This chapter considers non-EU nationals. The Treaty on the Functioning of the European Union provides common policies on borders, immigration and international protection, albeit that there are special regimes for Denmark and Ireland. The Schengen Borders Code governs the treatment of non-EU nationals at external borders. However, it is supplanted for many non-EU nationals by out-of-area border controls such as visa policy, carrier liability regimes and interception of non-EU nationals out at sea. Immigration policy requires States to deport non-EU nationals who are irregularly present in the Union unless there are strong compassionate grounds. EU law grants significant social rights to two types of non-EU national and their families: the worker resident and the long-term resident. Those seeking international protection can make only one application in the EU, which, usually, has to be in the State where they first enter the EU. They have a right to remain within the State pending consideration of their application. During this time, they must be provided with housing, food, healthcare and education for minors. These benefits are sparse and contingent on the applicant complying with reporting and accommodation requirements.

Volume 2 of The Cambridge History of Global Migrations presents an authoritative overview of the various continuities and changes in migration and globalization from the 1800s to the present day. Despite revolutionary changes in communication technologies, the growing accessibility of long-distance travel, and globalization across major economies, the rise of nation-states empowered immigration regulation and bureaucratic capacities for enforcement that curtailed migration. One major theme worldwide across the post-1800 centuries was the differentiation between “skilled” and “unskilled” workers, often considered through a racialized lens; it emerged as the primary divide between greater rights of immigration and citizenship for the former, and confinement to temporary or unauthorized migrant status for the latter. Through thirty-one chapters, this volume further evaluates the long global history of migration; and it shows that despite the increased disciplinary systems, the primacy of migration remains and continues to shape political, economic, and social landscapes around the world.

Chapter 4 focuses on protection from refuge claims made in the European context. It examines cases in which refugees use human rights law to challenge a European externalisation practice or request or resist a transfer made pursuant to the European Union’s Dublin System. Such claims are made before the European Court of Human Rights or domestic adjudicative decision-making bodies under the European Convention of Human Rights. They are also made before United Nations treaty bodies using international human rights law. I argue that in initial and early European protection from refuge claims, decision-makers identified common aspects of refugeehood and used human rights to engage with the functions and nature of refuge. There was an understanding that refuge is a remedy that must address present, future and past vicissitudes of displacement but decision-makers now search for the ‘good’ or ‘peculiarly vulnerable’ refugee. This has resulted in decision-makers approaching refuge as a scarce commodity and one stripped down to the barest minimum of protections. In searching for the exceptional refugee, most decision-makers approach questions of gender, age and disability in a nominal manner.

In Chapter 5, I examine cases in which refugees directly challenge regional containment instruments. This has occurred in North America (a safe third-country agreement between the US and Canada), Asia-Pacific (offshore processing agreements between Australia and Malaysia, Australia and Papua New Guinea and Australia and Nauru), Europe (the Dublin System and a refugee swap agreement between Europe and Turkey) and Libya (an externalisation agreement between Libya and Italy). I examine the ways decision-makers manoeuvre juridical borders in constructing ideas of refuge and determining the legality of states’ attempts to prevent refugees crossing international borders. I observe that when courts consider the significance of refugeehood and expand their juridical borders, they set high thresholds for refuge and characterise it as a duty owed by states. However, in most cases courts ignore the salience of refugee status and retract their juridical borders. This means that there is no minimum standard of refuge set and refuge morphs from an obligation to a discretion. Refugees become trapped in the resisted place of refuge, unable to continue their journey except in extraordinary circumstances. What is considered exceptional is highly gendered with the narrow frameworks developed sidelining experiences of male and also many female refugees.