Guy & McAdam, Jane, The Refugee in International Law, (Oxford:
Oxford University Press, 2007), p. 408.
87 Didier Bigo, ‘Security and Immigration: Toward a Critique of the Governmentality
of Unease’, Alternatives: Global, Local, Political 27, no. 1 suppl (1 February 2002):
63–92; Jef Huysmans, The Politics of Insecurity: Fear, Migration and Asylum in the
EU, New edition (Abingdon, Oxon: Routledge, 2006); Mary Bosworth and Mhairi
Guild, ‘Governing Through Migration Control Security and Citizenship in Britain’,
British Journal of Criminology 48, no. 6 (1 November 2008): 703–719; Mehrnoosh
Farzamfar, ‘The Implications of the Securitization of Immigration upon the Right to
Seek Asylum in the European Union: An Interdisciplinary Legal Analysis’ (Helsinki,
University of Helsinki, 2021), https://helda.helsinki.fi/bitstream/handle/10138/334434/
farzamfar_mehrnoosh_dissertation_2021.pdf?sequence=1&izallowed=y (accessed
10.12.2022); Bigo and Guild, Controlling Frontiers; Elspeth Guild, Security and
Migration in the 21st Century (Cambridge: Polity Press, 2009).
88 Anna Aliverti, ‘Making People Criminal: The Role of the Criminal Law in Immi-
gration Enforcement’, Theoretical Criminology 16, no. 6 (2012): 417–434; European
Union Agency for Fundamental Rights, ‘Criminalization of Migrants in an Irregular
Situation and of Persons Engaging with Them’, 2014, https://fra.europa.eu/sites/defa
ult/files/fra-2014-criminalisation-of-migrants_en.pdf (accessed 18.12.2022); Didier
Bigo, ‘Criminalization of “Migrants”: The Side Effect of the Will to Control the
Frontiers and the Sovereign Illusion’,in Irregular Migration and Human Rights:
Theoretical, European and International Perspectives, ed. Barbara Bogusz et al.
(Leiden: Martinus Nijhoff Publishers, 2004); Elspeth Guild, ‘Criminalization of
Migration in Europe: Human Rights Implications’ (Office of the Commissioner for
Human Rights, Council of Europe, 2010), CommDH/IssuePaper (2001)1; Franko,
The Crimmigrant Other; Maria Joao Guia, Maartje van der Woude, and Joanne van
der Leun, eds., Social Control and Justice: Crimmigration in the Age of Fear (The
Hague; Portland, OR: Eleven International Publishing, 2013).
89 Thomas Gammeltoft-Hansen and Nikolas F. Tan, ‘The End of the Deterrence
Paradigm? Future Directions for Global Refugee Policy’, Journal on Migration and
Human Security 5, no. 1 (March 2017): 28–56; Stephen Phillips, ‘Nordic Exception-
alism or a Well-Trodden Path? Asylum Policy Lessons From the US and Australia’,
Retfaerd 1 (2023): 55–68.
90 David FitzGerald, Refuge beyond Reach: How Rich Democracies Repel Asylum
Seekers (New York, NY: Oxford University Press, 2019); Thomas Gammeltoft-
Hansen, Access to Asylum International Refugee Law and the Globalization of
Migration Control (Cambridge: Cambridge University Press, 2013).
91 ‘Denmark Asylum: Law Passed to Allow Offshore Asylum Centres’, BBC News,6
March 2021, https://www.bbc.com/news/world-europe-57343572 (accessed 18.12.2022);

86 Mobility as a violation of law
overspilling into other areas of law.
92
These measures are interrelated. According to
Gammeltoft-Hansen and Tan, deterrence and exterritorialization measures fall into
categories of: non-admission policies limiting access to the asylum procedure; non-
arrival measures preventing access to the territory of asylum states through migration
control; offshore asylum processing and relocation of refugees to third countries;
criminalization of irregular migration and human smuggling; and indirect deterrence
measures intended to make the asylum country less attractive.
93
On the one hand,
these bordering measures are spatial, as they govern the movement of mobile persons
from one geographical point to another or immobilize the mobile person in one place.
On the other hand, their effect is also temporal as it often reaches into the future with
the aim of preventing both intended and yet unplanned mobility.
94
Whereas these
measures are aimed at the exclusion of various categories of mobile persons that are
not encompassed by mobility as a right, they particularly target those subjectivized as
Irredeemable Others. The operation of these measures has often been conceptualized
in scholarship with the use of a ‘Fortress Europe’ metaphor,
95
that recently in parti-
cular has been applied in relation to various legal, digital, and material wall-build-
ing,
96
as well as other political, economic, and cultural discourses,
97
juxtaposing them
with the freedom of movement of the EU citizens.
98
At the same time the body of
scholarship has shown how these measures of securitization, criminalization, and
externalization of migration are not meant to stop but rather produce differ-
ential mobility and channel it to specificplaces andends(forinstanceas labour)
contributing to the maintenance of the EU as a political entity.
99
‘Operation Sovereign Borders’ (Australian Government), accessed 15 September 2022,
https://osb.homeaffairs.gov.au (accessed 18.12.2022).
92 Kmak, ‘Migration Law as a State (Re)Producing Mechanism’.
93 Gammeltoft-Hansen and Tan, ‘The End of the Deterrence Paradigm?’, 34.
94 See for instance Jukka Könönen, ‘Borders in the Future: Policing Unwanted Mobility
through Entry Bans in the Schengen Area’, Journal of Ethnic and Migration Studies,
31 January 2022: 1–18.
95 Jukka Könönen, ‘Muuttoliikkeiden Hallinta Ja Hallitsemattomuus: Huomioita
Rajojen Ja Liikkumisen Suhteista Euroopassa’, Tiede & Edistys, no. 4 (1 April
2015): 333–351, 334.
96 Ashley Binetti Armstrong, ‘You Shall Not Pass! How the Dublin System Fueled
Fortress Europe’, Chicago Journal of International Law 20, no. 2 (1 January 2020):
332–383, 363–364.
97 Jiska Engelbert, Isabel Awad, and Jacco Van Sterkenburg, ‘Everyday Practices and
the (Un)Making of “Fortress Europe”: Introduction to the Special Issue’, European
Journal of Cultural Studies 22, no. 2 (April 2019): 133–143, 134.
98 See chapter 2 of this book; Also Elia Zureik and Mark B. Salter (eds), Global Sur-
veillance and Policing: Borders, Security, Identity (Abingdon, Oxon: Routledge,
2012), 234.
99 Enrica Rigo, Rajojen Eurooppa (Helsinki: Like, 2009); Sandro Mezzadra and Brett
Neilson, Border as Method, or, the Multiplication of Labor, 2013; Thomas Nail,
Theory of the Border (Oxford; New York: Oxford University Press, 2016); Ranabir
Samaddar, The Postcolonial Age of Migration (Abingdon, Oxon; New York: Rou-
tledge, 2020).

Mobility as a violation of law 87
Securitization, and criminalization
In the EU, securitization and criminalization of migration have been embedded
in the foundational narrative of the EU,
100
and have over the time of the dee-
pening of European integration, gradually moved migration rules towards
greater externalization and deterrence.
101
Security studies defined securitization
as a speech-act with the use of which a particular audience is convinced that a
certain matter constitutes an unprecedented threat requiring customized policy
measures to defy it.
102
Further, the critical security studies has shown how
securitization happens also through policies and legal measures.
103
Extensive
scholarship shows how through legal, political, or discursive measures certain
groups always already represent a threat, and their movement needs to be
stopped even before they are able to arrive within the jurisdiction of the state.
In turn criminalization, including criminalization of migration means the man-
agement of migration via the application of substantive criminal law and crim-
inal prevention and enforcement mechanisms.
104
The phenomena of both
securitization and criminalization of migration and the interrelation between
administrative and criminal law in the context of migration have been exten-
sively researched,
105
and recently also conceptualized as crimmigration – a
multifaceted relationship between migration and criminal law that attained
such a level of hybridity to be considered a new form of control – a crimmi-
gration control.
106
The debate on crimmigration originated in the US,
107
but
there has been an increased focus on this topic in the EU as well, where it has
100 Magdalena Kmak, ‘Limits of Sovereignty?: Rethinking the Conflict between Human
Rights and Immigration in the European Union’, Finnish Yearbook of International
Law 20, no. 2009 (2011): 53–81.
101 ‘Communication from the Commission on a New Pact on Migration and Asylum’,
Pub. L. No. COM(2020) 609 final (2020).
102 Thierry Balzacq, ‘A Theory of Securitization: Origins, Core Assumptions, and Var-
iants’,in Securitization Theory: How Security Problems Emerge and Dissolve, ed.
Thierry Balzacq (Abingdon, Oxon: Routledge, 2011); Farzamfar, ‘The Implications
of the Securitization of Immigration upon the Right to Seek Asylum in the European
Union: An Interdisciplinary Legal Analysis’, 95.
103 Bigo, ‘Security and Immigration’.
104 Valsamis Mitsilegas, The Criminalization of Migration in Europe: Challenges for
Human Rights and the Rule of Law, SpringerBriefs in Law (Cham Heidelberg:
Springer, 2015), 2.
105 Guild, Security and Migration in the 21st Century; Maartje van der Woude, Vanessa
Barker, and Joanne van der Leun, ‘Crimmigration in Europe’, European Journal of
Criminology 14, no. 1 (1 January 2017): 3–6; Bosworth and Guild, ‘Governing
Through Migration Control Security and Citizenship in Britain’.
106 Katja Franko Aas, ‘The Ordered and the Bordered Society: Migration Control,
Citizenship, and the Northern Penal State’,in The Borders of Punishment: Migra-
tion, Citizenship, and Social Exclusion (Oxford, UK: Oxford University Press, 2013),
25.
107 Juliet P. Stumpf, ‘The Crimmigration Crisis: Immigrants, Crime, and Sovereign
Power’, American University Law Review 56 (2006).

88 Mobility as a violation of law
been linked with securitization.
108
In particular, scholars in the European con-
text have approached crimmigration more broadly, not ascribing it any rigid
definition, but considering it as a sensitizing concept – or a lens – through
which legal and political developments in migration law and migration control
practices can be analysed.
109
Scholars have shown over the years
110
how through concrete laws and poli-
cies, migration is being constructed as a security threat, that has to be fended
off by yet another measure or technology designed to cope with that threat,
111
that not only serves political interests
112
but that also strengthens the sover-
eignty of the nation-state as such.
113
In concrete terms, law contributes to
securitization and criminalization of migration through illegalization – coding
of increasing number of categories relating to migration as outside the law –
and then regulating measures aiming at crackdown on illegal migration.
114
Likewise, coding migration-related offences (which are usually regulated in
administrative law) as crimes increases criminalization of migration, and of
persons and groups supporting them.
115
The numerous accounts by scholars
and human rights monitoring bodies referred to above show how these pro-
cesses contribute to the narrative of securitization and criminalization that has
permeated the discussion on migration in particular concerning the migration
understood in the global North as undeserved mobility.
Looking through the prism of orderly and disorderly mobility, both secur-
itization and criminalization of borders and mobility in the EU and globally has
to be seen as rearticulation of colonial distinctions.
116
To be sure, many dis-
tinctions constructed through the process of bordering have colonial origins and
were used to regulate the movement of slaves.
117
Simone Browne shows how
corporeal markers were linked with the right to travel across the border
between the US and Canada in the document called the Book of negroes – the
108 van der Woude, Barker, and van der Leun, ‘Crimmigration in Europe’; Guia,
Woude, and Leun, Social Control and Justice.
109 See for instance Maartje A.H. van der Woude, Joanne P. van der Leun, and Jo-Anne
A. Nijland, ‘Crimmigration in the Netherlands’, Law & Social Inquiry 39, no. 3 (1
September 2014), 561.
110 Louise W. Holborn, ‘The Legal Status of Political Refugees, 1920–1938’, The
American Journal of International Law 23, no. 4 (1938), 689; Hannah Arendt, The
Origins of Totalitarianism (New York: A Harvest Book, Harcourt Inc., 1985), 288.
111 Bigo and Guild, Controlling Frontiers; Bigo, ‘Security and Immigration’; Huysmans,
The Politics of Insecurity.
112 Bigo, ‘Security and Immigration’.
113 Dauvergne, Making People Illegal.
114 Dauvergne, 48.
115 European Union Agency for Fundamental Rights, ‘Criminalization of Migrants in an
Irregular Situation and of Persons Engaging with Them’.
116 Lucy Mayblin and Joe Turner, Migration Studies and Colonialism (Cambridge:
Polity Press, 2020), 144.
117 Simone Browne, Dark Matters: On the Surveillance of Blackness (Durham, NC:
Duke University Press, 2015).

Mobility as a violation of law 89
first US governmental policy document for regulation of migration. According
to the document the movement and immobility of slaves depended on the bio-
markers of the bodies including race, gender, disability, and other markers that
allowed for surveillance and determined both movement and immobility.
118
These measures have developed into modern processes of bordering and con-
trol, that do not include only citizens of former colonies
119
and can affect
national minorities such as Roma in the EU Member States.
120
They never-
theless often follow the lines of racialized colonial ranking that is also coupled
with assessment of security risks, securitization, and criminalization.
121
Externalization
A more general tendency can be observed recently of migration control mea-
sures to move outside the territorial jurisdiction of states, with the aim of dif-
fusing or relieving the state of the legal liability and human rights obligations
towards those on the move.
122
State responsibility arises in principle when the
person appears at the border and claims their willingness to enter the country,
for instance, for tourism or to seek asylum (although the jurisdiction can also
arise outside of the state territory when the state has effective control over the
place or a person
123
). Crossing the border into the state (even if in an irregular
manner) is in principle an indication that the person is within the jurisdiction of
that state.
124
In order to prevent the emergence of jurisdiction, states adopt
measures enumerated above that aim at the externalization of control of the
movement of migrants, in particular through access to the global mobility
infrastructure.
125
The scope of this access differs, and it is easier for those at the
top of the Henley Passport Index and more difficult for those at the bottom of
the list.
126
Visas and measures such as various entry/exit control systems,
127
interoperable databases, or entry bans are, therefore, the most straightforward
means of filtering wanted and unwanted mobility. For those who are not able
118 Browne, 25.
119 Krivonos and Näre, ‘Imagining the “West” in the Context of Global Coloniality’.
120 Huub van Baar, ‘Evictability and the Biopolitical Bordering of Europe’, Antipode 49,
no. 1 (2016): 212–230.
121 Franko, The Crimmigrant Other, 127.
122 Gammeltoft-Hansen and Vedsted-Hansen, Human Rights and the Dark Side of
Globalization,5.
123 In reference to migration and save and rescue at sea see Hirsi Jamaa and Others v
Italy, No. 27765/09 (European Court of Human Rights 23 August 2012).
124 N.D. and N.T. v. Spain.
125 Spijkerboer, ‘The Global Mobility Infrastructure’.
126 ‘The Henley Passport Index’, https://www.henleyglobal.com/passport-index/ranking
(accessed 24.08.2022).
127 Migration and Home Affairs, ‘Entry/Exit System (EES)’, https://home-affairs.ec.europa.
eu/policies/schengen-borders-and-viza/smart-borders/entry-exit-system_en (accessed
16.09.2022).

90 Mobility as a violation of law
to obtain visas, or for those that are forced to flee persecution, war, or unrest,
other measures are being adopted, such as overseas processing centres, that aim
at preventing them from reaching state territories and in consequence from
getting within their jurisdiction. Jurisdiction serves these measures, for instance,
by limiting the state responsibility for asylum claims only to those lodged at
official border crossing points
128
while excluding protection in the case of
culpable conduct.
129
These are examples of the number of legal, political, and
financial measures constituting the global mobility infrastructure, that are being
used to prevent people from reaching the border, notwithstanding the human
rights violations this entails. As Spijkerboer writes,
[f]aced with this dilemma, the countries in the global North have deci-
ded to have the best of both worlds. Instead of controlling access to
their territory, they have sought to control access to the global mobility
infrastructure—regardless of territory.
130
These measures, therefore, simultaneously uphold the conception of fixed terri-
toriality when it comes to guaranteeing access to rights while switching to an
increasingly mobile/elastic/flexible conception of the border when it comes to
restricting access to rights.
131
The purpose is to reinforce orderly movement,
where the border moves outside of the territory of the state in order to imple-
ment orderly departure and admission programmes.
132
In consequence, these
measures not only exclude or limit state jurisdiction but also allow using the
imaginary of the Irredeemable Other to strengthen the nation-state without the
need of having such framed mobile persons physically present. The latter
examples encompass such legal measures as career sanctions, readmission
agreements, or migration-related partnerships, such as Better Migration Man-
agement Programme, part of the EU Emergency Trust Fund for Africa
133
as well
as measures leading to externalization of protection for instance the already
mentioned Australian Pacific Solution or UK’s agreement with Rwanda. In
consequence of these policies and regulations those who are forced to leave their
countries for safety or who are looking for improvement of their lives more
generally, often are forced to use, what Spijkerboer calls, shadow mobility
infrastructure.
134
128 M.K. and Others v. Poland, No. 40503/17, 42902/17 and 43643/17 (European Court
of Human Rights 23 July 2020).
129 N.D. and N.T. v. Spain.
130 Spijkerboer, ‘The Global Mobility Infrastructure’, 456.
131 Shachar, The Shifting Border, 68.
132 Shachar, The Shifting Border.
133 Harsha Walia, Robin D.G. Kelley, and Nick Estes, Border and Rule: Global
Migration, Capitalism, and the Rise of Racist Nationalism (Chicago: Haymarket
Books, 2021), 161.
134 Spijkerboer, ‘The Global Mobility Infrastructure’, 461.

Mobility as a violation of law 91
It is argued that, through the securitization and digitalization of external
borders, the EU has become a poster child of the border security/industrial
complex.
135
This includes a set of policy, legal, digital, and material measures
the operation and interoperability of which contributes to the increasing
emphasis on border procedures. These procedures include new digital and
automated border crossing systems with the aim on the one hand to help “bona
fide third-country nationals to travel more easily”
136
while at the same time
increasing controls over visa overstayers as well as those apprehended in con-
nection with an unauthorized external border crossing. These measures also
include those disembarked following a search and rescue operation at sea and
persons who have made an application for international protection at external
border crossing points or in transit zones but do not fulfil the conditions for
entry.
137
As commentators claim, many of those measures are planned with reduced or
unclear procedural safeguards and are directed toward people who are forced to use
irregular means of travel due to the proliferation of deterrence measures. As Mehr-
noosh Farzamfar shows, the processes of securitization at both legislation and
implementation levels in the EU and the Members States are taking a leading role in
making meaningless the right to seek asylum as enshrined in article 18 of the Eur-
opean Charter of Fundamental Rights, through denial of access to the asylum
procedure.
138
EU Eastern border
These measures have contributed to the ongoing humanitarian and human
rights crisis at the EU’s Southern and Eastern borders partially also exacerbated
by the implication of the EU border agency Frontex in the human rights viola-
tions in the Mediterranean.
139
Furthermore, the ongoing crisis has also been
recently worsened by the COVID-19 pandemic as well as Belarus’ participation
in migrant smuggling,
140
temporarily putting into question the right to
135 Steve Peers, ‘Giving Back Control: British Travel to the EU after Brexit’, EU Law
Analysis, 24 July 2022, http://eulawanalysis.blogspot.com/2022/07/giving-back-con
trol-british-travel-to.html (accessed 18.12.2022).
136 Migration and Home Affairs, ‘Entry/Exit System (EES)’.
137 Migration and Home Affairs.
138 Farzamfar, ‘The Implications of the Securitization of Immigration upon the Right to
Seek Asylum in the European Union: An Interdisciplinary Legal Analysis’,6.
139 ‘EU Border Agency Frontex “Covered up” Greek Pushbacks: Reports’, Euractive.Com,
29 July 2022, https://www.euractiv.com/section/justice-home-affairs/news/eu-border-a
gency-frontex-covered-up-greek-pushbacks-reports/ (accessed 18.12.2022).
140 Vanessa Gera, Monika Scislowska, Geir Moulson, ‘EU accuses Belarus of “trafficking”
migrants toward border’, APNews, 11 November 2021, https://apnews.com/article/
european-union-belarus-europe-poland-migration-ee8912d6998a95f421c97b7c99e06f55
(accessed 19.04.2023).

92 Mobility as a violation of law
territorial asylum in the global North.
141
The stricter measures particularly
affected, however, the racialized migrants and asylum seekers.
142
In this context,
the unprecedented situation of pushbacks at the Polish-Belarusian border as
a result of a migrant smuggling operation deserves a closer look. I focus on
the EU Eastern border because the differential response of Polish authorities
towards asylum seekers aiming to cross the border from Belarus and
Ukraine illustrates the broader distinction between orderly and disorderly
mobility in the EU. Whereas during the COVID-19 pandemic and later fol-
lowing the escalation of Russia’s war against Ukraine the Polish border has
been almost completely closed to asylum seekers from Muslim countries,
asylum seekers from Belarus as well as economic migrants and refugees
from Ukrainewereallowed to enter.
143
It is important to mention that the non-acceptance of an asylum application
by the Polish Border Guards at the border with Belarus in violation of domestic
and international law is not a new phenomenon, but a part of a wider ongoing
policy of Polish authorities aiming at denying entry to racialized foreigners
coming from the territory of Belarus.
144
This policy has; nevertheless, reached a
level of human rights and humanitarian crisis in the summer of 2021 when
Polish authorities legalized pushbacks in violation of Poland’s human rights
obligations, first in the Implementing Act of 20 August 2020 and then in
amendment to the Aliens Act of 17 September 2020.
145
Legal measures were
also accompanied by the introduction of a state of emergency in 115 border
municipalities that effectively restricted media freedom as well as banned acti-
vists, lawyers, and medical and humanitarian organizations from entering the
border area.
146
In consequence, the people forced by the Belarussian authorities
to cross the border into Poland were stopped and forcibly pushed back to the
Belarussian side where they were again brutally forced to re-enter Poland,
sometimes numerous times. Some people were stranded in the forests near the
141 Daniel Ghezelbash and Nikolas Feith Tan, ‘The End of the Right to Seek Asylum?
COVID-19 and the Future of Refugee Protection’, International Journal of Refugee
Law 32, no. 4 (31 December 2020): 668–679.
142 Witold Klaus, ‘The Porous Border Woven with Prejudices and Economic Interests.
Polish Border Admission Practices in the Time of COVID-19’, Social Sciences 10,
no. 11 (13 November 2021): 435.
143 Witold Klaus, ‘The Porous Border Woven with Prejudices and Economic Interests.
Polish Border Admission Practices in the Time of COVID-19’, Social Sciences 10,
no. 11 (13 November 2021): 435.
144 Monika Szulecka, ‘The Undermined Role of (Domestic) Case Law in Shaping the
Practice of Admitting Asylum Seekers in Poland’, European Journal of Legal Studies,
no. Special Issue-Adjudicating Migrants’ Rights: What Are European Courts Saying?
(11 May 2022): 202.
145 Grupa Granica, ‘Humanitarian Crisis at the Polish-Belarusian Border’, 21 December
2021, 10, https://www.grupagranica.pl/files/Grupa-Granica-Report-Humanitarian-cri
sis-at-the-Polish-Belarusian-border.pdf (accessed 18.12.2022).
146 Grupa Granica, 3.

Mobility as a violation of law 93
border for weeks without access to food, water, and medical assistance.
147
Grupa Granica (a social movement involving Polish NGOs mobilising against
the inhuman treatment of migrants at the border) in their report from
December 2021 described the activities of the polish authorities as roundups
and illegal expulsions.
148
Documented human rights violations by Belarusian
and Polish authorities included various forms of physical and psychological
abuse, such as intimidation, coercion of dangerous actions and arbitrary
detention, collective expulsions, denial of access to food, water, shelter,
medical assistance and access to protection procedures and the right to
effective legal remedy. These measures resulted in deaths, and inhuman and
degrading treatment.
149
Even though the pushbacks based on the Imple-
menting Act of 20 August 2020 have been considered to be against Polish
law first by the Regional Court in Bielsko Podlaskie,
150
followed by judg-
ments by other courts, including Regional Administrative Court in Białys-
tok,
151
the judgments have not been implemented. This is often juxtaposed
by the admission of people fleeing war in Ukraine after 24 February 2022. It
remains to be seen, however, how the approaches to refugees and asylum
seekers that I described in this chapter will evolve, in the EU at least. As a
result of the ongoing Russian war on Ukraine, over 5.3 million refugees
from Ukraine arrived in the EU within the first three months of the war
152
prompting the EU to launch for the first time the Temporary Protection
Directive.
153
Addressing the European Parliament in September 2022, the
European Commission President Ursula von der Leyen said “Our actions
towards Ukrainian refugees must not be an exception. They can be a blue-
print for going forward.”
154
Judging from the ongoing humanitarian crisis at
the Southern and Eastern EU borders, but also recent decisions on building
147 Grupa Granica, 4.
148 Grupa Granica, 5.
149 Grupa Granica, ‘Humanitarian Crisis at the Polish-Belarusian Border’.
150 Sa˛d Rejonowy w Bielsku Podlaskim, VII Zamiejscowy Wydział Karny w Hajnówce
22 March 2022, VII Kp 203/21.
151 Wojewódzki Sa˛d Administracyjny w Białymstoku, Wydział II, 15 September 2022, II
SA/Bk 492/22
152 Frontex, ‘5.3 Million Ukrainians Have Entered EU since the Beginning of the Inva-
sion’, 6 February 2022, https://frontex.europa.eu/media-centre/news/news-release/
5-3-million-ukrainians-have-entered-eu-since-the-beginning-of-invasion-HbXkUz
(accessed 18.12.2022).
153 Council of the EU, ‘Council Directive 2001/55/EC of 20 July 2001 on Minimum
Standards for Giving Temporary Protection in the Event of a Mass Influx of Dis-
placed Persons and on Measures Promoting a Balance of Efforts between Member
States in Receiving Such Persons and Bearing the Consequences Thereof’, Pub. L.
No. 2001/55/EC (2001).
154 Jennifer Rankin, ‘“Putin Will Fail and Europe Will Prevail,” EU Chief Tells MEPs’,
The Guardian, 14 September 2022, https://www.theguardian.com/world/2022/sep/
14/putin-will-fail-and-europe-will-prevail-eu-chief-tells-meps (accessed 16.09.2022).

94 Mobility as a violation of law
more border walls,
155
it remains yet to be seen whether the experiences from
2022 will generate any meaningful changes in the EU refugee policies.
Externalization of protection
The inhuman and degrading treatment of migrants resulting from pushbacks at
the Polish-Belarusian border is of course not an unprecedented or isolated case,
but yet another example of the proliferation of deterrence measures including
pushbacks and externalization of asylum in the EU and in other parts of the
global North. As Stephen Phillips argues, these practices are not new and date
back to the measures adopted in the 1930s and 1940s, and later to the Haitian
Refugee Crisis in the US in the 1980s and 1990s where the United States directly
returned Haitian asylum seekers to Haiti without processing their claims or
detained them in the Guantanamo Base.
156
The Australian model of offshore
processing that currently stands as a blueprint for externalization originates from
these measures and is based on the one hand on deterrence campaigns such as, for
instance, the information campaign of the Australian Operation Sovereign Bor-
ders
157
directed towards those that haven’t yet set on their journeys. On the other
hand, it includes interception at sea and mandatory detention at remote locations
like Manus Island of Papua New Guinea of those who decided to travel to Aus-
tralia by boat. The system implicates Australia in human rights violations. For
instance, the practice of detention as such, and conditions in the Australian-run
detention centre have been considered in 2016 by the Supreme Court of Justice
Papua New Guinea as being in breach of the detainees’ right to personal liberty
under the Papua New Guinea constitution.
158
In Europe measures aimed at limiting the numbers of arrivals of asylum seekers
or limiting them to certain nationalities only have been proliferating recently
through such measures as the EU-Turkey deal.
159
Measures directly aiming at
155 Agence France-Presse in Helsinki, ‘Finland Passes Law to Bolster Border Fence with
Russia’, The Guardian, 7 July 2022, https://www.theguardian.com/world/2022/jul/
07/finland-passes-law-to-bolster-border-fence-with-russia (accessed 17.12.2022).
156 Christopher Mitchell, ‘U.S. Policy toward Haitian Boat People, 1972–93’, The
ANNALS of the American Academy of Political and Social Science 534, no. 1 (July
1994): 69–80; Stephen Phillips, ‘Nordic Exceptionalism or a Well-Trodden Path?
Asylum Policy Lessons From the US and Australia’, Retfaerd: Nordisk Juridisk
Tidsskrift 1 (2023): 55–68.
157 ‘Operation Sovereign Borders’.
158 Azadeh Dastyari and Maria O’Sullivan, ‘Not for Export: The Failure of Australia’s
Extraterritorial Processing Regime in Papua New Guinea and the Decision of the
PNG Supreme Court in Namah (2016)’, Monash University Law Review 42, no. 2
(2016): 308–338; For the discussion of the importance of the judgment of the
Supreme Court of Papua New Guinea see also Spijkerboer, ‘The Geopolitics of
Knowledge Production in International Migration Law’.
159 ‘EU-Turkey Statement’ (European Council, 18 March 2016), https://www.consilium.
europa.eu/en/press/press-releases/2016/03/18/eu-turkey-statement/ (accessed 13.11.2019).

Mobility as a violation of law 95
exterritorialization akin to those in Australia, have been however fairly recent. For
instance, Denmark announced its goal to receive zero asylum seekers in January
2021, aiming only to host refugees through the UN quota system.
160
In June of that
year, The Danish parliament adopted a law setting the externalization of protec-
tion scheme for relocation of asylum seekers outside of the EU,
161
(updated later to
make exception for the refugees from Ukraine
162
). Similarly, in April 2022 the UK
signed an agreement with Rwanda allowing for relocation to Rwanda of all those
arriving in the UK irregularly with limited or no possibility to return to the UK
even if granted a positive decision on refugee status.
163
Despite the cancellation of
the first flight to Rwanda in June 2022 as a result of the interim measures decision
by the ECtHR as well as domestic legal challenges and protests,
164
the UK gov-
ernment is committed to continue with the scheme, even if this would cause a
withdrawal from the ECHR.
165
Justifying the purpose of the scheme, the Danish
Minister for Immigration and Integration said, “[w]e are not against refugees
coming to Denmark. Not at all. […]Itmustbe orderly and regulated [emphasis
mine].”
166
These developments provide yet another example of the measures
that are based on, and perpetuate, the division of mobility into two modes:
orderly and disorderly. In this case, however, certain (disorderly) mobility has
not only been limited but rather banished through exclusion and the out-
sourcing of refugee protection to third countries.
167
Harsha Walia calls these
and other measures, such as the US-Canada Safe Third Country Agreement and
other similar bilateral agreements (such as for instance between US and
Mexico, Guatemala, El Salvador, or Honduras), as being in itself a method for
160 The Local, “Danish prime minister wants country to accept ‘zero’ asylum seekers”,
22 January 2021. Available at: https://www.thelocal.dk/20210122/danish-prime-m
inister-wants-country-to-accept-zero-asylum-seekers/. (accessed 18.12.2022).
161 ‘Denmark Asylum: Law Passed to Allow Offshore Asylum Centres’.
162 ‘Denmark Had a Goal of Zero Asylum Seekers Until Ukraine Was Invaded by
Russia’, Schengen Visa News, 31 March 2022, https://www.schengenvisainfo.com/
news/denmark-had-a-goal-of-zero-asylum-seekers-until-ukraine-was-invaded-by-r
ussia/ (accessed 18.12.2022).
163 ‘Factsheet: Migration and Economic Development Partnership’, Home Office in the
Media, 14 April 2022, https://homeofficemedia.blog.gov.uk/2022/04/14/factsheet-m
igration-and-economic-development-partnership/.
164 Nadeem Badshah, ‘Protesters across UK Decry “Heinous” Rwanda Deportation Plan’,
The Guardian, 16 July 2022, https://www.theguardian.com/politics/2022/jul/16/protes
ters-across-uk-decry-heinous-rwanda-deportation-plan (accessed 29.08.2022).
165 Joseph Lee and Doug Faulkner, ‘Rwanda Asylum Flight Cancelled after Legal
Action’, BBC News, 15 June 2022, https://www.bbc.com/news/uk-61806383 (acces-
sed 29.08.2022).
166 ‘Tesfaye Gives Greece Pat on the Back for Low Asylum Rates’, Nord News,23
August 2021, https://nord.news/2021/09/23/tesfaye-gives-greece-pat-on-the-back-for-
low-asylum-rates/ (accessed 29.08.2022).
167 A move considered xenophobic by the African Union ‘Press Statement On Denmark’s
Alien Act Provision to Externalize Asylum Procedures to Third Countries’ (African
Union, 8 February 2021), https://au.int/en/pressreleases/20210802/press-statement-denma
rks-alien-act-provision-externalize-asylum-procedures (accessed 18.12.2022).

96 Mobility as a violation of law
imperialism in the contemporary era.
168
These measures aim to obstruct, deter,
or avert the arrival of people in refugee situation and those seeking asylum,
169
and for that purpose to extend the border to other countries, beyond the so-called
migrant-receiving nations in the global North,
170
continuously proliferating dis-
tinctions, originating from coloniality, between good and bad, desired and
undesired or orderly and disorderly migration.
Overspill of migration law into other areas of law
Besides the measures aimed directly at controlling and preventing migration,
other legal regulations, and practices that, while not initially aimed at migration
control sensu stricto, also function as border control and mobility prevention. I
call this phenomenon an overspill of migration law and claim that the aim of
such an over-encompassing role of migration law is to strengthen state sover-
eignty in times of globalization.
171
In particular, they reorient the emphasis
back onto migration control, that as I discussed, has been considered as a last
bastion of sovereignty able to stabilize the nation-state as a territorially bound
closed community. One of these measures is already the discussed overspill of
migration law into citizenship law. Another one is an overspill of migration law
into criminal law.
172
Applying the crimmigration lens to these two practices
allows us to see how they serve as a tool for bordering. For instance, as scho-
lars have argued, citizenship serves through deprivation practices as a measure
of terrorist prevention and punishment.
173
As I discussed in Chapter 2, the
undesired persons, usually those that had acquired citizenship through natur-
alization, can be deprived of citizenship if they conduct themselves in manners
seriously prejudicial to the interests of the state or to its security. State membership
is in their case probatory and can be revoked through punishment.
174
As Lucia
Zedner writes in her analysis of the practices of citizenship deprivation in the UK,
168 Walia, Kelley, and Estes, Border and Rule, 89.
169 Jeff Crisp, ‘Externalization and the Erosion of Refugee Protection’, University of
Melbourne, 25 November 2019, https://arts.unimelb.edu.au/school-of-social-and-p
olitical-sciences/our-research/comparative-network-on-refugee-externalization-poli
cies/blog/externalization-and-the-erosion-of-refugee-protection (19.09.2022).
170 Inka Stock, Ays¸en Üstübici, and Susanne U. Schultz, ‘Externalization at Work:
Responses to Migration Policies from the Global South’, Comparative Migration
Studies 7, no. 1 (December 2019): 48; Phillips, ‘An examination of deterrence and
access to asylum through law, rhetoric and experience’.
171 Kmak, ‘Migration Law as a State (Re)Producing Mechanism’.
172 Stumpf, ‘The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power’;
Katja Franko Aas and Mary Bosworth, The Borders of Punishment: Migration,
Citizenship, and Social Exclusion, 1 edition (Oxford, UK: Oxford University Press,
2013); van der Woude, Barker, and van der Leun, ‘Crimmigration in Europe’.
173 Lucia Zedner, ‘Citizenship Deprivation, Security and Human Rights’, European
Journal of Migration and Law 18, no. 2 (17 June 2016): 222–242.
174 Franko, 78.

Mobility as a violation of law 97
a resort to immigration law in the case of terrorist threats derives in part from the
impulse to combat terrorism by any available legal means but also from a tendency
to cast foreigners as a threat, even though there is no empirical evidence that nat-
uralized citizens pose a greater threat to security than citizens by birth.
175
The second is migrantization of criminal law as an element of crimmigration
practices. Through this process migration law overspills into criminal law in
which criminal law acquires a role of border control. This concerns, for
instance, cases when a common crime is a basis for immigration detention
176
or
more broadly when criminal law is used in order to facilitate the deportation of
a foreigner.
177
Importantly, such practices often reveal differing state responses
to crime and crime prevention depending on a person’s immigration status
178
ranging from reintegration into society for those with formal status to terri-
torial exclusion of those without status. Researchers have shown how similar
and relatively minor offences (such as possession of a small dose of marijuana
or begging
179
)resultina fine in the case of citizens and expulsion in the case
of a foreigner.
180
Such practices contribute to the overspill of migration law
into criminal and citizenship laws, and the development of what Franko calls
bordered penality where the penal system functions as a border control mea-
sure.
181
For Franko, bordered penality serve on the one hand as an expression
of sovereignty and on the other as an element of the global mobility regime
where people are being dispatched to their countries of origin and immobi-
lized there.
182
These measures, together with pushbacks, externalizations, and offshore
processing show how the nation-states, remaining constantly in flux need to be
supported by the regulation of belonging through differential mobility. Thanks
175 Zedner, ‘Citizenship Deprivation, Security and Human Rights’, 236.
176 Juliet P. Stumpf, ‘The Process Is the Punishment in Crimmigation Law’,in The
Borders of Punishment: Migration, Citizenship and Social Exclusion (Oxford,
United Kingdom: Oxford University Press, 2013): 367–419, 66–68.
177 Aliverti, ‘Making People Criminal: The Role of the Criminal Law in Immigration
Enforcement’.
178 Magdalena Kmak, ‘Crimmigration and Othering in the Finnish Law and Practice of
Immigration Detention’, No Foundations Journal, no. 15 (2018).
179 ‘Denmark: National Court Rules against Human Rights Judgement in Migrant
Begging Case’, 31 August 2022, https://ec.europa.eu/migrant-integration/news/denma
rk-national-court-rules-against-human-rights-judgement-migrant-begging-case_en
(accessed 18.12.2022).
180 Aleksi Seilonen and Magdalena Kmak, ‘Administrative Detention of Migrants in the
District Court of Helsinki’ (Helsinki: University of Helsinki, 2015), http://www.hel
sinki.fi/law-and-other/publications/detention-monitoring-report.pdf (accessed
15.06.2017); Jukka Könönen, ‘Borders in the Future: Policing Unwanted Mobility
through Entry Bans in the Schengen Area’, Journal of Ethnic and Migration Studies,
31 January 2022, 1–18.
181 Katja Franko Aas, ‘Bordered Penality: Precarious Membership and Abnormal Jus-
tice’, Punishment & Society 16, no. 5 (December 2014): 520–541, 521.
182 Aas, 531–532.

98 Mobility as a violation of law
to these processes the state, even though it has undergone a foundational
change as an entity, continues to constitute the main form of the societal orga-
nization critical for the globalization processes.
183
Nevertheless, despite these
restrictive measures, mobility cannot be fully ordered and regulated. Persons on
the move also navigate around different legal categories, challenge and resist
them but also use them for their own purposes. In the next two chapters, this
book indeed shifts from conceptualizing mobility in a form of a right or a vio-
lation of law and focuses, instead, on ways to challenge the productive function
of global mobility infrastructure.
Conclusions
In this chapter I focused on state sovereignty, borders, and the processes of
bordering operating as an engine of the nation-state machine. I traced the
operation of contemporary form of the machinic statehood in a globalized
world that is based on the multiplication of borders and the processes of bor-
dering, that enable the state to both reproduce and reinvent itself through
positing migration at its centre. In this chapter, mobility of some groups of
people is conceptualized as a violation of law, based on the distinction between
the proper or improper reasons to migrate, that are related to citizenship, race,
gender, or wealth. I argue that the migration law of the global North has been
complicit in proliferating these distinctions through numerous discriminatory
and exclusionary measures and practices that prevent or limit the mobility of
certain categories of people or exclude them from protection. In addition,
through legal, political, or discursive measures of securitization and crim-
inalization, already certain groups always represent undesired mobility, and
their movement needs to be stopped even before they are able to arrive within
the jurisdiction of the state. Together with Chapter 2, this chapter shows how
liberal subjectivity is enshrined in orderly movement and the illegal subjectivity
in disorderly movement. To be sure, any such portrayal of subjectivity obscures
the productive role of law in the construction of this freedom/illegality distinc-
tion. Law, through securitization and criminalization of certain forms of
movement and certain groups of racialized, gendered, and classed persons
maintain the sovereignty of the state.
In the first part of this chapter, I focused on the meaning and function of
borders for the nation-states and law. I then focused on the origins and impli-
cations of the international legal doctrine of sovereign control of migration
arguing that this doctrine does not only enforce the right to control mobility
but turns certain mobilities into a violation of law. In particular, this doctrine
contributes to differential exclusions of various groups of mobile persons and
together with mobility as a right perpetuates the distinction of mobility into
orderly and disorderly.
183 Sassen, Territory, Authority, Rights.

Mobility as a violation of law 99
In the second part of the chapter, I showed how mobility as a violation of
law is being maintained in international and national law of the global North
through the different forms of bordering – or distinction-making – as coded in
migration law. The over-encompassing role of migration law is to strengthen state
legitimacy and sovereignty exposed as unstable by the processes of globalization.
That happens through the multifaceted processes of bordering, securitization, or
criminalization, that take place within and outside the territory of the state and
affect not only their legal status but also all aspects of migrant lives. Some of these
processes can be described as overspill of migration law into other areas of law –
into citizenship law (already discussed in Chapter 2) and into criminal law – turning
these laws into migration control measures. The state is, therefore, not a reason for,
but rather a result of, the processes of bordering and controlling mobility. State
identity and sovereignty then are created and maintained through the perpetuation
of the machinic processes of production, dissolution, and (re)production of different
types of borders that themselves can be thought about with relation to mobility and
movement.
Through these analyses the chapter builds a basis for further discussion in
the book on the possibility of resistance to the nation-state as constructed
through modernity/coloniality. We cannot escape the paradox of continuous
processes of inclusion and exclusion as necessary for the nation-state, which
through these processes fakes its stability and adjusts itself to contemporary
times. As I will discuss in the next chapter, however, the ways that processes of
inclusion and exclusion function and the type of nation-states that are con-
structed through them can sometimes be derailed and changed. To be sure, the
contemporary nation-state is only one form of many that are possible. The type
of relationship between law and mobility is therefore crucial for the formation
of the future state. The meeting of laws and what happens at the (broadly)
understood border is where the battle takes place.

Chapter 4
Mobility as a resistance to law
Introduction
Thedivisionofthe worldintosovereign states as rooted in modernity/colo-
niality only allows for a certain type of mobility, that is intimately linked to
the container-like concept of a nation-state with citizenship as a basis for
membership. The substantive law of the global North is construed in such a
manner that not only embodies, but also produces the distinction between
people served by the global mobility infrastructure on the one hand, and the
people who are denied access to this infrastructure for the reason of their
citizenship, wealth, race, or gender on the other. Mobility of those considered
global liberal subjects is streamlined with the aid of the mobility infra-
structure. Others are essentialized as not modern, illiberal, and disorderly –
the Irredeemable Other, the mobility of whom needs to be stopped or chan-
nelled towards specific ends such as cheap labour. The law of the global
North regulating mobility is substantively exclusionary. There is law for those
who enjoy access to the global mobility infrastructure and there is a different
kind of law for those who are denied such access.
1
I argue that the access to
the global mobility infrastructure comes, therefore, with a full-fledged pro-
tection of international law, in the form of a right to life, right to liberty and
security, right to private and family life, health and other rights. Shadow mobility
infrastructure comes with arbitrariness, denial of justice, instrumentalization, or
death.
In the previous chapters, I analysed the unequal capacity for movement as
characteristic of different mobile subjects of law. I showed how the forms of
mobility that are not streamlined and orderly are not only considered a viola-
tion of state sovereignty and law, that implements it, but also how they are
Thomas Spijkerboer, ‘Marathon Man and “Our European Way of Life”’, Open-
Democracy (blog), 27 October 2020, 466, https://www.opendemocracy.net/en/ca
n-europe-make-it/marathon-man-and-our-european-way-life/ (accessed 18.12.2022);
Thomas Spijkerboer, ‘The Global Mobility Infrastructure: Reconceptualising the
Externalisation of Migration Control’, European Journal of Migration and Law 20,
no. 4 (29 November 2018): 452–69, 466–467.
DOI: 10.4324/9781003254966-5
This Chapter has been made available under a CC-BY-NC-ND 4.0 license.
1

Mobility as a resistance to law 101
produced by this law in order to support and stabilize the nation-state. In the
remaining part of the book, I shift focus from the static state and law that
needs to be continuously reinforced to mobile subjects and approach mobility
as resistance. Chapter four, building on the findings of chapters two and three,
poses a question on the possibility of resistance to the institutions of citizen-
ship, state, and borders, both from within and from outside law. It is followed
by chapter five which takes a closer look at one of the inherent elements of
power-resistance relation – mobile knowledges and experiences as a way for-
ward towards mobility justice. The questions I ask in this chapter concern the
conceptualization of the gap between the legal measures as codified in law and
their implementation in concrete cases that has been a subject of numerous
scholarly publications, in particular within the fields of critical legal studies and
the field of law and society.
2
In this chapter, I conceptualize this gap as a space
where speaking colloquially, things can happen. Gap, in other words, is a space
where law itself also moves and its emancipatory or limiting potential can
materialize. I have so far, in this book, been analysing this gap as seen from the
perspective of orderly and disorderly movement, where the gap is much nar-
rower in cases of orderly movement and much wider in cases of disorderly
movement. The latter becomes so wide at times that it turns into pure violence
where law ceases to exist.
3
This chapter follows the substantive and structural division introduced by
this book where the dominant thoughts, practices, and the forms of ordering
of human mobility as orderly and disorderly are introduced first, and the
alternative ideas and measures are introduced later. The chapter con-
ceptualizes two levels of resistance: (1) resistance against law as part of the
national order of things and the global mobility infrastructure and (2)
resistance against the national order of things in itself. By resistance against
law, I understand both legal challenges in forms of complaints and appeals,
strategic litigation, changes in legislation in result of jurisdiction or lobby-
ing. By resistance against the national order of things, I understand on the
one hand international mobility despite and against the exclusionary law of
the global North. On the other hand, I explore the possibility of challenging
the national order of things through legislative changes and the legal prac-
tice itself, particularly through redefinition of legal rules and regulation
affecting identities and subjectivities of mobile persons that have an impact
on normative standards of mobility.
The order of chapters in this book does not mean, however, that I consider
resistance as secondary and reactionary to the bordering and othering measures.
In the first part of the chapter, I define resistance as an inherent and necessary
2 Reza Banakar, Normativity in Legal Sociology: Methodological Reflections on Law
and Regulation in Late Modernity (New York, Dordrecht, London: Springer, 2015).
3 Nanda Oudejans, ‘The Right Not to Have Rights: A New Perspective on Irregular
Immigration’, Political Theory 47, no. 4 (August 2019): 447–474, 456–457.

102 Mobility as a resistance to law
element of every power relation
4
and resistive tension as constitutive for power
relations embedded in the differential international mobility.
5
I argue that in
order to understand the potential of mobility as resistance, mobility needs to
become a central focus of the power relation between law and the people on the
6
move.
In the second part of the chapter, I discuss the relationship between law and
resistance in the context of orderly mobility, focusing on traditional ways of
mobilizing law within the limits of the nation-state and its borders. Here I dis-
cuss the role of human rights instruments in challenging the national order of
things. In particular, I analyse access to human rights protection by Irredeem-
able Others through the prism of the right to have rights and the initiatives
aiming at humanising the law. I argue that protection in a form of human rights
can be effectively claimed primarily by those who move in an orderly fashion
and are, therefore, already included into the global mobility infrastructure
where refusal of entry or expulsion is an exception. In such cases, migrants can
call on human rights for their defence. In the context of the disorderly move-
ment, rights are often linked with migrants’ own conduct and are only available
on a minimal level often in a form of humanitarian protection,
7
and mostly to
those particularly vulnerable.
8
In the third part of the chapter, I move, therefore, to discuss law and
resistance in the context of disorderly mobility, where mobility resists law
from the outside. In other words, I focus on mobility as a material act of
resistance against law, rooted in the act of movement itself. I analyse the
implications of the acts of resistance for law itself. In this context I analyse
theroleofthe Sans-Papiers movements and discuss the role of performative
acts of belonging for legal categories such as citizenship.In particular, I
focus on the autonomy of migration,
9
the acts of everyday citizenship
10
creating, in the words of Jacques Rancière, dissensus through politicising the
4 Michel Foucault, The History of Sexuality: The Will to Knowledge: The Will to
Knowledge v. 1, trans. Robert Hurley, New Ed edition (Harmondsworth: Penguin,
1998), 95.
5 Simon Thorpe, ‘In Defence of Foucault: The Incessancy of Resistance’, Critical
Legal Thinking, 2 July 2012, https://criticallegalthinking.com/2012/02/07/in-de
fence-of-foucault-the-incessancy-of-resistance/ (accessed 18.12.2022).
6 Samaddar, The Postcolonial Age of Migration, 233.
7 Deanna Dadusc and Pierpaolo Mudu, ‘Care without Control: The Humanitarian
Industrial Complex and the Criminalization of Solidarity’, Geopolitics, 17 April
2020, 1–26.
8 For discussion on particular vulnerability in the jurisdiction of ECHR see Fabio
Macioce, ‘Undocumented Migrants, Vulnerability and Strategies of Inclusion. A
Philosophical Perspective’, Constellations 25 (2018).
9 De Genova, The Borders of ‘Europe’.
10 Nyers and Rygiel, Citizenship, Migrant Activism and the Politics of Movement;
Rigo, ‘Citizens despite Borders: Challenges to the Territorial Order of Europe’.

Mobility as a resistance to law 103
gap between the human and the citizen and constructing the object of rights
in the in-between position.
11
Finally, in the fourth part of this chapter, I deconstruct the distinction
between resistance from within and outside law by reference to the mobility of
law and its potential for emancipatory change. I tap into new ways of thinking
about law and mobility, and I discuss projects aiming on the one hand to make
human rights law more inclusive and on the other referring to performative
behaviours and rethinking existing concepts that regulate human mobility in a
new emancipatory light. Even though some of the existing proposals primarily
focus on rethinking the role of sovereignty and strengthening law’s universality
within the contemporary system of nation-states, others do recognize and
respond to the mobility paradigm building on mobility as an emancipatory
force in itself. In this section I focus on the right to have rights
12
and the right
not to have rights,
13
concepts such as illegal
14
or transgressive citizenship,
15
as
well as, the right to social membership,
16
andbelonging basedondistributive
justice.
17
This chapterlooksparticularlyatthe scholarship scrutinizing chan-
ges and redefinitions of legal rules and regulations affecting normative stan-
dards in general,
18
as well as at identities and subjectivities, as they are
moving together with mobile persons.
19
In chapter five I then focus on one
such perspective – emancipatory change that can be enhanced through
advancing mobile knowledges.
Mobility as resistance
Following Michel Foucault, I understand resistance as an inherent and neces-
sary element of every power relation including the relations that involve or are
based on law. As Foucault writes in the History of Sexuality, “[w]here there is
power, there is resistance, and yet, or rather consequently, this resistance is
11 Rancière, Dissensus.
12 Kesby, The Right to Have Rights: Citizenship, Humanity, and International Law;
Gündog
˘du, Rightlessness in an Age of Rights; Dana Schmalz, Refugees, Democracy
and the Law: A Deficit of Rights, Law and Migration (Abingdon, Oxon; New York,
NY: Routledge, 2020).
13 Oudejans, ‘The Right Not to Have Rights’.
14 Rigo, ‘Citizens despite Borders: Challenges to the Territorial Order of Europe’.
15 Rygiel, ‘Dying to Live: Migrant Deaths and Citizenship Politics along European
Borders: Transgressions, Disruptions, and Mobilizations’.
16 Carens, The Ethics of Immigration.
17 E. Tendayi Achiume, ‘Migration as Decolonization’, Stanford Law Review 71
(2019): 1509–1574.
18 Toivanen, ‘Beyond Legal Categories of Indigeneity and Minority-Ness: The Case of
Roma and Falling in-Between’; Kmak, ‘The Right to Have Rights of Undocumented
Migrants: Inadequacy and Rigidity of Legal Categories of Migrants and Minorities
in International Law of Human Rights’.
19 Franz von Benda-Beckmann, Keebet von Benda-Beckmann, and Anne Griffiths,
Mobile People, Mobile Law: Expanding Legal Relations in a Contracting World.

104 Mobility as a resistance to law
never in a position of exteriority in relation to power.”
20
In other words, power
functions in a relational manner, with the points of resistance as an inherent
element of these relations present everywhere and traversing both social divi-
sions and unities.
21
Importantly, resistance is never external to power. As Fou-
cault writes,
(…) there is no single locus of great Refusal, no soul of revolt, source of all
rebellions, or pure law of the revolutionary. Instead there is a plurality of
resistances, each of them a special case: resistances that are possible,
necessary, improbable; others that are spontaneous, savage, solitary, con-
certed, rampant, or violent; still others that are quick to compromise,
interested, or sacrificial; by definition, they can only exist in the strategic
field of power relations.
22
Mobility as resistance consists therefore of plurality of macro and micro prac-
tices against the immobilized law and immobilizing national order of things. It
is a refusal to support the division of the world into nation-states that through
differential borders and boundaries prevent people from moving and through
their legislation and practices force the people on the move to use the insecure
means of movement. On a microlevel this may mean a legal action, a protest,
re-application for refugee status, different forms of solidarities with irregular-
ized migrants, or simply a refusal to leave.
Understanding mobility as a form of resistance also presumes that mobility
and the figure of the migrant can replace stasis of citizenship and the category
of a Citizen as a starting point for critical analysis.
23
In his essay The Subject
and Power, Foucault writes,
I would like to suggest another way to go further toward a new economy
of power relations, a way which is more empirical, more directly related to
our present situation, and which implies more relations between theory and
practice. It consists of taking the forms of resistance against different forms
of power as a starting point.
24
This does not simply mean that resistance comes first in a power-resistance
relationship, but that such resistive tension is constitutive and lies at the very
centre of power relations themselves.
25
Therefore, in conceptualizing mobility
as a form of resistance, mobility needs to become a central focus of the power
20 Foucault, The History of Sexuality, 95.
21 Foucault, 96.
22 Foucault, 95–96.
23 Thomas Nail, The Figure of the Migrant, 1 edition (Stanford, California: Stanford
University Press, 2015), 233.
24 Michel Foucault, ‘The Subject and Power’, Critical Inquiry 8, no. 4 (1982): 780.
25 Thorpe, ‘In Defence of Foucault: The Incessancy of Resistance’.

Mobility as a resistance to law 105
relation between law and the people on the move. This concerns both shifting
focus to mobility of people and mobility of law.
The primacy of human mobility over state law and borders has been
conceptualized by scholars and activists that promote the concept of auton-
omy of migration. In such understanding, mobility is a primary form of
movement that is later turned into migration through the processes of bor-
dering.
26
The legal and other measures of migration governance ignore,
however, the autonomous characteristic of migration and its inherently
subversive nature that continuously resists control practices.
27
Therefore,
migrants’ resistance cannot be conceptualized as being solely reactionary to
the practices of bordering as it also anticipates many of the control mea-
sures. Samaddar, paraphrasing Foucault, claims in this context that “the
relation between control and escape is one of temporal difference: escape
28
comes first.”
In turn, focus on the mobility of law opens up possibilities to challenge per-
ceived stability of law as related to law’s territoriality as well as stability of
legal concepts and emphasizes law’s relationality. For instance, non-orderly
mobility is not only a product, but also in itself a resistance to the national
order of things having its origins in modernity/coloniality milieu.
29
At the same
time, law, carried by people, moves across the globe and this can affect law in
the place of arrival but also in the place of departure. In addition, mobile sub-
jects bring with them the knowledges gained through mobility that not only can
be included in the process of law-making but also contribute to the construction
of new forms of belonging. Increased attention to knowledges and epistemolo-
gies from the global South can problematize the one-sided understanding of law
as supporting the interests of the global North. Borders as perceived from the
mobility perspective stop being only spaces and processes of distinction-making
but meeting places where relationality can be inscribed into law, bridging the
gap between different laws, different legal categories, and legal positionalities.
This may happen for instance, through emphasising shared rather than differing
features of various subjects. In turn, movement as a quality of law implies
constant negotiation between openness and closeness that can expand our
understanding of social reality and provide us with emancipatory possibilities
but can sometimes narrow down our worlds and limit our rights. Differential
repetition of law can create a space in between the openness and closeness of
26 See for instance Nicholas De Genova, ed., The Borders of ‘Europe’: Autonomy of
Migration, Tactics of Bordering (Durham, NC: Duke University Press, 2017).
27 Didier Bigo and Elspeth Guild, ‘Policing in the Name of Freedom’ in Controlling
Frontiers: Free Movement into and within Europe (Abingdon, Oxon: Routledge,
2016), 1–13, 3–4
28 Samaddar, The Postcolonial Age of Migration, 233.
29 Lucy Mayblin, Asylum after Empire: Colonial Legacies in the Politics of Asylum
Seeking, Kilombo: International Relations and Colonial Questions (London; New
York: Rowman & Littlefield International, 2017), 26–27.

106 Mobility as a resistance to law
law shifting attention to the potentiality of the tension between the actual and
the possible.
30
Centring mobility as primary in human mobility – law relationship opens up
possibilities for reinterpretation of this relationship. In the context of tradi-
tional legal remedies, this may mean asking questions on types of legal actions
that are possible if we chose to stay within the system of the nation-states.
What kind of protection is available both nationally and through the system of
international human rights law? To what extent remedies such as legal chal-
lenges, complaints and appeals, strategic litigation, changes in legislation in
result of jurisdiction or lobbying, can improve the position of mobile subjects
and enhance mobility justice? What kind of tools are needed in order to uncover
and challenge the deep colonial structure orienting European human rights and
migration law that could affect future jurisprudence?
31
But focus on human
mobility as primary subjectivity poses another set of questions for law. In par-
ticular, it opens up a discussion about a possibility of a different system of
global ordering built around mobility. For law, this means asking first of all, if
law carries an emancipatory potential that could overcome the national order of
things as we know it? In other words, can law itself be used as resistance by
destabilising its own premises and principles such as citizenship and statehood?
In what follows I discuss mobility’s potential for multiple forms of resistance
(from within and outside law) that can form and re-form mobility – law
relationship.
Mobility as resistance from within law
The most conventional approach to resist against legal measures ordering
mobility as welcomed or prohibited is that of using available domestic and
international legal remedies for challenging the broadly understood policies of
non-entrée. In instances of international mobility, a special role is played by the
international human rights instruments as they are traditionally positioned as
challenging the national order of things. In conventional understanding, by
acceding to the human rights instruments, states voluntarily limit their sover-
eignty over their territory and take upon themselves to follow their human
rights obligations towards those within their jurisdiction. At the same time, in
the context of human mobility, states retain their power to decide who can
enter and remain on their territory with certain specified exceptions according
to the doctrine of sovereign control of migration.
32
As I discussed earlier,
30 Oudejans, ‘The Right Not to Have Rights’, 459.
31 See for instance Thomas Spijkerboer, ‘Coloniality and Recent European Migration
Case Law’,in Migrants’ Rights, Populism and Legal Resilience in Europe, ed. Vla-
dislava Stoyanova and Stijn Smet, 1st ed. (Cambridge: Cambridge University Press,
2022), 117–138, 137.
32 Abdulaziz, Cabales, and Balkandali v UK, No. 9214/80; 9473/81; 9474/81 (European
Court of Human Rights 28 May 1985), para. 67

Mobility as a resistance to law 107
however, due to this systems’ roots in modernity/coloniality, the rights that are
linked with international mobility, despite being universal in principle, are in
practice the rights attached to orderly mobility. Even though human rights
belong in principle to all within a territory and/or jurisdiction of the state-par-
ties to international legal instruments, encompassing also those moving dis-
orderly and not following the rules of the states, the protection offered by these
instruments in practice is often not as effective. In many cases, the access to
rights depends on the persons’ nationality, race, their legal status, or the activity
they are engaged in. One can argue that the system of human rights protection
consists, therefore, of two parallel legal systems that operate alongside each
other but are separated from one another and apply to people depending on
whether their mobility is considered as orderly or disorderly.
33
Whereas one
group has their mobility enhanced, access to protection, family rights and
health provided, the others are excluded and must use alternative channels and
ways to move around. In particular, as cases such as M.K. v. Poland
34
and N.
D. & N. T. v Spain
35
show, only orderly applications for refugee status are
encompassed by the human rights instruments, and with the concept of the
culpable conducts asylum seekers who apply for the protection en masse,ina
disorderly fashion and not at the designed border crossing point have been
excluded from that protection. From this perspective, only orderly mobility can
be effectively controlled by the state and only transgressions of sovereignty on
the terms of the state are tolerated. Gregor Noll illustrates the precarious
position in access to rights of those with undocumented or semi-undocumented
status – therefore those that I in this book describe as moving in disorderly
fashion. In the article Why Human Rights Fail to Protect Undocumented
Migrants Noll argues that undocumented migrants’ capacity to appear as ben-
eficiaries of their human rights obligations is strictly limited to their being
detainable and ultimately removable.
36
What Noll means is that a distinction
between physical and jurisdictional presence is crucial for access to rights. For
instance, in situations such as health emergency, the hospital might notify the
immigration authorities about a patient without the right to reside. This hap-
pens because being present on the territory of a country without a right to be
there and claiming human rights cannot happen without acknowledging that
one is within the boundaries of that country that one had crossed or where one
33 See for instance the discussion of this distinction by Spijkerboer, ‘Marathon Man
and “Our European Way of Life”’; Thomas Spijkerboer, ‘The Global Mobility
Infrastructure’; Spijkerboer, ‘Coloniality and Recent European Migration Case
Law’.
34 M.K. and Others v. Poland, No. 40503/17, 42902/17 and 43643/17 (European Court
of Human Rights 23 July 2020).
35 N.D. and N.T. v. Spain, No. 8675/15; 8697/15 (European Court of Human Rights 13
February 2020).
36 Gregor Noll, ‘Why Human Rights Fail to Protect Undocumented Migrants’, Eur-
opean Journal of Migration and Law 12 (2010): 241–272, 250.

108 Mobility as a resistance to law
remained without a legal basis. This behaviour in consequence challenges the
national order of things, reveals the instability of the state and borders, and
triggers a corrective reaction stabilising the state.
This is, of course, not to say that all migrants are always excluded from legal
remedies and also, conversely, that migrants can never be treated differently
from citizens.
37
To be sure, there are also examples where the national or
international courts introduced measures that effectively protect rights of irre-
gularized migrants. In the context of the jurisdiction of ECtHR this encom-
passes for instance cases of expulsions or so called “Dublin” cases (T.I. v. the
United Kingdom
38
or M.S.S v. Belgium and Greece
39
) pushbacks (Hirsi Jamaa
v. Italy, M.K. v. Poland
40
) or externalization of refugee protection as in the
recent interim measures decision in N.S.K v. The UK.
41
Protective measures
are also being adopted in countries, regions, or cities in a form of so called
“firewalls,” that aim to safeguard undocumented migrants from being imme-
diately referred to the police or immigration officer while in hospital, school
or at a workplace.
42
Some undocumented migrants live relatively well and safe
without a residence or work permit, and do not even intend to legalize their
stay.
43
At the same time legal remedies available are not sufficient to challenge dif-
ferential treatment in law, either because states can mobilize more resources to
argue their claims than those available to migrants, or they limit access to legal
protection; because the judgments are not implemented,
44
or implemented so
that measures pronounced as violating existing laws are legalized in national
legislation;
45
or because the litigation is limited to procedural or technical
37 For the discussion on human rights of migrants see for instance Cathryn Costello,
The Human Rights of Migrants and Refugees in European Law, Oxford Studies in
European Law (Oxford, UK: Oxford University Press, 2016).
38 T.I. v the United Kingdom, No. 43844/98 (European Court of Human Rights 3 July
2000).
39 M.S.S. v. Belgium and Greece, No. 30696/09 (European Court of Human Rights 21
January 2011).
40 M.K. and Others v. Poland.
41 N.S.K v. the United Kingdom, No. 28774/22 (European Court of Human Rights 14
June 2022).
42 François Crépeau and Bethany Hastie, ‘The Case for “Firewall” Protections for
Irregular Migrants: Safeguarding Fundamental Rights’, European Journal of Migra-
tion and Law 17, no. 2–3 (24 June 2015): 157–183.
43 Nanda Oudejans, ‘The Right Not to Have Rights’, 454
44 Monika Szulecka, ‘The Undermined Role of (Domestic) Case Law in Shaping the
Practice of Admitting Asylum Seekers in Poland’, European Journal of Legal Studies,
no. Special Issue-Adjudicating Migrants’ Rights: What Are European Courts Saying?
(11 May 2022): 171–209.
45 Alice Edwards, ‘Tampering with Refugee Protection: The Case of Australia’, Inter-
national Journal of Refugee Law 15, no. 2 (1 April 2003): 192–211; See also Daniel
Ghezelbash, Refuge Lost: Asylum Law in an Interdependent World, 1st ed. (Cam-
bridge: Cambridge University Press, 2018), 86–99.

Mobility as a resistance to law 109
grounds.
46
States are also engaged in what Gammeltoft-Hansen and Vedsted-
Hansen call “creative legal thinking” working “in between the normative
structures established by international human rights treaties, exploiting inter-
pretative uncertainties, overlapping legal regimes, reverting on soft law stan-
dards or establishing novel categories and concepts on the basis of domestic or
other parts of international law.”
47
Limitations of the rights of migrants in the EU law, even though structural, have
been visible in particular after 2015 and the so-called refugee and migration crisis.
48
Such cases as already discussed N.D. & N.T. v. Spain
49
and A.A and Others v.
North Macedonia
50
are telling examples of lack of access to protection by mobile
persons characterized as moving disorderly. These cases, by making human rights
protection dependant on the proper behaviour, put to question the role of the
ECtHR as protector of human rights of all as located in their dignity. Paraphrasing
Noll, the presence on the territory of a person who moved there in a disorderly
fashion only points towards this disorderly movement that is against the national
order of things. Critical migration scholars argue that in such cases, the human
rights framework functions only as a minimum protection from the worst excesses
of dehumanization without guaranteeing substantive equality.
51
For them, the
human rights or humanitarian protection measures do not resist law but, rather, are
inherently linked with securitization and criminalization of migration, as well as
externalization of protection. In other words, these laws and protection measures
are not remedies but, rather, parts of the broader system of deterrence. Oftentimes,
they shift responsibility for protection from all to only some, considered the most
vulnerable.
52
As Polly Pallister-Wilkins shows, the humanitarian infrastructure (both
material, such as the externalized refugee camps or immaterial, such as increased use
of vulnerability screening – for instance the IOM vulnerability model or UNHCR
Vulnerability Screening Tool) is not a response to but part and parcel of the secur-
itization of migration and externalization of protection. She argues that humanitar-
ian responses mask, rather than remedy underlying injustices
53
introducing measures
46 Lucy Mayblin, Asylum after Empire, 173.
47 Thomas Gammeltoft-Hansen and Jens Vedsted-Hansen, eds., Human Rights and the
Dark Side of Globalization: Transnational Law Enforcement and Migration Con-
trol, Routledge Studies in Human Rights (Abingdon, Oxon; New York, NY: Rou-
tledge, 2017), 6.
48 Spijkerboer, ‘Coloniality and Recent European Migration Case Law’, 117
49 N.D. and N.T. v. Spain.
50 A.A. and Others v. North Macedonia, No. 55798/16 (European Court of Human
Rights 7 May 2022).
51 Mayblin, Asylum after Empire, 172; Nadine El-Enany, (B)Ordering Britain: Law,
Race and Empire, 2020.
52 See the discussion on the role of particular vulnerability in Macioce, ‘Undocumented
Migrants, Vulnerability and Strategies of Inclusion. A Philosophical Perspective’.
53 Polly Pallister-Wilkins, Humanitarian Borders: Unequal Mobility and Saving Lives
(London: Verso Books, 2022).

110 Mobility as a resistance to law
developed to secure “imminently mobile populations (…) for the maintenance of
liberal order alongside and through the securing of life.”
54
The access or lack of access to rights by persons in a refugee situation,
undocumented migrants, and others whose movement is considered disorderly,
has been discussed widely in a body of scholarship on the right to have rights
inspired by the work of Hannah Arendt and building upon her analysis of the
relationship between statelessness and access to rights in the context of World
War II and the Holocaust.
55
This body of scholarship scrutinizes access to
rights as a right in itself being granted to all irrespective of their citizenship and
residence – a moral right to membership that must be enshrined in positive
rights.
56
It also engages among others with the position and ability of human
rights instruments to provide protection to migrants in an undocumented
situation or those without state protection. For some, law is not able to provide
protection and there is a need to use non-legal ways or remedies to emphasize
one’s own existence here and now.
57
Others embark on a search of the law and
legal theoretical angle that would show that such protection is still available
and can be implemented.
58
How to, then, discuss resistance in the context of the right to have rights?In
the thought of Arendt, the concept of the right to have rights is a response to
the failure of protection of refugees outside their own states.
59
As Arendt writes
in The Origins of Totalitarianism the Rights of Men
54 Polly Pallister-Wilkins, ‘Hotspots and the Geographies of Humanitarianism’, Envir-
onment and Planning D: Society and Space 38, no. 6 (December 2020): 991–1008,
993; On political voice within humanitarian government of refugees see also
Schmalz, Refugees, Democracy and the Law.
55 Ayten Gundogdu, Rightlessness in an Age of Rights (Oxford University Press, 2015);
Nanda Oudejans, ‘The Right to Have Rights as the Right to Asylum’, Netherlands
Journal of Legal Philosophy 43, no. 1 (March 2014): 7–26; Nanda Oudejans, ‘The
Right Not to Have Rights: A New Perspective on Irregular Immigration’, Political
Theory 47, no. 4 (August 2019): 447–474; Seyla Benhabib, ‘From the “Right to Have
Rights” to the “Critique of Humanitarian Reason”’,in Exile, Statelessness, and
Migration, Playing Chess with History from Hannah Arendt to Izaiah Berlin (Prin-
ceton University Press, 2018), 101–124; Melissa Stewart, ‘“A New Law on Earth”
Hannah Arendt and the Vision for a Positive Legal Framework to Guarantee the
Right to Have Rights’, SSRN Scholarly Paper (Rochester, NY: Social Science
Research Network, 1 February 2021); Alison Kesby, The Right to Have Rights:
Citizenship, Humanity, and International Law (Oxford: Oxford University Press,
2012).
56 Schmalz, Refugees, Democracy and the Law, 53.
57 Jacques Rancière, ‘Who Is the Subject of the Rights of Man?’, The South Atlantic
Quarterly 203, no. 2/3 (2004): 297–310.
58 Kesby, The Right to Have Rights: Citizenship, Humanity, and International Law;
Stewart, ‘“A New Law on Earth” Hannah Arendt and the Vision for a Positive
Legal Framework to Guarantee the Right to Have Rights’.
59 Oudejans, ‘The Right to Have Rights as the Right to Asylum’, 10.

Mobility as a resistance to law 111
[…] had been defined as ‘inalienable’, because they were supposed to be
independent of all governments; but it turned out that the moment human
beings lacked their own government and had to fall back upon their mini-
mum rights, no authority was left to protect them and no institution was
willing to guarantee them.
60
Therefore, according to Arendt, refugees’ enjoyment of rights and freedoms
is limited spatially, and through displacement from their countries of origin,
refugees lose this protection. By being excluded from the protection of their
own government, refugees are considered “legal freaks”
61
who are out of
place and who without inclusion into their own community don’t have a
right to enjoy human rights as such. This right is dependent on the polity’s
decision to include them, in particular, to grant them asylum or refugee
status. As Arendt writes, the refugee “breaks into the political scene as the
alien which (…) reminds us of the limitations of human activity – which are
identical with the limitations of human equality.
”62
The limitation of equal-
ity has its roots in the need to negotiate belonging to the community which
is particularly problematic in the case of persons seeking asylum. As Nanda
Oudejans explains, for Arendt, refugees bring disorder to the national order
and an orderly freedom of movement is only thinkable in a world divided by
borders where the primary responsibility for rights protection is based on
the countries of origin.
63
Demanding rights protection within or against the
host countries goes, therefore, against the national order of things and
challenges the conceptualization of mobility into orderly and disorderly. The
remedy, in conventional understanding, has been usually thought as being
dependent on the inclusion into the polity, that should encompass all with
the claim to social membership.
64
This is very much linked with develop-
ment of human rights within the framework of what Ukri Soirila calls “the
law of humanity project.”
65
The law of humanity is a radically altered,
“humanized” version of international law that has developed during the first
two decades after the end of the Cold War. It was then when international
law posited humans and their dignity as the primary subject of the legal
order which turned the role of the state into the trustee, fiduciary, or official
60 Hannah Arendt, The Origins of Totalitarianism (New York: A Harvest Book,
Harcourt Inc., 1985), 291.
61 Arendt, 278.
62 Arendt, 301.
63 Nanda Oudejans, ‘What Is Asylum? More than Protection, Less than Citizenship’,
Constellations 27, no. 3 (September 2020): 533.
64 Joseph H. Carens, The Ethics of Immigration, 1. issued as an Oxford Univ. Press
paperback (Oxford; New York; Melbourne; Madrid; Toronto: Oxford University
Press, 2015), 53.
65 Ukri Soirila, The Law of Humanity Project: A Story of International Law Reform
and State-Making, Studies in International Law, volume 82 (Oxford, UK; New
York, NY: Hart Publishing, an imprint of Bloomsbury Publishing, 2021).

112 Mobility as a resistance to law
of humanity.
66
The main developments within the law of humanity project
were the breakthrough and solidification of the position of human rights
that have in turn influenced development of human security as enshrined in
the Responsibility to Protect doctrine, and international humanitarian law,
and hence, significantly increased the position of individuals in international
law and their inclusion on the level of states.
At first look, such focus on individual rather than a state should support the
giving away of the national order of things, and result in an equal protection of
individuals notwithstanding their citizenship, race, gender, or wealth as it
included humanity and a human dignity as a superior principle of international
order. However, as I discussed throughout this book, humanization of interna-
tional law has not remedied the inequalities that have been rooted in the con-
cept of international law as a product of the modernity/coloniality.
67
On the
structural level, as Soirila shows,
68
despite the focus on dignity in an attempt to
overcome differential treatment of individuals, human rights were at the same
time used as tools to keep previously colonized states in check to protect the
right to private property
69
and the free trade.
70
Similarly, managerialism along
with neoliberalism contributed to the diminution of the law of humanity pro-
ject and has been sourcing a way of acting from the colonial practices. As
Soirila writes, the managerial ideas and techniques used by the UN and at the
other instances of the international governance, “were first tested in the colonial
context, as a form of indirect rule of a small number of colonial rulers over the
indigenous majority.”
71
On the one hand, on the level of effective inclusion and
the claim to social membership, the rights protection erodes the acceptable
understanding of the legal subject that is, in principle, based on citizenship and
other markers such as race.
72
At the same time, law that considers citizenship as
a norm is not able to offer any solution that would redefine the legal subject
outside the contours of citizenship. Simon Behrman shows how initial resistance
towards unjust migration laws, trying to nevertheless locate their actions within
the existing legal frameworks, ends up reproducing the laws and enforcement
measures that provoked their initial resistive action.
73
66 Soirila, 2.
67 Antony Anghie, Imperialism, Sovereignty and the Making of International Law, 1st
ed. (Cambridge: Cambridge University Press, 2005).
68 Soirila, The Law of Humanity Project, 82.
69 Ntina Tzouvala, ‘Invested in Whiteness: Zimbabwe, the von Pezold Arbitration, and
the Question of Race in International Law’, Journal of Law and Political Economy
2, no. 2 (1 August 2022).
70 Soirila, The Law of Humanity Project, 82.
71 Soirila, 135.
72 Jacopo Martire, A Foucauldian Interpretation of Modern Law: From Sovereignty to
Normalization and Beyond (Edinburgh: Edinburgh University Press, 2019), 105.
73 Simon Behrman, Law and Asylum: Space, Subject, Resistance (Abingdon, Oxon;
New York, NY: Routledge, 2018), 175.

Mobility as a resistance to law 113
The question, then, that needs to be asked is whether modern law can accept
granting rights to those whose, due to their citizenship, legal status, race, or
gender, are not considered modern and liberal – for instance, those who behave
in an unorderly fashion by arriving en masse at the border asking to be inclu-
ded? For this, law and rights would have to overcome its origins based on var-
ious forms of distinction and stop participating in the further processes of
distinction making. In consequence, it would also have to effectively delink the
right to have rights from the national framework of protection and link it with
mobility. This would mean defining community as going beyond citizenship or
universalized subject and striving to encompass everyone.
74
Therefore, we can
see that the attempts to humanize law and take responsibility for protection of
rights and human security from the state to the international level has not, and
cannot, result in granting protection to disorderly migrants. In consequence,
despite the attempts to do away with various forms of distinction by doing
away with the state, the problem of distinguishing between those who deserve
and do not deserve protection remains. Should we; then, as Soirila claims,
return to the state and its laws as the means to generate the emancipatory
change? I will come back to this question in the last section of the chapter
where I discuss the role of mobility in opening up spaces of resistance within
law. Before that, in the next section, I will discuss the role of mobility as
resistance from outside law to the national order of things. From such per-
spective it is not the human rights law but mere mobility and presence in a state
that one is not ascribed a place in, that constitutes an act of resistance against
the global system of orderly mobility.
Mobility as resistance from outside law
In this book, I conceptualize disorderly movement, both precluding and reacting
to measures aiming to regulate mobility and expel it or capture it as labour, as
resistance to the national order of things. To be sure, the type of movement
(orderly v. disorderly) affects the resistive potential of mobility. However, I
want to neither criticize migrants moving disorderly nor romanticize them as
vanguards of change and a counterforce to the national order of things. Rather,
I am interested in the function or position of mobility as such, and its potential
for resistance, particularly, in the real examples of resistance against the current
legal and political framework. This concerns extra-legal means of resistance
such as irregular residence, travel, or work, strikes or various extra-legal forms
of solidarity such as sanctuary spaces or support in crossing borders. These
behaviours are oftentimes reactions to discriminatory laws and the lack of
effective legal protection and access to legal status that I described in chapter
three, but also originate from the autonomous decision to move despite existing
74 Seyla Benhabib, The Reluctant Modernism of Hannah Arendt, New ed, Modernity
and Political Thought (Lanham, Md: Rowman & Littlefield, 2003), 185.

114 Mobility as a resistance to law
obstacles. By challenging existing laws, they expose inequalities that are
embedded in the concept of modern citizenship and unequal capacities for
movement
75
linked to it. They also, through mobile persons acting as if having
equal rights to move and belong, have the potential to change the social, political,
and legal reality. Unlike resistance from within law, that has to operate according
to the rules of the nation-state, mobility as resistance from outside law is rooted in
the act of movement itself. The very fact of mobility across borders is a critique per
se and transgression of a system where movement is regulated based on citizenship
and exclusively defined by territorial affiliation. As highlighted in the No Border
Manifesto, “For every migrant stopped or deported, many more get through and
stay, whether legally or clandestinely. Don’t overestimate the strength of the state
and its borders. Don’t underestimate the strength of everyday resistance.”
76
Therefore, even though the nation-state machine works through the broken system
of differential inclusion and exclusion, the migrant within such a system is also an
agent of resistance. From such perspective, the unauthorized migrant, is
neither a problem nor a crisis, neither a criminal nor a source of human
capital, nor an object of humanitarian pity. Instead, she comes as a poli-
tical agent, someone whose movement might lead us beyond the deadening
impasses of border nationalism and colonial capitalism.
77
To be sure, the most often brought up example of resistance against the national
order of things is the Sans-Papiers movement, originating in the 1970s in France in
reaction to limitations of the rights of migrant workers.
78
The movement which
gained national and international prominence in the mid 1990s became crucial for
the conceptualization of the agency and position of migrants in an undocumented
situation who have been living and working in Europe. Importantly, Sans-Papiers
claimed a new subjectivity, deriving not from their illegal status as clandestins but
based on a right to belong as derived from the right of movement and the duties
owned by France to former colonial subjects.
79
They expressed the claim of the
primacy of mobility and own agency over laws and borders:
75 For the discussion on the unequal capacities for movement see Mimi Sheller, Mobi-
lity Justice: The Politics of Movement in the Age of Extremes (London; Brooklyn,
NY: Verso, 2018).
76 Tamara Carauș and Elena Paris, eds., Migration, Protest Movements and the Poli-
tics of Resistance: A Radical Political Philosophy of Cosmopolitanism (Abingdon,
Oxon; New York: Routledge, 2019), 15.
77 Sherally Munshi, ‘Unsettling the Border’, UCLA Law Review 67, no. 6 (2021 2020):
1720–1767, 1725.
78 Behrman, Law and Asylum: Space, Subject, Resistance, 198. For a discussion of
other refugee and migrant protests and movements see for instance Schmalz, Refu-
gees, Democracy and the Law, 106–107.
79 Behrman, 202; Anne McNevin, Contesting Citizenship: Irregular Migrants and New
Frontiers of the Political (New York; Chichester, UK: Columbia University Press,
2011), 113.

Mobility as a resistance to law 115
When we migrants decided to leave Africa, we did so as free women and
free men. Some said that we were victims of hunger, wars, poverty, that we
were forced to flee. This is often true. But we always decided to travel
because we had a goal, we want to be able to hold our future in our own
hands. When we chose to migrate, we wanted to free ourselves from the
division between rich and poor, Europeans and Africans, free ourselves
from a system of exploitation that has no borders but creates borders and
wages wars in order to use our needs and our ideas, both in Africa, and in
Europe.
80
At the same time, they criticized the coloniality of the migration control in
Europe. As one of the founders of the movement, Madjiguène Cissé reflected:
The issue of immigration … is a larger one … of the relationship between
the countries of the north and those of the south. And I would go further,
and speak of Third World debt. I tell myself that all is linked, the whole
repressive apparatus that has existed in France for the past 20 years to
control the flow of migration, not only in France but also in Europe. The
fact that Europe has become a fortress and has barricaded itself against
those who are coming from the South is not by chance but is something
that appears as a result of a globalized economic policy … It is the [Global
North] that dictates policies in our countries and now that … the crisis is
taking place [in the Global North], they barricade themselves off and no
longer want us.
81
Sans Papiers conceptualized their mobility as not only resistance to unequal
distribution of citizenship and labour, by exercising their agency, but also as the
demand to belong. By doing so, they challenged the closeness and exclusiveness
of the existing communities based on a territorial understanding of citizenship
and its rootedness in modernity/coloniality. Behrman argues that the strength of
the movement lied in Sans-Papiers’ refusal of legal categorizations imposed
upon them but also challenging the premise that they must use existing legal
means to support their individual right to stay in France.
82
I will discuss the
implications of this approach to law in the next section.
Different forms of claiming and performing belonging and citizenship have
further been proposed and discussed in academic literature.
83
Indeed, citizenship
80 Cited in McNevin, Contesting Citizenship, 112.
81 Cited in Behrman, Law and Asylum: Space, Subject, Resistance, 204.
82 Behrman, 4.
83 Engin F. Isin, Being Political: Genealogies of Citizenship (Minneapolis: University of
Minnesota Press, 2002); Nira Yuval-Davis, The Politics of Belonging: Intersectional
Contestations, 1 edition (London: SAGE Publications Ltd, 2011); McNevin, Con-
testing Citizenship; Engin F. Isin and Greg Marc Nielsen, eds., Acts of Citizenship
(London; New York: New York: Zed Books Ltd.; Distributed in the USA by

116 Mobility as a resistance to law
is created not only through the dominant legal and political discourses, and
people such as undocumented migrants, refugees, and foreigners in general also
participate in shaping the state community. The rigid division between citizens
and foreigners resulting from the territorial sovereignty of states is being con-
tested in many ways and often remains nuanced and opaque. As Engin Isin
argues, belonging cannot be categorized through a binary distinction between
citizen/non-citizen and there will always be people, situations, or categories that
escape the territorial order of citizenship by introducing alternative solutions.
84
Citizenship, thus, is constructed in this literature as the starting point for
actions aimed at opposing the machinery of the nation-state that classifies some
as citizens and others as migrants, refugees, or persons without citizenship.
Similarly, for Saskia Sassen, the key contributors to these changes are “outsiders
and the excluded one, who continuously subject the citizenship to the new types
of claims across time and space.”
85
In legal scholarship, the work of Enrica Rigo on illegal citizenship
86
is an
example of conceptualising the role of informal citizenship practices for law by
redefining citizenship on the basis of mobility, not borders.
87
For Rigo,
migrants in an undocumented situation question, through declaration of
affiliation with the society, the features of this very society such as confinement
or exclusivity based on a territorial understanding of citizenship.
88
This brings,
yet again, the discussion on the right to have rights that is claimed in this case
through informal and performative acts of resistance. Concepts such as illegal
citizenship or Jacques Rancière ’s concept of dissensus is brought in as respon-
ses to Arendt’s condition of lack of rights due to the lack of own place. For
Rancière, dissensus means a lack of agreement to the existing order of things,
that provides the space for those who are not included (not granted a right to
speak out and be counted) and to act as if they have such rights. Strikes and
protests politicize the gap between the human and the citizen, and through
behaving as if they are part of the society, migrants in an undocumented situa-
tion start to count. For Rancière “[t]he gap between man and the citizen (…)is
here transformed into the true site of politics and right-bearing,”
89
where poli-
tics is understood as the process in which the position of those excluded, the
Palgrave Macmillan, 2008); Ayelet Shachar, ‘The Birthright Lottery: Response to
Interlocutors’, Issues in Legal Scholarship 9, no. 1 (24 January 2011): 2.
84 Isin, Being Political, 30; Isin and Nielsen, Acts of Citizenship.
85 Saskia Sassen, ‘Making Membership’, Issues in Legal Scholarship 9, no. 1 (24 Jan-
uary 2011): 6.
86 Enrica Rigo, ‘Citizens despite Borders: Challenges to the Territorial Order of
Europe’,in The Contested Politics of Mobility: Borderzones and Irregularity, ed.
Vicki Squire (Abingdon, Oxon; New York: Routledge, 2012), 204.
87 Rigo, ‘Citizens despite Borders: Challenges to the Territorial Order of Europe’.
88 Rigo, 204; Magdalena Kmak, ‘“The Ugly” of EU Migration Policy: The Role of the
Recast Reception Directive in Fragmentation of the Refugee Subject’,in Europe at
the Edge of Pluralism (Cambridge: Intersentia, 2015), 96.
89 Rancière, ‘Who Is the Subject of the Rights of Man?’, 305.

Mobility as a resistance to law 117
“part that has no part” is brought into light and where what does not have a
business to be heard or seen becomes visible and comprehensible.
90
In other words,
the subject of rights is constructed in the position in-between the human and the
citizen.
91
By demonstrating the gap in the universal human rights protection system
and then acting as if those rights are granted to them, the migrants become subjects
of politics and strive to be included in the society.
92
For instance Kim Rygiel uses a
concept of transgressive citizenship to define practices of nationality that disrupts
the functioning of the state, national, or identity boundaries in order to “create
alternative ways of thinking about and practicing citizenship.”
93
To be sure, such examples of resistance and disturbance of the concept of citi-
zenship demonstrate on the one hand, the unstoppable human mobility and
instability of legal concepts regulating belonging. On the other hand, however,
they pose serious ethical questions about the fairness of such an argument, and its
use as a response to tangible struggles of migrants for recognition and rights pro-
tection. In the work of Rancière, the discussion on the right to have rights is taken
further by recognizing the agency of migrants themselves who are here portrayed
as active individuals rather than victims of the system of statehood and the
national order of things, that their mobility can challenge citizenship also after
migrants’ death.
94
However, the problem in Rancière and other works that focus
on the performative citizenship and claiming own rights to belong is two-fold.
First, these conceptions situate the right to have rights not as being innate and
depending on the dignity of the person but rather, as depending on the ability to
claim and enact them,
95
also if enacting them ends by death.
96
The second problem
relates to the precarity, in other words, insecurity, and vulnerability’ of such illegal
or performed citizenship. To be sure, precarity as similar to other conditions
shared by humanity, such as vulnerability,
97
has been too conceptualized as able,
90 Marcus Gunneflo and Niklas Selberg, ‘Discourse or Merely Noize? Regarding the
Disagreement on Undocumented Migrants’, European Journal of Migration and
Law 12 (2010): 173.
91 Todd May, The Political Thought of Jacques Rancière: Creating Equality (Edin-
burgh: Edinburgh University Press, 2008), 142.
92 Kesby, The Right to Have Rights: Citizenship, Humanity, and International Law,
128–129.
93 Kim Rygiel, ‘Dying to Live: Migrant Deaths and Citizenship Politics along European
Borders: Transgressions, Disruptions, and Mobilizations’, Citizenship Studies 20,
no. 5 (2016): 547.
94 Kim Rygiel, ‘
Borders: Transgressions, Disruptions, and Mobilizations’, Citizenship Studies 20,
no. 5 (2016): 545–560.
95 Kesby, The Right to Have Rights: Citizenship, Humanity, and International Law,
132.
96 Kim Rygiel, ‘Dying to Live’.
97 For the discussion on vulnerability see Martha Albertson Fineman, ‘Equality,
Autonomy, and the Vulnerable Subject in Law and Politics’,inVulnerability:
Reflections on a New Ethical Foundation for Law and Politics, Gender in Law,
Culture, and Society (Aldershot, UK: Ashgate, 2013).
Dying to Live: Migrant Deaths and Citizenship Politics along European

118 Mobility as a resistance to law
through building alliances, to engender resistance against systemic structures
through which it operates.
98
Here, the distinction is made between the conditions
that are precarious in result of processes such as bordering and othering described
in chapter three, and precarity itself as being or generating resistance have been
presented as a toolbox or a proposition that “unfolds as an unfixed processes of
summing up, engaging and recombining distinct circumstances and emerging pro-
blematics […],” allowing us to rethink the limits of labour and citizenship.
99
Therefore, some authors call for investigating not precarity as a concept but,
rather, of “practices of precarity” by studying both migrant and citizen precarity as
shared condition that invites reflection on the political and social belonging to the
state and society more generally.
100
As these authors claim, such approach shifts
the boundaries between the migrant and the citizen, and reposition them according
to different criteria than formal citizenship. Thanks to such change in perspective,
one can think of the potential of the practices of precarity for de-Migranticiza-
tion
101
– focusing on conditions and position of migrants as part of the greater
scheme of the society.
102
Some scholars; however, point out that, in comparison
with citizens, migrants, in particular migrants with undocumented or semi-docu-
mented status, represent the quintessence of precarity that, on the one hand, puts
migrants in most disadvantaged position but at the same time can teach us in the
West the new forms of solidarities and resistance that challenge the national order
of things
103
and represent the logic of mobility rather than borders.
However, such approach may, nevertheless, lead to great costs for migrants
living in such conditions, who develop deep connections to places and commu-
nities where they are not allowed to stay.
104
This may result in deep fractures
98 Carl-Ulrik Schierup and Martin Bak Jorgensen, eds., Politics of Precarity: Migrant
Conditions, Struggles and Experiences (Studies in Critical Social Sciences, 2017), 6.
99 Maribel Casas-Cortés, ‘A Geneology of Precarity: A Toolbox for Rearticulating
Fragmented Social Realities In and Out of the Workplace’,in Politics of Precarity:
Migrant Conditions, Struggles and Experiences, ed. Carl-Ulrik Schierup and Martin
Bak Jorgensen (Studies in Critical Social Sciences, 2017), 47.
100 Carl-Ulrik Schierup and Martin Bak Jorgensen, ‘From “Social Exclusion” to “Pre-
carity”. The Becoming-Migrant of Labour: An Introduction’,in Politics of Precarity:
Migrant Conditions, Struggles and Experiences, ed. Carl-Ulrik Schierup and Martin
Bak Jorgensen (Studies in Critical Social Sciences, 2017), 7.
101 For the discussion on the concept see Janine Dahinden, ‘A Plea for the “de-
Migranticization” of Research on Migration and Integration’, Ethnic and Racial
Studies 39, no. 13 (20 October 2016): 2207–2225.
102 I will return to the discussion on shared precarity in the context of knowledge pro-
duction in chapter five.
103 Nicos Trimikliniotis, Dimitris Parsanoglou, and Vassilis Tsianos, ‘Mobile Com-
mons and/in Precarious Spaces: Mapping Migrant Struggles and Social Resistance’,
in Politics of Precarity: Migrant Conditions, Struggles and Experiences (Leiden: Brill,
2017).
104 Bridget Anderson, Matthew J. Gibney, and Emanuela Paoletti, ‘Citizenship, Depor-
tation and the Boundaries of Belonging’, Citizenship Studies 15, no. 5 (2011): 547–
563.

Mobility as a resistance to law 119
between the actual experience of social connectedness and the undocumented
status, in particular, in case of people who are being expelled from countries
where they lived many years or decades in the community and were vested with
other rights despite lack of legal residence status, such as voting or work.
105
Ayelet Shachar quotes an interview conducted by ethnographer Susan Coutin
with a person deported from the US after living there for more than four
decades:
I was ready to serve my country, I was a registered voter, I voted for gov-
ernor of CA, I voted for presidents, my whole life was over there, my wife,
my kids, I was a total American. I was an American in my heart, my mind.
And for them to just uproot me, and just throw me [away]… I’ve been
banished from my country.
106
This example shows that it is not ethical to expect migrants to keep living in a
limbo of inclusion and acceptance without legal recognition and legal protec-
tion, with their life contingent on their lack of legal status becoming known to
the authorities that may or may not lead to detention and expulsion. In this
sense, the long-term effects of mobility as resistance to law that operates from
its outside lead to an inhumane and insecure living condition. Even though, the
long-term residence could possibly become a basis for the right to residence
permit based on the right to privacy as enshrined for instance in the article 8 of
the ECHR, the threshold for such protection is very high. ECtHR in cases
concerning so called settled migrants recognizes the totality of social ties
between the migrant and the community as contributing to their private life and
in consequence becoming a basis for the right of the migrant to call the country
as their own. The existing jurisprudence however takes the threshold for pro-
tection of settled migrants very high, in particular in the situation of irregular-
ized residence.
107
To be sure, these examples of mobility as resistance from outside law do
push concepts such as citizenship, residence permit andworkpermittotheir
limits. They expose the gap between the rights of migrants as prescribed in
law and their implementation in practice. More importantly they also shift
focus from the gap itself to the connections and relations that emerge when
different laws, and different personal circumstances meet, that can have a
meaning also for law. Criticising Jacques Rancière for excluding the possibi-
lity for legal action as part of dissensus, Alison Kesby claims that even though
law is a part of the ruling order “(…)itcan also be aboutestablishing
105 Shachar, ‘The Birthright Lottery’,8.
106 Shachar, 10.
107 European Court for Human Rights, ‘Guide on Article 8 of the European Convention
on Human Rights’, 31 August 2022, paras 288–289, https://echr.coe.int/Documents/
Guide_Art_8_ENG.pdf; Pormes v. the Netherlands, No. 25402/14 (European Court
for Human Rights 28 July 2020) (accessed 18.12.2022).

120 Mobility as a resistance to law
relationships.
108
”Instead of focusing on the gap itself, one should look into
“reciprocity between persons in a political community”.
109
Rights should be
conceived relationally (…) in the sense of establishing relationships where
previously there were none, of seeking to establish a relationship between,
on the one hand, a particular conception of humanity posited by the law
110
and, on the other, the excluded claimants.
Therefore, emancipation could and should happen through the legislative
change and the legal practice itself in a political community.
111
In what follows,
I will engage in such proposition and discuss the possibility of emancipation
through law as resistance to the national order of things.
Mobile law as resistance
So far, I have discussed the limitations of the existing legal system in its ability
to provide effective protection against racialization and discrimination but also
precarity that is often connected with attempts to enact citizenship and
belonging outside or against law. Can modern law recognize and challenge its
own origins and deep colonial structure and at the same time retain sufficient
legitimacy allowing it to provide effective protection? Nadine El-Enany argues
that measures aimed at inclusion of racialized people on the terms of colonial
state and with the use of law rooted in colonialism will continue to perpetuate
the differential categorization, and differential inclusion. Law and adjudication
will remain, therefore, implicated in colonial practices and any adequate
response to be taken has to be based on recognition of coloniality embedded
within the origins of the state and legal system.
112
Lawyers and legal scholars
need to be aware of how law and the legal recognition process, such as instan-
ces of migration or citizenship procedures, reinforce rather than challenge the
legitimacy of the colonial state.
113
As El-Enany writes, “… people seeking
political and economic security in Britain do so out of necessity, as an essential
response to having been politically and economically persecuted by Britain.”
114
At the same time, even a legal system having its origins in colonialism produces
decisions that provide protection of rights of racialized migrants.
115
This reali-
zation requires a two-pronged approach to law in order for it to be an effective
tool for recognition but at the same time also to challenge its own colonial
108 Kesby, The Right to Have Rights, 137
109 Schmalz, Refugees, Democracy and the Law, 73.
110 Kesby, The Right to Have Rights, 137
111 Kesby, 137; Schmalz 73
112 El-Enany, (B)Ordering Britain, 222.
113 El-Enany, 223.
114 El-Enany, 224.
115 Spijkerboer, ‘Coloniality and Recent European Migration Case Law’, 137.

Mobility as a resistance to law 121
origin. Whereas legal practitioners need to play the law and focus on support-
ing access to rights and the greater inclusion of migrants into rights protection,
access to housing, support, or health, the migration studies need to reorient
themselves towards deracializing and decolonizing migration and refugee
law.
116
Coming to terms with this duality of playing the law game and resisting it at
the same time emerges not only as an ethical project, but I also believe is the
most creative application of legal scholarship. Scholars of law and migration
have been developing new ways of thinking about law and mobility, discussing
projects aiming to, on the one hand, make the human rights law more inclusive,
and on the other, rethinking existing concepts in a new, emancipatory light. To
be sure, many of these measures still aim at advancing human rights protection
within the system of the national order of things. These proposals primarily
focus on rethinking the role of sovereignty and strengthening law’s universality
within the contemporary system of the nation-states and international law.
Some of these emancipatory projects do, however, recognize and respond to the
mobility paradigm building on mobility as an emancipatory force in itself.
Many of the projects aiming at enhancing the right to have rights, the right to
the freedom of movement, or the right to belong, are based on universality of law
and general responsibility for the access to rights and recognition of inherent
similarity of all human beings, their suffering, vulnerability, and precarity. We can
see, for instance, increased reference to the work of French philosopher Emmanuel
Levinas
117
and his ethics of the Other stemming from the concept of the Face as a
locus of universality of rights
118
and responsibility for alterity rather than homo-
geneously defined community.
119
The face-to-face encounter necessarily generates
responsibility of a State as an ethical rather than political subject, as the Face car-
ries politics beyond self-interest.
120
To be sure, such ethical responsibility in itself
does not create rights and would need to be supported by political institutions and
sanctions limiting sovereignty, such as creation of enforceable rights which are
enshrined in positive law, granting the right both in a substantive way and proce-
durally through measures of implementation and sanctions.
121
Analysing the
116 El-Enany, (B)Ordering Britain, 228.
117 Jeff Pruchnic, ‘Postcritical Theory? Demanding the Possible’, Criticism 54, no. 4,
(2012): 637–657, 640.
118 Nathan Bell, ‘“In the Face, a Right Is There”: Arendt, Levinas and the Phenomen-
ology of the Rights of Man’, Journal of the British Society for Phenomenology 49,
no. 4 (2 October 2018): 291–307, 300.
119 Dorota A. Gozdecka, ‘“Barbarians” and “Radicals” against the Legitimate Com-
munity? - Cultural Othering through Discourses on Legitimacy of Human Rights’,
No Foundations Journal, no. 15 (2018): 101–126, 103; William Paul Simmons,
Human Rights Law and the Marginalized Other, 1st ed. (Cambridge: Cambridge
University Press, 2011).
120 Bell, ‘“In the Face, a Right Is There”’, 305.
121 Stewart, ‘“A New Law on Earth” Hannah Arendt and the Vision for a Positive
Legal Framework to Guarantee the Right to Have Rights’, 118; Sylvie Da Lomba

122 Mobility as a resistance to law
necessary legal guarantees of the right to have rights in a context of statelessness,
Melissa Stewart situates legitimacy of such guarantees in universality as not con-
nected to nation-states and citizenship. Stuart claims that such development “must
include a creation and protection of legal personhood at the international level for
all individuals, including the stateless and those who are nationals or residents of
states that are not state parties to international human rights treaties.”
122
This
would require creation of legal measures that would on the one hand guarantee the
right to citizenship, and at the same time allow individuals irrespective of citizen-
ship or nationality to bring claims for protection of their rights against the states.
Such approach would obviously require reimagining and limiting state sovereignty
and there has been a number of proposals to reconceptualize sovereignty as
responsibility to humanity
123
and sovereign states as trustees
124
or fiduciaries of
humanity
125
, or more generally to strengthening the law of humanity project.
126
In
all these conceptions, humanity becomes a fundament of responsibility that in the
context of mobility would mean, for instance, creating certain obligations towards
those who are not citizens or provide them with universal right to the freedom of
movement.
127
An argument for general human rights to interstate migration, as
developed by Joseph H. Carens is based on the importance of the general and
equal freedom of movement for guaranteeing individual autonomy, equality of
opportunity, and substantive economic, social, and political equality at the
global level.
128
These proposals do not suggest completely doing away with traditional
notions of sovereignty but, rather, suggest reimagining sovereignty, while
acknowledging the somewhat utopian nature of their ideas.
129
Alessutopian
idea is an attempt to re-examine sovereignty from the perspective of inter-
dependence proposed by Ian Kysel and Chantal Thomas in reference to the
world’s co-dependence as highlighted recently by the COVID-19 pandemic.
Kysel and Thomas call this perspective a new organicism that is “(…) grounded
in the idea that the universe is intrinsically interconnected while also
and Saskia Vermeylen, ‘Ethical Vulnerability Analysis and Unconditional Hospital-
ity in Times of COVID-19: Rethinking Social Welfare Provision for Asylum Seekers
in Scotland’, International Journal of Law in Context, 6 June 2022, 7.
122 Stewart, 177.
123 David Luban, ‘Responsibility to Humanity and Threats to Peace: An Essay on
Sovereignty’, 2020.
124 Eyal Benvenisti, ‘Sovereigns as Trustees of Humanity: On the Accountability of
States to Foreign Stakeholders’, American Journal of International Law 107, no. 2
(April 2013): 295–333.
125 Evan J. Criddle and Evan Fox-Decent, Fiduciaries of Humanity: How International
Law Constitutes Authority (Oxford: Oxford University Press, 2016).
126 Soirila, The Law of Humanity Project.
127 Carens, The Ethics of Immigration.
128 Carens.
129 Stewart, ‘“A New Law on Earth” Hannah Arendt and the Vision for a Positive
Legal Framework to Guarantee the Right to Have Rights’, 178.

Mobility as a resistance to law 123
characterized by fundamental unpredictability.”
130
The ethics of new organi-
cism that is grounded in such interconnection undermines the absolutist con-
ceptions of sovereignty and contributes to building the politics of
interdependence. In this context any future migration law must abandon the
commitment to absolute sovereignty as “no one is safe unless everyone is
safe.”
131
The movement towards such development could be built upon, as
Kysel and Thomas argue, the development of soft laws. As soft law brings a
dynamic element to the static field of international law,
132
it could make a push
against the absolutist view of sovereignty and serve as a catalyst for mobiliza-
tion and, in time, lead to the development of formal legal obligations. To be
sure, the already existing examples of emancipatory soft law measures point to
such solutions. For instance, the Inter-American Principles on the Human
Rights of Migrants, Refugees, Stateless Persons and Victims of Trafficking
(Inter-American Principles)
133
call for protection of the number of rights
beyond any existing human rights instrument in guaranteeing the rights of
migrants, such as cross-border justice and safe return, right to health, work,
just and favourable working conditions, liberty, and security of person or a
right of access to territory for child migrants regardless of whether they are
refugees. They also recognize a prohibition against discriminatory or arbitrary
expulsion, or affirm individualized refugee status determination as a necessary
safeguard.
134
In addition, the COVID-19 pandemic has seen other develop-
ments that seek to improve and protect the rights of migrants such as expert-
drafted Principles of Protection for Migrants, Refugees, and Other Displaced
Persons (14 Principles) calling for encompassing all migrants with such rights as
the right to non-discrimination, health, privacy, and non-return to harm,
among others.
135
Despite a non-binding nature of these documents the for-
mulation of rights of migrants goes beyond the existing human rights stan-
dards, and as the authors claim, could set more progressive standards of
protection in the future.
All these measures engage with the existing human rights instruments and
aim for strengthening protection granted based on these instruments. In other
words, they all aim at bringing back the emancipatory promise of the law of
humanity. Ukri Soirila proposes four steps of saving the law of humanity that
are also reflected in other work on emancipatory role of law in the context of
migration: (1) attention to the power relations embedded in legal concepts; (2)
engagement with struggles at the grassroot level and connecting them with
international institutions; (3) rethinking the role of the state and return to the
130 Ian M. Kysel and Chantal Thomas, ‘The Contested Boundaries of Emerging Inter-
national Migration Law in the Post-Pandemic’, AJIL Unbound 114 (2020): 352.
131 Kysel and Thomas, 352.
132 Schmalz, Refugees, Democracy and the Law, 156–157.
133 Kysel and Thomas, 351.
134 Kysel and Thomas, 352.
135 Kysel and Thomas, 352.

124 Mobility as a resistance to law
battle for the state; and (4) a call for international lawyers to accept and grasp
power in order to enforce the vision of a better world.
136
Particularly in the
context of the use of human rights, Soirila points out that many grassroot
movements had been using human rights in a very place-based, contextual way,
often constituting “another kind of human rights, aimed at building radical
alternatives to the received models of markets and democracy.” For these
movements, humanity language is, however, “a partial, fragmentary, and a
sometimes useful tool of mobilization” rather than a sole language of resistance
and emancipation.
137
Some similar suggestions were raised by scholars who instead of rethinking
the law of humanity project and enhancing the politics of recognition call for
both discursive and practical reformulation of migration law that would
recognize the role of law in generating dispossession and lead to redistribution
of wealth accumulated via the colonial dispossession, that can also be executed
through migration.
138
For instance Nadine El-Enany stresses the need to ques-
tion legal language and legal concepts, such as host states, citizens, third coun-
try nationals, refugees, and migrants, that contribute to the strengthening of the
nation-state with its colonial origin and orientation.
139
In my own work, I have
also argued for unsettling legal concepts such as minority through experiment-
ing with existing legal categories revealing their rigidity and dependence on the
nation-state system.
140
Other scholars call for the redistribution of privilege
based on the citizenship.
141
In particular, E. Tendayi Achiume calls for redis-
tribution of rights as a form of retribution or decolonization through migration
where migrants act as political agents exercising their rights equally with the
citizens of the colonial countries.
142
In particular, Achiume argues for rethink-
ing the meaning of the post-colonial state by shifting the understanding of per-
sons from post-colonial countries as strangers that excludes them from the right
to mobility even before they decide to migrate. Due to the specificity and
strength of ties between the colonial powers and their former colonies, migrants
from once colonized countries are not strangers because they are part of the self
of the colonial power, they have contributed and continue contributing to its
identity in a way that makes them part of that state. In result, they cannot be
considered as strangers and denied the right to migrate to these countries.
143
136 Soirila, The Law of Humanity Project, 149–159.
137 Soirila, 151.
138 El-Enany, (B)Ordering Britain, 227.
139 El-Enany, 228.
140 Magdalena Kmak, ‘The Right to Have Rights of Undocumented Migrants: Inade-
quacy and Rigidity of Legal Categories of Migrants and Minorities in International
Law of Human Rights’, International Journal of Human Rights 24, no. 8 (2020):
1201–1217.
141 Shachar, ‘The Birthright Lottery’.
142 Achiume, ‘Migration as Decolonization’, 1510.
143 Achiume, 1549.

Mobility as a resistance to law 125
This approach renegotiates the definition of one’s own country. Therefore,
instead of expanding the rights of nonnationals to territorial admission and
political inclusion, in other words, acting within the framework of the existing
nation-states rooted in colonialism, these nonnationals should be exempted
from the exclusionary laws and policies of the nation-states due to their coming
from the postcolonial states.
144
To be sure, they are to form the First World
citizenship as a matter of corrective, distributive justice
145
that should be based
on the scope and level of exploitation of the colonial countries according to the
following algorithm:
For any given First World Country X, the nature of its decolonial admis-
sion and inclusion obligations to Third World migrants from Country Y
depends on the extent of exploitative benefit or advantage Country X
derives from neo-colonial empire and the extent of subordination or dis-
advantage that a given migrant endures by virtue of being a national of
Country Y.
146
According to Achiume, such approach could generate different legal modes of
political membership that is more ethical and possibly more sustainable in
comparison to the current one based on the exclusive concept of citizenship.
147
Can the change of concepts and experimentation with discursive categories as
well as calls for redistributive citizenship and the battle for the new post-colo-
nial state shift our understanding of a nation-state or would it only amount to
an intellectual exercise without practical meaning for those affected by the
practices of bordering? This concerns law in particular, as its emancipatory
potential often remains very much limited. Law is often slow in recognising
already existing realities that differ from those regulated by it, and which law is
not able to narrow down. For legal scholar Davinia Cooper, already, realising
that law is not able to capture the reality allows for thinking about alternative
laws.
148
This understanding is particularly important when approaching the
nation-state which can appear, together with its laws, as static, monolithic;
hence, determining life of the people in its territory without any option for
escape. Such perspective allows one to notice that the nation-state is both dur-
able and static, but at the same time it is also unstable, plural, and contra-
dictory and can create hybrid realities.
149
In order to unsettle the monolith of
the state, Davinia Cooper proposes the concept of acting as if that through
144 Achiume, 1515.
145 Achiume, 1553.
146 Achiume, 1560.
147 Achiume, 1569.
148 Davina Cooper, ‘Towards an Adventurous Institutional Politics: The Prefigurative
“as If” and the Reposing of What’s Real’, The Sociological Review 68, no. 5 (Sep-
tember 2020): 893–916, 893.
149 Cooper, 894.

126 Mobility as a resistance to law
prefigurative thinking that encompasses already existing realities can sometimes
lead to creation of rights. One example of such a possibility is, for instance,
acting or behaving like an owner or a parent that may result in the creation of
legal rights of ownership or parenthood.
150
As Cooper writes, “…acting ‘as if’
can sometimes bring into being the missing elements of authority, recognition,
science, or entitlement required to make an enactment ‘real’.”
151
Approaching
the nation-state from this prefigurative perspective may reveal, through decen-
tring the nation-state as a paradigmatic form, a possibility for stretching and
cutting this form into other, different shapes of societal organization.
152
This
can be done also through law, which, even though encoding certain values,
presumptions and expectations about social life is itself unstable and not able to
fully control social meaning. For Cooper, assuming that law and the as if are
antithetical to one another negates the operation of legal practice which
through jurisprudence may introduce de facto changes into de jure statuses.
153
This approach, therefore, brings in the existing realities into law and creates
alternative discourses not in the future but in the now,
154
that can give a boost
to emancipatory political actions. At the same time, through such actions, the
conditions of possibility for them to happen are changing and that allows a
significant reimagination of the environment in which these actions are set “so
that a social, scientific, ethical and political ‘otherwise’ justifies, validates, nor-
malizes and holds up the actions undertaken.” This in time may lead to the
situation where the impossibility of a change that acting prefiguratively tackles,
is diminished.
155
The discussion on prefiguration is closely linked to discussions on rights to
have rights that this chapter circulates around, that emphasize the importance
of claiming the rights that one does not have or rethinking legal concepts, so
they correspond with existing reality. As Ayten Gündog
˘du writes, the new
rights claims raised by persons with an undocumented status should be treated
as declarations that did not have prior authorization, but bring to view new
subjects and rights that could not have been accommodated by normative fra-
mework of the earlier period.
156
Such new claims operate within the irre-
concilable opposites that characterize the mobile world we are living in: “the
concern with stability and the spirit of the new”.
157
Gündog
˘du situates her
claim for new rights in the inescapable tension between human rights and the
institutions established to guarantee them, that arises on the one hand because
institutions can turn against the very rights that they were supposed to uphold
150 Cooper, 897.
151 Cooper, 897.
152 Cooper, 899.
153 Cooper, 902.
154 Cooper, 907.
155 Cooper, 897.
156 Gündog
˘du, Rightlessness in an Age of Rights, 198.
157 Gündog
˘du, 160.

Mobility as a resistance to law 127
but also, on the other, because human rights can be mobilized for the purpose
of challenging existing institutional orders and proposing new ones.
158
This is
another way of revealing the unstable nature of all stabilities that can be
derailed and pushed towards new directions or new openings. To be sure, the
way to push towards the change can also happen through bringing new mean-
ing into old challenges. Analysing the movement of Sans-Papiers invoking
French revolutionary symbols to justify their acts, Gündog
˘du argues that they
augment the principle of equaliberty (epitomising the tension between equality
and liberty
159
) not only by affirming the Rights of Man but also challenging
them by drawing attention to the violent colonial exclusions that went hand in
hand with this universalist discourse. As Gündog
˘du points out, Sans Papiers’
amendment of the revolutionary beginning can be seen in their public state-
ments that directly tie the colonial past to the rights claims they make.
160
To be sure, the resistive tension between challenging the legal system and
using its potential for emancipatory change has been at the core of the Sans-
Papiers movement.
161
Sans-Papiers have challenged the existing legal system
through re-establishing themselves as active subjects and rejecting the sub-
jectivities imposed on them by the law. Their refusal to engage with law, as
well as refusal of the pressure to accept legal categories as a basis of their dif-
ferential exclusion, paradoxically restored their own legal protection. The
movement became effective on a practical level with successful resistance of
deportations and regularization of the tens of thousands of people who would
otherwise remain without documents if they would simply follow individua-
lized legal procedure. As Behrman argues, opening up the questions of belong-
ing, access to rights and the colonial legacy “increased the legitimacy of the
claim to stay and to be legally regularized (…) paradoxically, this could only be
achieved by extending the parameters of the question beyond the law.”
162
Rights therefore are intimately linked to political visibility and political recog-
nition and the right to have rights requires both law and politics operating in a
non-hierarchical relationship.
163
Refusal to become engaged with law may also strengthen the law itself as it
recognizes its instability and tolerates those who do not even aspire for legal
recognition. In her article The Right Not to Have Rights, Oudejans theorizes
the situation where migrants themselves are not interested and do not aspire for
legal recognition and their presence, as such, is also tolerated by law; in other
158 Gündog
˘du, 210.
159 Étienne Balibar and Étienne Balibar, Equaliberty: Political Essays (Durham, NC:
Duke University Press, 2014).
160 Gündog
˘du, Rightlessness in an Age of Rights, 199.
161 Behrman, Law and Asylum: Space, Subject, Resistance, 144.
162 Behrman, 145; See also Maja Sager, ‘Struggles Around Representation and In/Visi-
bility in Everyday Migrant Irregularity in Sweden’, Nordic Journal of Migration
Research 8, no. 3 (1 September 2018), 175.
163 Schmalz, Refugees, Democracy and the Law, 57.

128 Mobility as a resistance to law
words, law applies to them by no longer applying. This approach shifts the
focus from challenging law towards accommodation of irregularity by law. The
question that Oudejans poses is
what concept of law can accommodate the presence of irregular immi-
grants (i) without necessarily reducing them to a naked life struggling to
survive or assigning them a political agency and (ii) without taking recourse
to force and violence to restrain the movement and presence of irregular
immigrants?
164
In other words, how to think about the legal system within which immigrants
are not legally included, but not removed from the polity that excludes them.
165
Such ability of law to function outside of the inclusion-exclusion divide in the
situation when the presence of migrants does not result in diminution of public
order and a destruction of law
166
does not destroy the legal system, but allows
for the life in the tension of law’s mobility between violence and politics.
Oudejans, similarly as Gündog
˘du, builds her argument on fleshing out the
possibility and potentiality of the legal change. She sees a way out exactly in
this form of potentiality, in the tension between the actual and the possible.
167
This is exactly the moment where the mobility of law itself can be brought into
discussion, that requires balancing between what is potential and what is
impossible.
168
Here, law that applies by no longer applying stays within the
area of potentiality rather than impossibility.
169
As Oudejans writes, law stays
in its ability not to be, it maintains its actuality through a form of suspension.
The fact that sovereignty is able to maintain its own im-potentiality
170
both in
the case of the right not to have rights but also in the case where Sans-Papiers
refuse to engage with existing legal categories has significance as it shows first
of all that life does not have to be annexed by law but, rather, that it is irre-
ducible to a legal status.
171
Second, the irregularized migrant can rather be seen
as “playing the law.” By doing this the irregularized migrants exercise a choice
between violent repression that goes beyond law or laws underperformance.
172
By the practice of playing the law individuals do not consider or even notice
law as the source of restraint, therefore, do not strive for legal inclusion.
173
At
164 Oudejans, ‘The Right Not to Have Rights’, 449.
165 Oudejans, 450.
166 Oudejans, 454.
167 Oudejans, 459.
168 Oudejans, 459.
169 Oudejans, 460.
170 Oudejans, 461.
171 Oudejans, 462.
172 Oudejans, 463; see also Helen Schwenken, ‘“The EU Should Talk to Germany”
Transnational Legal Consciousness as a Rights Claiming Tool among Undocu-
mented Migrants’, International Migration 51, no. 6 (December 2013): 132–145, 2.
173 Oudejans, 467.

Mobility as a resistance to law 129
the same time, law does not lose its strength of meaning because its own
withdrawal is part of its operation. It does not need to bring itself to the verge
of violence.
Oudejans builds her argument on the concept of varying degrees of legalism
taken from the scholarship of Judith Shklar. On the one hand, not everything is
or can be regulated by law and at the same time the forms of behaviour that
disregard law do not bring chaos, disorder, and collapse of the legal system.
174
“Shklar’s idea of varying degrees of legalism; thus, offers an in-route for
understanding the potentiality of the law in terms of an underenforcement of
immigration laws in which the law maintains itself in no longer applying.”
175
This approach both strengthens law, and at the same time it acknowledges that
human life cannot be reduced to it because it is also structured through other
relations such as friendship, love, and solidarity which can serve as better
safeguards than law.
176
Through ignoring or refusing to follow the law, law
itself is paradoxically strengthened as uncovering of its instability does not lead
to law’s depreciation but leads to accept its mobile core.
Conclusions
At the beginning of this chapter, I asked whether it is possible to remedy the
system based on distinction into orderly and disorderly mobility with the
recourse to law that is in its substance exclusive and rooted in modernity/colo-
niality. In other words, I was interested whether there can be a shift from static
justice based on territory and borders towards mobility justice. I approached
mobility as a form of resistance towards the national order of things both from
the inside and from the outside of law as well as through the interconnection of
the two. To be sure, any distinction between inside and outside is in the context
of mobility an artificial one, rooted in thinking about law and human rights in
the static way. For law operates through definitions and categories that are not
and cannot be fully determined. They remain mobile and their meaning can
change, depending on the possibility that has not yet materialized and that
might materialize given the societal readiness for change. All these openings on
the one hand give some space for questioning arbitrary and historically con-
tingent legal categories, and at the same time allow to inquire into the limits of
the emancipatory potential of law.
In the first part of the chapter, I defined resistance as an inherent and neces-
sary element of every power relation characterized by resistive tension between
mobility and stasis that is revealed through bringing to light law’s mobility. In
the second part of the chapter, I discussed the relationship between law and
resistance in the context of orderly mobility, focusing on traditional ways of
174 Oudejans, 467.
175 Oudejans, 468.
176 Oudejans, 468.

130 Mobility as a resistance to law
mobilizing law within the limits of the nation-state and its borders. I argued
that protection in a form of human rights can be effectively claimed only by
those who move in an orderly fashion while in the context of the disorderly
movement, rights are often linked with migrants’ own conduct and are only
available on a minimal level often in a form of humanitarian protection, and
mostly to those particularly vulnerable.
In the third part of the chapter, I moved to discuss law and resistance in the
context of disorderly mobility, where mobility becomes an act of resistance
against law rooted in the act of movement itself. I analyse the implications of
the acts of resistance for law itself in particular taking into consideration Sans-
Papiers movements and discuss the role of performative acts of belonging for
legal categories such as citizenship. Finally, in the fourth part of this chapter, I
deconstructed the distinction between resistance from within and outside law
by reference to the mobility of law and its potential for emancipatory change. I
tapped into new ways of thinking about law and mobility, focusing on four
interconnected ways of conceptualizing mobility as resistance to law: empha-
sising shared humanity, the potential of prefiguration, role of conceptual
change, and conceptualizing the gap between law and practice as space for
mobility and change. Even though some of the existing proposals primarily
focus on rethinking the role of sovereignty and strengthening law’s universality
within the contemporary system of nation-states, others do recognize and
respond to the mobility paradigm building on mobility as an emancipatory
force in itself.
Importantly, the discussion in this chapter also poses the ethical question of
who should be acting in an emancipatory fashion? Is it a role of migrants, who
through bringing new forms of solidarities to the global North teach us about
equality, or is it the role of citizens of the Western states to change the ways we
enact inclusion? This requires conceptual change in the way we think about law
and legal scholarship; in particular, bringing an ethics of interconnection to
law. On the one hand we need to support inclusion but also at the same time
we need to resist the system that is inherently exclusive and operates as a form
of inclusion that is conditional or differential. One of the solutions is to
understand the access to rights as part of retributive justice that aims to remedy
the ills caused by colonialism. At the same time, we need to focus on how law
already accepts and includes all forms of difference, even if it means choosing
not to act against its own violations. This means living in the tension between
what law can regulate and what it cannot, between stability and mobility in
law, that the result of activities ignoring or resisting the use of law can para-
doxically strengthen law and allow for emancipatory change. This analysis
leads me to two paths of action. The first is demigrantization of the right to
have rights which comes out of the law of humanity project but takes seriously
the equality and shared humanity of all people and result in a battle for the new
state. The second is bringing in new knowledges and epistemologies rooted in
decolonial thinking; in particular, the epistemologies from the South.

Mobility as a resistance to law 131
In the final chapter of this book, I embark on rethinking legal subjectivity as
based in mobility, by focusing on legal subject as the one that moves rather
than the one that stays put. This legal subject brings with them the knowledges
gained through mobility that can contribute to the construction of the new
system of belonging. The various ways of bringing new knowledges include so
called mobile commons, knowledges that emerge through teaching and learning
with refugees or the role of refugee academics. I argue that these knowledges
need to be incorporated on all stages of law making and law application. This,
I claim may be the future of the legal change and emancipation.

Chapter 5
Mobility as a method of legal
knowledge production
Introduction
Judith Shklar, whose concept of varying degrees of legalism I discussed in the
previous chapter, had herself experienced exile as she flew with her family from
Riga to the USA during World War II.
1
This experience has also, according to
commentators, affected her scholarship. Scholars of Shklar’s work link her
experience of exile and immigration with her academic work. Seyla Benhabib
argues that “Shklar developed and actively promoted a certain habitus of and
view that have their roots in her experience of exile and emigration (…).”
2
In
particular, Shklar’s experience of the threat of two totalitarianisms (Nazism
and Stalinism) has prompted her to focus in her work on the need to rethink
contemporary problems in light of this experience. She understood the need to
rethink political theory in modern liberal democracy, to abandon great systems,
ideas, and theorems, and bring political theory closer to the social and political
realities of modern society.
3
As Ashenden and Hess write, “[t]he exile perspec-
tive allowed her to explore various key questions for political thought – condi-
tions for submission to rules, political obligation, and so on – from a different
angle.”
4
In this chapter, I argue that the experience of exile, displacement, or migra-
tion, like in the case of Shklar but also many others, provides a lens through
which one could address the position and role of migrants and those people
called refugees in contemporary societies, including questions related to navi-
gating the space in-between the actual and the possible. To be sure, it is not
possible to bridge the gap in the modern law rooted in modernity/coloniality
1 Samantha Ashenden and Andreas Hess, eds., Between Utopia and Realism: The
Political Thought of Judith N. Shklar, 1st edition, Haney Foundation Series (Phila-
delphia: University of Pennsylvania Press, 2019), 7.
2 Seyla Benhabib, Exile, Statelessness, and Migration: Playing Chess with History
from Hannah Arendt to Izaiah Berlin (Princeton: Princeton University Press, 2018),
144.
3 Ashenden and Hess, Between Utopia and Realism,9.
4 Ashenden and Hess, 14.
DOI: 10.4324/9781003254966-6
This Chapter has been made available under a CC-BY-NC-ND 4.0 license.

Mobility as a method of legal knowledge production 133
and to fully include those excluded from modern subjectivity due to their dis-
orderly mobility. Reza Banakar argues that the conflicts that we encounter in
modernity as dualities, antinomies, and dichotomies, like the one between us
and others, are built into modernity and modern law in particular. “The ‘gap’
is, thus, part of the reality of modern law—part of its definition.”
5
As a possi-
ble way forward, Banakar suggests that the focus should be
shifted away from attempts to close the ‘gap’ and moved towards the
examination of the interplay between law as a system of legal rules, prac-
tices, doctrines, and decisions, on the one hand, and as a form of experi-
ence, a specific sphere of social action and an institutionally-based form of
socio-cultural practice, on the other.
6
As Shklar argues, the law is limited in what it can do and it also is not able to
respond to every social need.
7
For instance, in order to understand injustice, one
would need to identify, recognize, and listen to victims of injustice as a more
effective method than striving for a perfect state of justice and constant better-
ment of laws.
8
It is, therefore, through the analysis of the experience of law
against the plethora of everyday experiences that one can understand better the
function of law in society and identify possible avenues for coping with the gap
and with a life in-between the actual and the possible.
My main argument in this book is that mobility affects the purpose and the
scope of law, but it is also imprinted in its epistemological and ontological
qualities. In particular, new knowledges can be generated through the experi-
ence of movement, and the experience of law regulating that movement. In this
chapter, I focus specifically on the role of the experience of mobility for law,
and I argue for the need for inclusion of legal knowledges based on mobility in
law and policymaking. To be sure, critical migration scholars call for ground-
ing belonging and inclusion in migrant experiences of injustice and fore-
grounding the knowledges that this experience generates as tools to foster
justice.
9
This chapter turns, therefore, towards analysing law as experience. In
particular, it focuses on the role and meaning of knowledges that are produced
5 Reza Banakar, Normativity in Legal Sociology: Methodological Reflections on Law
and Regulation in Late Modernity (New York; Dordrecht; London: Springer, 2015),
54.
6 Banakar, 54.
7 Nanda Oudejans, ‘The Right Not to Have Rights: A New Perspective on Irregular
Immigration’, Political Theory 47, no. 4 (August 2019): 447–474, 468.
8 Ashenden and Hess, Between Utopia and Realism, 13.
9 E. Tendayi Achiume, ‘Migration as Decolonization’, Stanford Law Review 71 (2019),
1509–1574; Vítor Lopes Andrade et al., ‘Queering Asylum in Europe: A Survey Report’
(Brighton: University of Sussex, 2020), https://www.researchgate.net/profile/Nuno-
Ferreira-27/publication/342961863_Queering_Asylum_in_Europe_A_Survey_Report/
links/5f0f6cdb45851512999bd22a/Queering-Asylum-in-Europe-A-Survey-Report.pdf
(accessed 26.10.2021).

134 Mobility as a method of legal knowledge production
through the experience of mobility for emancipatory changes of law and legal
practice. By mobile knowledges I not only understand the overall knowledges,
experiences, and skills that persons in a refugee situation, and migrants had
before leaving their home countries, but also those knowledges that they
acquire in transit and in the country of destination. These knowledges have
been conceptualized by scholars as collective pools of resources – the commu-
nities of knowledge
10
or mobile commons
11
– that help to navigate life in transit
and life in the host country. Moreover, they at the same time allow us to
question the system of management of mobility, the global mobility infrastructure,
that generates these experiences and to move beyond stable, ahistorical, and deeply
ingrained conceptualizations of human mobility and ideas of political community
on which they are built, such as the distinction between a citizen and a foreigner.
This can only happen, however, if these experiences are viewed as contemporary
manifestations of historical developments of ideas regarding belonging and identity,
which are rooted in the stable concept of the nation.
12
I argue that in order to understand and benefit from the full potential of
mobile knowledges rooted in experiences of movement and displacement, one
needs to put attention on the following aspects of mobile knowledges. First, is
historical and follows an argument that dominant ideas are maintained by the
control of knowledge and by the deployment of stable concepts such as state,
nation, and community. Bringing historicized knowledges produced by and for
refugees show that these dominant and stable concepts and narratives are not
self-evident. Foregrounding minoritized ways of knowing can, when given
enough attention, be the basis of new forms of political action.
13
The second
aspect is linked with the first one and based on the understanding that legal
concepts and legal rules are not stable, but mobile and contingent. This also
concerns typologies of various categories of migrants that emerged in interna-
tional law and that are rooted in historical, political, and often highly value-
loaded contexts.
14
Rethinking legal concepts that are used in the context of
10 Tekalign Ayalew Mengiste, ‘Refugee Protections from Below: Smuggling in the Eri-
trea-Ethiopia Context’, The ANNALS of the American Academy of Political and
Social Science 676, no. 1 (March 2018): 57–76.
11 Nicos Trimikliniotis, Dimitris Parsanoglou, and Vassilis S. Tsianos, Mobile Com-
mons, Migrant Digitalities and the Right to the City (London: Palgrave Macmillan
UK, 2015); Nicos Trimikliniotis, Dimitris Parsanoglou, and Vassilis Tsianos,
‘Mobile Commons and/in Precarious Spaces: Mapping Migrant Struggles and Social
Resistance’,in Politics of Precarity: Migrant Conditions, Struggles and Experiences
(Leiden: Brill, 2017).
12 Prem Kuman Rajaram, ‘Refugee and Migrant Knowledge as Historical Narratives’,
in Refugees and Knowledge Production: Europe’s Past and Present, ed. Magdalena
Kmak and Heta Björklund (Abingdon, Oxon: Routledge, 2022), 38.
13 Rajaram, 41.
14 Günter Bierbrauer, ‘Toward an Understanding of Legal Culture: Variations in Indi-
vidualism and Collectivism between Kurds, Lebanese, and Germans’, Law & Society
Review 28, no. 2 (1994): 73.

Mobility as a method of legal knowledge production 135
mobility such as the nation-state, citizen or foreigner allows for rethinking the
legal position of people that are categorized according to these concepts.
Finally, the third aspect is the use of individual and communal knowledges rooted
in mobility in practice, in particular by translating them into legal and political
language.
15
This can mean, for instance, that migrants and those people called
refugees take part in the legislative or consultative processes but it can also include
collaborative research methods
16
or such academic projects, as rewriting existing
jurisprudence from the perspective of migrants and people in a refugee situation,
17
that can foreground alternative imaginaries of legal systems.
Through the focus on mobile epistemology or mobile knowledges, this
chapter juxtaposes methodological nationalism and the state-based concept of
belonging
18
with communities of knowledges that encompass not only knowl-
edges of law but also experiences of living and acting with, along, or against the
law.
19
By countering the official knowledges, mobile knowledges contribute to
the resistive tension that lies at the very centre of power relations in the state.
20
Importantly, the knowledges of law gained through mobility cuts across the
divide between mobility as resistance from the outside of law and from within
law and, therefore, allow for more complex and multifaceted perspectives on
law. Staying with the mobile and contingent knowledges that unsettle the
dominant categories can also generate new legal strategies. This chapter,
therefore, analyses particular forms of resistance to the static concept of the
nation-state that is generated by mobile knowledges and emphasizes both the
agency of mobile individuals, and approaches mobility though a novel per-
spective as a method of studying law.
21
After conceptualizing the epistemological role of mobility for knowledge produc-
tion in general, the chapter takes on juxtaposing the dominant and mobile
15 Ukri Soirila, The Law of Humanity Project: A Story of International Law Reform
and State-Making, Studies in International Law, volume 82 (Oxford, UK; New
York, NY: Hart Publishing, an imprint of Bloomsbury Publishing, 2021), 151.
16 See for instance Malene H. Jacobsen, ‘Practical Engagements in Legal Geography:
Collaborative Feminist Approaches to Immigration Advocacy in Denmark’, Area 53,
no. 4 (December 2021): 595–602.
17 See for instance ‘Rewriting Jurisprudence: Centring Refugee and Migrant Lived
Experience’, https://law.anu.edu.au/rewriting-jurisprudence-centring-refugee-and-m
igrant-lived-experience (accessed 18.12.2022).
18 Andreas Wimmer and Nina Glick Schiller, ‘Methodological Nationalism and
beyond: Nation-State Building, Migration and the Social Sciences’, Global Networks
2, no. 4 (October 2002): 301–334.
19 See also Ayse Güdük and Ellen Desmet, ‘Legal Consciousness and Migration:
Towards a Research Agenda’, International Journal of Law in Context 18, no. 2
(June 2022): 213–228.
20 Simon Thorpe, ‘In Defence of Foucault: The Incessancy of Resistance’, Critical
Legal Thinking, 2 July 2012, https://criticallegalthinking.com/2012/02/07/in-de
fence-of-foucault-the-incessancy-of-resistance/ (accessed 18.12.2022).
21 See such argument developed by Konuk, ‘Jewish-German Philologists in Turkish
Exile: Leo Spitzer and Erich Auerbach’.

136 Mobility as a method of legal knowledge production
knowledges. In particular, in reference to previous chapters of this book, it recounts
the dominant knowledges of migrants and people in a refugee situation that are
perpetuated by media and politicians. Then, in the third section the chapter
turns toward the development of legal knowledges by the exiled, displaced, and
refugee scholars in history and currently. Scholars and scientists, in particular,
due to the specificity of their work often reflect on and translate their own
experiences into scientific theories, including theories of the state, society, and
law.
22
Mobile knowledges, however, are not produced only by intellectuals. For
instance, knowledge on border crossing routes, informal economies, and sur-
vival strategies is continuously produced and shared through word of mouth or
digitally by people on the move, fostering resistance to the processes of exclu-
sion and bordering.
23
For that reason, in the following section this chapter
shifts its focus from traditionally understood scientificknowledgestothe
broader scope of communities of knowledge, in particular, to the ways law is
being understood and embodied by persons on the move and directly affected
by it. Finally, this chapter develops a more comprehensive understanding of
movement and mobility as a method of studying and resisting law and outlines
methodological and ethical concerns for studying such knowledges.
Epistemological role of mobility for law
In her letter to Ruth Woodman Russell from 9 December 1945 Professor Louise
W. Holborn, unable to participate in the faculty meeting, shared her comments
on the changes in the curriculum in history and social sciences of the Pine
Manor Junior College for Women where she was teaching:
Two aspects of general educationseemstomeparticularlysignificant
for them [students]: the introduction to the broad areas of general
knowledge and human experience, and the elucidation of their relation-
ship one to another. Both seem to me of the utmost importance in the
preparation of our students for fruitful living both as individuals and as
citizens.
24
Holborn, an early feminist, and a political refugee from Nazi Germany considered
learning from experience as crucial and became a pioneer of refugee studies who
focused extensively on the legal and factual position of refugees under the League
22 See for instance Tuori, Empire of Law: Nazi Germany, Exile Scholars and the Battle
for the Future of Europe; Ash and Söllner, Forced Migration and Scientific Change:
Émigré German-Speaking Scientists and Scholars after 1933.
23 Trimikliniotis, Parsanoglou, and Tsianos, ‘Mobile Commons and/in Precarious
Spaces: Mapping Migrant Struggles and Social Resistance’.
24 Louise W. Holborn, ‘Letter to Ruth Woodman Russell’, Archival document, 12
September 1945, Schlesinger Library on the History of Women in America, Harvard
Radcliffe Institute.

Mobility as a method of legal knowledge production 137
of Nations and the UN. According to Emilyn Brown, an archivist from the Schle-
singer Library at Harvard “[m]embership records, notes, and interviews confirm
that Holborn drew critical parallels between her experience and the issues faced by
international refugees.”
25
Holborn’sself-reflection and her research activities show
that the knowledges produced through the experience of mobility and movement
have meaning for how the system of migration management, including law, is
constructed, structured, and understood.
Mobility as a mode of knowing, or the production of knowledge through
mobility is not a new field of study and the movement or circulation of
human beings has been recognized as a necessary element of the transfer of
valuable knowledge.
26
New directions in research have emerged, however,
that focus more comprehensively on the knowledges produced through the
experience of exile or displacement, or through the experience of movement
itself. To be sure, this also concerns the role of mobile knowledges for law.
Beyond the research on cross-border mobility of people who are taking their
laws with them, which I discussed in Chapter 1, emerging research focuses
also on the epistemological role of mobility for law, which focuses on how
the experiences of those on the move affect how they understand and think
about, apply, and resist law. This is visible, for instance, in the third gen-
eration of exile studies
27
that focus on the impact of the experience of
refuge or forced displacement for knowledge, and the role of migration in
creating new knowledges and new theories by combining experiences and
previously unrelated ideas.
28
Exile studies have focused traditionally on his-
torical academic displacement (such as for instance of German-Jewish scho-
lars forced to leave Nazi Germany). The new focus of exile studies does not
only bring forward the agency of the émigrés and recognizes the role of
affects and emotions in the process of knowledge production,
29
but also
includes the expanding field of knowledges produced outside Europe and
epistemologies of contemporary migration that expands beyond the spheres
25 Magdalena Kmak, ‘From Law’s Discourse on Refugees to Refugees’ Discourse on
Law’, Redescriptions: Political Thought, Conceptual History and Feminist Theory
24, no. 2 (16 December 2021): 110–128, 117.
26 See for instance Peter Burke, A Social History of Knowledge II: From the Encyclo-
paedia to Wikipedia (Cambridge: Polity Press, 2012); Peter Burke, Exiles and
Expatriates in the History of Knowledge, 1500–2000, The Menahem Stern Jerusalem
Lectures (Waltham, Mass.: Brandeis University Press/Historical Society of Israel,
2017).
27 Magdalena Kmak and Heta Björklund, eds., Refugees and Knowledge Production:
Europe’s Past and Present (Abingdon, Oxon; New York: Routledge, 2022), 4.
28 Kaius Tuori, Empire of Law: Nazi Germany, Exile Scholars and the Battle for the
Future of Europe (Cambridge: Cambridge University Press, 2020), 20.
29 See for instance Paolo Boccagni and Loretta Baldassar, ‘Emotions on the Move:
Mapping the Emergent Field of Emotion and Migration’, Emotion, Space and
Society 16 (August 2015): 73–80.

138 Mobility as a method of legal knowledge production
of art and academia, encompassing, for instance, students
30
or humanitarian
workers.
31
Challenging the dominant forms of knowledge
The exiled or displaced knowledges often can challenge dominant knowl-
edges of and ways of thinking about migration, that is generated within the
overarching master frame of the nation-state that increasingly tends to per-
ceive migrants as security risks or hybrid threats,
32
or a resource that can be
used to counter the demographic crisis, in particular remedying economic
dependency ratio.
33
These narratives are rooted in a perspective that I dis-
cussed in Chapters 2 and 3, where citizenship is a norm not only in the legal
understanding of who has a right to enter and reside in the state but also in
the understanding of security risks or capabilities and skills. Typically,
migrants’ presence is considered as generating higher risks than citizens and
at the same time, migrants are perceived as having a lack of skills – lan-
guage, knowledge of the domestic labour market, or the domestic ways of
working.
34
Another level of discourse on migration varies between present-
ing them as illegal migrants or illegals,victims,and heroes,
35
or saviours.
From this perspective, Bergholm and Toivanen have identified five dominant
narratives or knowledges about refugees that dominate in European policy
and media space:
The first narrative sees refugees or migrants as the source of the ‘crisis’ and
the problems Europe is facing. The second takes a managerial role in
stressing how the ‘flows’ and ‘streams’ of refugees need to be controlled
and managed. The third is describing the refugees as vulnerable objects that
30 Céline Cantat, Ian M. Cook, and Prem Kumar Rajaram, eds., Opening up the Uni-
versity: Teaching and Learning with Refugees, Higher Education in Central Per-
spective: Practices and Policies, Volume 5 (New York: Berghahn Books, 2022); Yi’En
Cheng, ed., International Student Mobilities and Voices in the Asia-Pacific: Letters
to Coronavirus (Singapore: Springer Nature Singapore, 2022).
31 Nadine Hassouneh and Eliza Pascucci, ‘Nursing Trauma, Harvesting Data: Refugee
Knowledge and Refugee Labour in the International Humanitarian Regime’,in
Refugees and Knowledge Production: Europe’s Past and Present, ed. Magdalena
Kmak and Heta Björklund (Abingdon, Oxon; New York: Routledge, 2022).
32 Rajaram, ‘Refugee and Migrant Knowledge as Historical Narratives’, 40.
33 Bea Bergholm and Reetta Toivanen, ‘Narratives on “refugee Knowledge” in the
Institutions of Europe’,in Refugees and Knowledge Production: Europe’s Past and
Present, ed. Magdalena Kmak and Heta Björklund (Abingdon, Oxon; New York:
Routledge, 2022), 53.
34 Bergholm and Toivanen, 53.
35 Karina Horsti, ‘Hope and Despair: Representations of Europe and Africa in Finnish
News Coverage of “Migration Crisis”’, Communication Studies, 2008, 3–25; Mervi
Leppäkorpi, ‘In Search of a Normal Life: An Ethnography of Migrant Irregularity in
Norther Europe’ (Joensuu, University of Eastern Finland, 2021), 279.

Mobility as a method of legal knowledge production 139
need to be taken care of; this applies especially to women and children, so
the fourth narrative, refugees as a potential security threat, is mainly
applied to men. The fifth sees refugees as a potential source of help or even
saviours for Europe in terms of a (cheap) labour force and means of cor-
recting Europe’s unbalanced age-dependency ratio [emphases by the
authors].
36
As Bergholm and Toivanen argue, these five dominant narratives that are based
on stereotyping and homogenizing migrants, taken together prevent the possi-
bility of seeing refugees and migrants as people with multifaceted skills and
perspectives that we could learn from, whose knowledges can be included into
changing dominant agendas in Europe.
37
One example of such skill recognition
and redefinition of the dominant narrative comes from Finland and concerns a
shortage of labour due to the closure of external borders during the COVID-19
pandemic, which significantly affected food production. One of the few justified
exceptions from the limitation of movement related to work “(…) that is
important for the functioning of society or security of supply, requires work
tasks to be carried out by persons from another country, and cannot tolerate
delay [emphasis by the author].”
38
In this context, the concepts such as borders,
and security acquired a completely different meaning. During the pandemic, the
borders must be open for third-country nationals to secure the supply of food.
Ukrainian seasonal workers, previously considered unskilled, have been, there-
fore, reconceptualized as critical workers and persons with skills necessary for
Finland.
39
To be sure, the dominant views on the role and the meaning of migration
can be more easily problematized, but also redefined inthe contextofan
unprecedented crisis that, on the one hand, can highlight and strengthen exist-
ing inequalities and problems, but also allow for quicker changes in existing
practices. In many other cases, in order to deconstruct dominant narratives, one
needs to turn to the narratives provided by migrants and people in a refugee
situation, linking their contemporary experiences with historical processes. I
follow here Prem Kumar Rajaram who shows how unified, dominant, major-
itarian narratives and experiences are constructed through historical processes
of policing and exclusion of minoritarian experiences and narratives.
40
Accord-
ing to Rajaram, “knowledge production by subaltern groups may denaturalize
the state-nation-community triad and the ways of seeing and thinking they
36 Bergholm and Toivanen, ‘Narratives on “refugee Knowledge” in the Institutions of
Europe’, 55.
37 Bergholm and Toivanen, 63.
38 Daria Krivonos, ‘Ukrainian Farm Workers and Finland’s Regular Army of Labour’,
30 April 2020, https://raster.fi/2020/04/30/ukrainian-farm-workers-and-finlands-re
gular-army-of-labour/ (accessed 18.12.2022).
39 Krivonos.
40 Rajaram, ‘Refugee and Migrant Knowledge as Historical Narratives’, 41.

140 Mobility as a method of legal knowledge production
encourage.”
41
Referring to Foucault’s concept of “local critique” as a response
to generalizing and universalizing tendencies and knowledges, Rajaram argues
that to challenge the dominant narratives through the subjugated knowledges
means to foreground the historical experiences behind stable concepts.
42
Alternative knowledge about or by people known as refugees is at its
most striking when read as markers of these complex historical rela-
tions. This means reading knowledge about or by people called refugees
not as ‘refugee knowledge’, but as expressions of a condition of mar-
ginalization or subjugation that has historically been important in sta-
bilising the concepts we use to arrange how we live together and are
governed (…).
43
However, such minoritized narratives have been pre-emptively dismissed or
devalued both historically and nowadays as not modern and not relevant for
contemporary societies. For example, Rajaram brings two types of narratives –
the historical narratives of tea plantation workers in Colonial India and current
narratives of admissions of displaced people into higher education institutions
in Europe, and how they differ from the dominant narratives about colonized
people and migrants with skills.
44
For instance, discussing the silencing of
Oraons’ narratives of their working experiences at colonial tea plantations in
Chota Nagpore, Rajaram recovers “antagonistic historical experiences” that
have generated the resistance of Oraons against the colonists. These narratives
have been however dismissed as impossible to be initiated by the colonized
people themselves. For British colonial authorities, Oraons’ resistance must
have been induced by a third party, in this case, suspected German missionaries.
Thus, by naming the Oraon workers as backward and primitive their agency at
resisting colonial oppression was denied to them.
45
Similarly, in the context of
the admission to higher education nowadays, people with a refugee background
are not perceived as having knowledges and skills to study but rather their
knowledges and skills are devalued during the admission policies, and they
themselves are portrayed as a set of problems that have to be addressed through
the various integration measures. In the context of these groups of people,
Rajaram argues that the entry into a university of marginalized groups
(including people problematized as “refugees” requiring integration) who are
aware of the historical conditions behind their marginalization has the potential
41 Rajaram, 40.
42 Rajaram, 41.
43 Rajaram, 42.
44 Prem Kuman Rajaram, ‘Refugee and Migrant Knowledge as Historical Narratives’,
in Refugees and Knowledge Production: Europe’s Past and Present, ed. Magdalena
Kmak and Heta Björklund (Abingdon, Oxon: Routledge, 2022).
45 Rajaram, 46.

Mobility as a method of legal knowledge production 141
to help us rethink the relationship of universities and education, and the role of
the university in the public sphere.
46
In light of the exclusion, dismissal, or devaluation of migrant and refugee
knowledges and experiences, knowing and not knowing becomes itself a matter
of multifaceted inclusion and exclusion, also in the context of the legal process
such as the refugee status determination procedure. Ali Ali points out two
consequences of the exclusion of knowledges that had become visible in his
interviews with queer asylum seekers in Helsinki – diminution of one’s own
knowledge and experience in the face of a court hearing, and diminution of the
person’s identity and experience as a result of the negative decision related to
the refugee status. As Ali writes, interviewed asylum seekers saw their own
culture and origin as shameful and prevent them from receiving refugee status. I
will quote here Ali recounting his discussion with Ido concerning a forthcoming
court hearing,
‘I’m a son of tribes – I do not know how to speak with judges.’ Said Ido,
with an air of panic, a few weeks before the court hearing regarding his
appeal against the state’s rejection of his asylum claim. He added
anxiously, ‘I do not have the education for that.’ I asked Ido if speaking
about waiting in permanent anxiety for recognition of his need to stay in
Finland (and fear of being deported back to Iraq) required education. Ido
didn’t even seem to dwell on my comment. He insisted that the main issue
was to convince the judge that he was ‘gay’.
47
In this context, as Ali argues, Ido’s stigmatized culture prevents any imagina-
tion for possibilities of living beyond exclusion and othering.
48
On the other
hand, the lack of legal recognition of the protection claim seems to exclude the
asylum seekers also from their own community, stigmatising them as “fake
cases.” Ali shows how the official rejection of the claim for international pro-
tection on the grounds of sexual orientation or gender identity often amounts to
the discrediting and condemnation of persons seeking asylum who are seen by
fellow persons in a refugee situation as abusing the refugee procedure and
“spoiling” the image of LGBTQ+ asylum seekers. This happens despite the
well-recognized difficulty and procedural shortcomings affecting, in multifaceted
ways, and translating complicated experiences of displacement into a coherent
story of a well-founded fear of persecution based on sexual identity.
49
As these
examples show, exclusion of the knowledges plays out on both individual and
46 Rajaram, 47.
47 Ali, ‘Reframing the Subject. Affective Knowledges in the Urgency of Refuge’,in
Refugees and Knowledge Production: Europe’s Past and Present, eds. Magdalena
Kmak and Heta Björklund (Abingdon, Oxon; New York: Routledge, 2022), 190–
191.
48 Ali, 191.
49 Ali, 168; see also Queering Asylum in Europe.

142 Mobility as a method of legal knowledge production
collective levels. In the following section, I will look at concrete examples of
knowledges generated through the experience of exile and how they can chal-
lenge the dominant narratives about migrants and refugees.
From knowledges about refugees towards communities
of knowledge
Academic narratives
As one of the most famous exile intellectuals, Palestinian American scholar
Edward Said wrote in Reflections on Exile,
[m]odern Western culture is in large part the work of exiles, émigrés,
refugees. In the United States, academic, intellectual, and aesthetic thought
is what it is today because of refugees from fascism, communism, and other
regimes given to the oppression and expulsion of dissidents.
50
I argue that by analysing the role of exile and displacement for the development
of scientific knowledge, we can shift perspective from static, institutionalized
settings of knowledge production to mobile and minoritarian forms of knowl-
edge formed through the experience of movement. As Aslı Vatansever, a dis-
placed scholar from Turkey explains, displacement is an experience creating a
“particularly paradoxical moment for subjectivity, that alters one’s existential
conditions as well as one’s way of viewing the world and the self.”
51
It channels
a “discursive and epistemological breakaway from the conventional modes of
thinking”, and it is also “assumed to be enriching in terms of intellectual
subjectivity”.
52
I have analysed the role of historical figures in the development of scientific
knowledges elsewhere. In particular, I’ve been studying the experiences of legal
scholars displaced from Nazi Germany in the USA.
53
Even though most of these
scholars tend to remain silent about their experiences, some of them have
reflected on and accounted for them, including Louise Holborn whom I have
50 Edward W Said, Reflections on Exile and Other Literary and Cultural Essays
(London: Granta, 2001), 180.
51 Aslı Vatansever, At the Margins of Academia: Exile, Precariousness, and Sub-
jectivity (Leiden: Brill, 2020), 8.
52 Vatansever, At the Margins of Academia, 148. Kmak and Björklund, Refugees and
Knowledge Production: Europe’s Past and Present,1.
53 Magdalena Kmak, ‘The Impact of Exile on Law and Legal Science 1934–1964’,in
Roman Law and The Idea of Europe (Bloomsbury Academic, 2019); Magdalena
Kmak and Mehrnoosh Farzamfar, ‘Personal and Academic Narratives of Exiled and
Displaced Scholars’,in Refugees and Knowledge Production: Europe’s Past and
Present, ed. Magdalena Kmak and Heta Björklund (Abingdon, Oxon; New York:
Routledge, 2022); Kmak, ‘From Law’s Discourse on Refugees to Refugees’ Discourse
on Law’.

Mobility as a method of legal knowledge production 143
already mentioned above, as well as Hannah Arendt or Paul Tillich. Very often,
however, scholars either do not realize the impact of these experiences on their
work or do not reflect on them, remaining mostly silent. For instance, Otto
Kirchheimer a legal scholar and a Marxist lawyer who in the US became a
professor of Political Science at Columbia University has not discussed his
experience at all. He, however, wrote in 1959 a detailed chapter on the defini-
tion of asylum
54
included in his later book Political Justice, where he located
asylum “at the crossroads of national and international law, compassion and
self-interest, raison d’etat and human capacity for shame.”
55
That chapter,
according to Alfons Söllner points to Kirchheimer’sreflection on his own
experiences that have been translated into his writings on asylum.
56
To be sure, it is difficult to assess the impact of mobility on law in the case of
historical figures who do not directly take up the importance of their experiences and
attach them to a particular meaning. As Kaius Tuori analyses the role of the
experience of exile in the work of German-Jewish Roman Law scholar Fritz Schulz,
such a shift under the exilic conditions might be visible in a change of the focus or
the type of research. Coming to such conclusions only on the basis of studying
scholars’ scientific work is not necessarily enough to link experience with research.
As Tuori writes, Schulz’s scholarship may be considered as representing a fairly
straightforward example of scholarly change. For instance, Schulz’searly work was
technical in character, primarily focusing on the legal analysis of texts and their
origins. Starting from his book Principles of Roman Law, however Schulz’s works
includes covert and open political themes, including the fundamental aspects of the
legal system “in ways that can be construed to be prompted by the Nazi takeover of
power and the way in which it influenced the legal system.” Tuori expresses, how-
ever, a doubt whether this is enough to argue for scientific change generated by exile
experience. “As a result, [Schulz’s] work shows what can be described as a textbook
case of the exile process. Or does it?”
57
I find this expression of a doubt a telling
example of the difficulties of studying the impact of the experience of displacement
on developing new knowledge. It is clear, that the experience of exile or displace-
ment does not automatically create the conditions to produce new ideas and
knowledges. It requires certain personal attributes, coupled with certain suitable
legal and socio-economic conditions as well as the need for a person’s engagement
with the changing parameters of their mode of being in the world and the ability to
cope with the loss of their former coordinates in life.
58
Some persons in a refugee
54 Otto Kirchheimer, ‘Asylum’, American Political Science Review 53, no. 4 (December
1959): 985–1016.
55 Kirchheimer, ‘Asylum’, 352
56 I am grateful to Alfons Söllner for this comment during our conversation in Helsinki
in 2018.
57 Tuori, Empire of Law: Nazi Germany, Exile Scholars and the Battle for the Future
of Europe, 75.
58 Aslı Vatansever, At the Margins of Academia: Exile, Precariousness, and Sub-
jectivity (Leiden: Brill, 2020), 148.

144 Mobility as a method of legal knowledge production
situation are able to adopt such perspectives and insist on their presence in the
world,
59
through speaking up, storytelling, “artistic transposition of individual
experiences” and inserting oneself into the world,
60
but others don’t.
However, I believe that such expression of experience through storytelling or
other means, even though methodologically difficult to identify, can provide the
counter-narrative that can be used to displace the dominant discourses on refu-
geeness rooted in victimization, securitization, and the nation-state as such. At
the same time, one should not expect displaced scholars to actually reflect on
their experiences or feel disappointed when such a connection cannot be found. I
have fallen into this trap while visiting the archives of the German and Jewish
Intellectual Émigré Collections at SUNY Albany, which include archival materi-
als from the life and work of inter alia Otto Kirchheimer, Arnold Brecht, and
Reinhardt Bendix. I was very disappointed that the archival materials instead of
profound reflections of their experiences, included to a large extent work-related
correspondence, conference, talk, and dinner invitations, with occasional com-
plaints on the amount of administrative or teaching duties preventing one from
conducting their own research. This is a typical example of the romanticization
of exile and displacement that Aslı Vatansever so warns against in her book.
61
When possible to identify, however, these storytelling and narrative processes,
can become transformative not only for the author but also for the listener, “who
gains access to alternative visions of not only past, but also future.”
62
To be sure, an ongoing interest exists in identifying such narrative processes,
and that can be seen from the development and transformation of exile studies
over the years. Whereas the first generation of works is mostly biographical in
its focus,
63
the second generation of exile studies explores the role of scholars in
the revitalization of existing and creation of new scientific disciplines, such as
political science
64
or international relations.
65
Finally, most recently, one can
59 Hannah Arendt, ‘We Refugees’,inThe Jewish Writings, ed. Jerome Kohn and Ron
H. Feldman (New York: Schocken Books, 2007).
60 Cindy Horst and Odin Lysaker, ‘Miracles in Dark Times: Hannah Arendt and
Refugees as “Vanguard”’, Journal of Refugee Studies 34(1) (2019): 67–84, 72.
61 Vatansever, At the Margins of Academia.
62 Horst and Lysaker, ‘Miracles in Dark Times’, 73.
63 See for instance Laura Fermi, Illustrious Immigrants: The Intellectual Migration
from Europe 1930–1941 (Chicago and London: The University of Chicago Press,
1968).
64 Alfons Söllner, ‘From Public Law to Political Science? The Emigration of German
Scholars after 1933 and Their Influence on the Transformation of a Discipline’,in
Forced Migration and Scientific Change: Émigré German-Speaking Scientists and
Scholars after 1933 (Cambridge: Cambridge University Press, 1996).
‘
65 Renato Camurri, The Exile Experience Reconsidered: A Comparative Perspective in
European Cultural Migration during the Interwar Period’, Transatlantica. Revue
d’études Américaines. American Studies Journal, no. 1 (9 July 2014), https://transatla
ntica.revues.org/6920 (accessed 18.12.2022); Felix Rösch, Émigré Scholars and the
Genesis of International Relations (Houndmills, Basingstoke: Palgrave Macmillan,
2014).

Mobility as a method of legal knowledge production 145
observe a shift of focus from biographical and more passive narratives to ones
bringing forward the agency of the émigrés and the role of this agency for
knowledge production,
66
which I argue contributes to the third generation of
exile studies.
67
This can, for instance, refer to scholars’ direct reflections on
their experiences. At the same time, the lack of such direct reflection does not
preclude these scholars from contributing to new knowledges; for instance,
through more contextualized analysis of their writings.
In one of my articles, I have analysed the writings on the topic of refugee
status by Louise Holborn, Otto Kirchheimer, and Hannah Arendt.
68
In their
written texts, all three authors identify a shift or a paradigm change in the
conceptualization of refugee status and refugee condition that took place during
their lives – from being persecuted for what one does to being persecuted for
what one is.
69
For instance, Kirchheimer writes in his text on asylum:
The Armenian survivor of Turkish massacres, the Russian ‘bourgeois’ of
the 1920’s, the conscript soldier of the anti-Soviet ‘White’ armies, the Eur-
opean Jew in Hitler’s Europe, the Spanish conscript who fought on the
loyalist side in the civil war, the member of an ethnic minority proscribed
in the USSR in World War II – all these exiles ran from the threat of being
penalized for what they were, not for what they had done, were doing or
intended to do. Their appearance gave the word asylum a new connotation
and let the authorities of the countries of refuge to put a different con-
struction upon it.
70
As they further write, due to this shift, the scope of protection that states and
international institutions were able to offer was inadequate for meeting the
needs of great numbers of persons that were displaced during the First and the
Second World Wars.
71
This also generated difficulties in the legal processes of
distinguishing bona fide refugees and those who were not considered political
refugees;
72
thus, leaving many that should actually be included in the definitions
without legal recognition.
73
Because of the lack of protection by their own
66 Tuori, Empire of Law: Nazi Germany, Exile Scholars and the Battle for the Future
of Europe, 11.
67 Kmak and Björklund, Refugees and Knowledge Production: Europe’s Past and Pre-
sent,4.
68 Kmak, ‘From Law’s Discourse on Refugees to Refugees’ Discourse on Law’.
69 Arendt, ‘We Refugees’, 264.
70 Otto Kirchheimer, Political Justice: The Use of Legal Procedure for Political Ends
(Westport: Greenwood Press, 1980), 353–354.
71 Louise W. Holborn, Refugees: A Problem of Our Time. The Work of the United
Nations High Commissioner for Refugees, 1951–1972 (Metuchen, NJ: The Scare-
crow Press, Inc., 1975), xvi.
72 Louise W. Holborn, ‘The Legal Status of Political Refugees, 1920–1938’, The
American Journal of International Law 23, no. 4 (1938): 680–703, 686.
73 Holborn, 687.

146 Mobility as a method of legal knowledge production
states, and without the over-encompassing legal regime that allow for their
protection by other states,
74
displaced refugees were considered as an anomaly
living in no-man’s land
75
or as “legal freaks.”
76
Therefore, as the numbers of
those in exceptional situations or considered an anomaly in the nation-state
system grew to exponential numbers, their required special protection and
security could only be granted by the international humanitarian organization.
77
Arendt, Holborn, and Kirchheimer in their writing also describe a conflict
between humanitarian or moral considerations,
78
and political interests
79
when
providing protection to refugees, which results in the need for constant nego-
tiation between the two. Kirchheimer writing about asylum argues that the
institution is “[s]ituated at the crossroads of national and international law,
compassion and self-interest, raison d’etat and human capacity for shame;”
thus, requiring mediation between these elements.
80
This constant negotiation
between politics and humanitarianism presupposes the limit in the willingness
of states to provide protection, mostly related to a prospective burden refugees
would generate for the receiving country.
81
This, in turn, results in securitiza-
tion, imprisonments, and expulsions,
82
and adds emphasis on control rather
than protection.
83
This brief analysis
84
shows the emergence in the writings of
these scholars of an image of refugees who are in need of humanitarian pro-
tection, yet are marked as suspicious or a security threat, and therefore need to
be controlled. This very much resembles the contemporary narratives on refu-
gees that I have outlined in Chapter 3. Perhaps a careful study of these voices
and discourses early on could have helped to reflect on the consequences of the
emerging refugee regime as the issues related to the refugee protection empha-
sized above, have remained problematic and embedded in contemporary refugee
law and politics.
85
74 Hannah Arendt, The Origins of Totalitarianism (New York: A Harvest Book,
Harcourt Inc., 1985), 297.
75 Claudena Skran and Carla N. Daughtry, ‘The Study of Refugees before “Refugee
Studies”’, Refugee Survey Quarterly 26, no. 3 (2007): 27.
76 Arendt, The Origins of Totalitarianism, 278.
77 Skran and Daughtry, ‘The Study of Refugees before “Refugee Studies”’, 28.
78 Louise W. Holborn, ‘The League of Nations and the Refugee Problem’, The Annals
of the American Academy of Political and Social Science 203 (1939): 124–135, 134.
79 Holborn, ‘The Legal Status of Political Refugees, 1920–1938’, 689; Kirchheimer,
Political Justice: The Use of Legal Procedure for Political Ends, 353.
80 Kirchheimer, Political Justice: The Use of Legal Procedure for Political Ends, 352.
81 Holborn, ‘The Legal Status of Political Refugees, 1920–1938’, 683; Kirchheimer,
Political Justice: The Use of Legal Procedure for Political Ends, 386.
82 Holborn, ‘The Legal Status of Political Refugees, 1920–1938’, 689.
83 Simon Behrman, Law and Asylum: Space, Subject, Resistance (Abingdon, Oxon;
New York, NY: Routledge, 2018).
84 For more in-depth analysis see Kmak, ‘From Law’s Discourse on Refugees to Refu-
gees’ Discourse on Law’.
85 Kmak.

Mobility as a method of legal knowledge production 147
Another take on historicising knowledges is to put together historical and
contemporary experiences that transcend simple comparisons between these
two. To be sure, the conditions of historical and contemporary academic dis-
placements are to some extent similar, but also remain very different as the
current refugee scholars are subject to a “perfect storm of difficult conditions”
both as academics and migrants, which creates for them a uniquely precarious
situation.
86
At the same time, one can identify similarities in the biographies
and in academic narratives despite incomparable situated experiences. In my
other work, I have argued for the benefit of working with both historical and
contemporary narratives as contemporary scholars can often find answers to
questions one would want to ask from historical figures, but could not, due to
silences or lack of relevant biographical and archival materials. On the other
hand, the impact of displacement on the production of academic knowledge in
the case of contemporary scholars could most likely only be seen from the per-
spective of time as in the case of historical figures.
87
The biographies of histor-
ical figures could, for instance, orient the interview questions. At the same time,
the issues that arose from the interviews could serve as an inspiration for
investigating the biographies of the historical figures.
88
For instance in my work
I was able to identify overlapping themes that emerged both from writings by
historical figures and from the interviews, such as experience and conditions in
the country of exile, refuge, or residence, the development of the scholar’s aca-
demic career and scholarly identity in conditions of displacement, and finally
issues related to human rights, justice, and the need to act in response to con-
ditions that have contributed to displacement.
89
Communities of mobile knowledges
To be sure, it is not just academics or intellectuals who are able to generate
new knowledges through their experience of displacement or movement.
Migrants and refugees also produce and share knowledges, including via digital
connectivity. Migration requires continuous decision-making and knowledge
gathering before and during the process of movement. This happens through
the exchange of knowledge and information between people plotting their
mobility trajectories.
90
As Pedro Magalhães and Laura Sumari write
86 Carol Bohmer, ‘Refugee Scholars Then and Now’,in Refugees and Knowledge
Production, by Magdalena Kmak and Heta Björklund, 1st ed. (Abingdon, Oxon:
Routledge, 2022), 128.
87 Kmak and Farzamfar, ‘Personal and Academic Narratives of Exiled and Displaced
Scholars’.
88 Kmak and Farzamfar.
89 Kmak and Farzamfar, 114.
90 Katie Kuschminder, ‘Before Disembarkation: Eritrean and Nigerian Migrants Jour-
neys within Africa’, Journal of Ethnic and Migration Studies 47, no. 14 (26 October
2021): 2360–3275, 3262.

148 Mobility as a method of legal knowledge production
[s]tudying migration provides an important opportunity to examine pro-
cesses of knowledge production precisely because migrants are people who
have moved out of their ‘usual environment’ and have to deal with many
forms of the ‘unknown’ to survive in their everyday lives while in transit
and in new locations.
91
I argue that it is particularly important to include migrant and refugee experi-
ences in studying and researching law as well as in various policy and law-
making processes. This is because persons applying for asylum and recognized
as refugees not only produce and share knowledges of their everyday experi-
ences, but also are themselves experts in the refugee or migration experience.
Therefore, it is of utmost importance to consult this experience when assessing
whether the laws and policies adequately address their claims.
92
To be sure,
employing socio-legal approaches rather than doctrinal ones in studying the
rights of migrants is useful for exploring law as applied in intersectional con-
text, for instance studying the relationship between law, sexuality, and gender
in the refugee status determination procedure.
93
Authors of a study focusing on
experiences of SOGI asylum seekers argue that a solely doctrinal positivist
approach focusing on case law would not have been sufficient to identify pro-
blems, inconsistencies, or even possible good practices in the refugee status
determination procedure in the case of these applicants.
94
Interviews with
asylum seekers at varying stages of their refugee journey and during the refugee
procedure helped authors to identify the shortcomings, biases, or injustices in
the refugee procedure (such as lack of specific procedures for SOGI asylum
seekers, long duration of the refugee status determination process, imbalances
of power, bias, lack of cultural awareness, and poor quality of legal advice, but
also many others) and to formulate suggestions for change.
95
Beyond the expertise of their own refugee experience that can contribute to
identifying injustices in the refugee procedure, migrants and asylum seekers take
part in the creation of what Tekalign Ayalew Mengiste calls “communities of
knowledge,” encompassing the knowledges that emerge through the multi-
faceted, dispersed and fluid translational milieu of migration and mobility. For
Mengiste, “communities of knowledge” means the
diverse and dynamic strategies collectively devised and mobilized by
migrants, their co-travellers, families and friends settled en route and in the
91 Pedro T. Magalhães and Laura Sumari, ‘Methodological Nationalism and Migration
Studies’,in Refugees and Knowledge Production, by Magdalena Kmak and Heta
Björklund, 1st ed. (Abingdon, Oxon: Routledge, 2022), 30.
92 Danisi et al., Queering Asylum in Europe, 25; Ashenden and Hess, Between Utopia
and Realism.
93 Danisi et al., Queering Asylum in Europe.
94 Danisi et al., 24.
95 Danisi et al., 252.

Mobility as a method of legal knowledge production 149
diaspora, and friendly strangers and diverse facilitators to reduce risks in
clandestine journeys and who allow for successful transits, while not dis-
counting the violence and suffering encountered by migrants and refugees
on their paths.
96
One of the examples of such “community of knowledge”that is created across
the travelled distance are so called “mobile commons”–a community of
knowledge that links precarious mobilities with digital transformations,
97
and
as the authors argue, these commons are crucial for the production of social life
across the distance.
98
Since the commons mean natural and cultural resources
that belong to communities or humanity and the ways to govern such resources,
mobile commons are a new look at the nature and the role of these common
resources.
The mobile commons as such exist only to the extent that they are com-
monly produced by all the people in motion who are the only ones who can
expand its content and meanings. This content is neither private, nor
public, neither state-owned nor part of civil society discourse in the tradi-
tional sense of the terms; rather the mobile commons exist to the extent
that people use the trails, tracks, or rights and continue to generate new
ones as they are on the move [authors’emphasis],
99
challenging and subverting the official and unofficial borders. In other words,
mobile commons are praxis that operate at the informal level of the everyday
existence of migrants living on the fringes of society that challenges urban
spaces making them contested and reshaping them according to the contingent
politics of everyday life.
100
To be sure, such reliance on shared knowledges and other’s help is often a
necessity due to the lack of official information or knowledge. One of the
interviewees in the book Queering Asylum in Europe describes how the lack of
any information about the procedure in Italy causes confusion and harm and
undermines asylum seekers’chances in obtaining protection:
We come here the first time, as asylum seekers, we know nothing about the
Italian system or anything. Then, like just I think within a week they gave
us piece of paper to fill with our data and everything about our stories. A
lot of us do not even know what we are writing. Some are still sick, very,
96 Ayalew Mengiste, ‘Refugee Protections from Below’, 63; Magalhães and Sumari,
‘Methodological Nationalism and Migration Studies’,30–31.
97 Trimikliniotis, Parsanoglou, and Tsianos, Mobile Commons, Migrant Digitalities
and the Right to the City, 12.
98 Trimikliniotis, Parsanoglou, and Tsianos, 12.
99 Trimikliniotis, Parsanoglou, and Tsianos, 53.
100 Trimikliniotis, Parsanoglou, and Tsianos, 99.

150 Mobility as a method of legal knowledge production
very sick, they have other people write it for them. Some have other people
advise them, ah don’t write this, write this, and it is not right. They make
blunders, big mistake. (…) Then they submit it, without nobody educating
them about the concept of the form they are filling. (…) You cannot even
get a copy of that form – you have just few days to submit it, and that’s
this. (…) They photostated [photocopied] the form (…) ‘go and write your
story, go and write’ (…) What can you write? (…) Then later, you start
judging the same person by what the person wrote when his or her head
was not in a stable state. It’s not good. They should encourage them and
inform them the minute they get here. Give them time to understand. Let
them ask questions also.
101
Channelling information through the communities of knowledge without an
understanding of the legal provisions, others’ legal status, or changes in the
legislation may also have triggered sharing wrong information. Mervi Leppä-
korpi in her doctoral dissertation studying interactions between irregularized
migrants and their various civil society supporters in Hamburg, Stockholm, and
Helsinki writes:
In interviews as well as during the participant observations, I was con-
stantly confronted with misinformation about the relation between work
and permits. Some of it related to ideas about ‘European law’ or, more
concretely, expectations about harmonized legislation between the coun-
tries of European Union (…). Other important source of misinformation
was other migrant’s experiences in earlier years or in different legal situa-
tions. Misinformation about the possibilities of working was one of the
most difficult ones to correct when people sought advice for their legal
situation. Remarkably, many irregularized individuals were resistant to
information if their expectations about access to the labour market had
been overly optimistic.
102
A lack of understanding of the administrative context of one’s own case when
presenting it to those who have the resources to advance it in relevant public
instances, such as lawyers, might make a significant difference to the future of
the person’s case. For instance, discussing with a lawyer the right to work while
not mentioning other issues such as a serious illness could prevent the person
from regularising their status on the basis of such illness.
103
Similarly, lack of
knowledge on the SOGI identity as a basis of persecution or focusing only on
101 Carmelo Danisi et al., Queering Asylum in Europe: Legal and Social Experiences of
Seeking International Protection on Grounds of Sexual Orientation and Gender
Identity, IMISCOE Research Series (Cham: Springer Nature, 2021), 168.
102 Leppäkorpi, ‘In Search of a Normal Life: An Ethnography of Migrant Irregularity in
Norther Europe’, 134.
103 Leppäkorpi, 216.