This article critiques policies of deportation and deportability – a technology emanating from three seemingly conflicting rationalities: states’ obligations under international human rights regimes, capitalism’s need to facilitate the movement of labour, and the need to reaffirm state sovereignty. After outlining the concept of deportability, we argue that although justified by state actors as an integral part of asylum and immigration policies, deportability epitomizes the paradox of immigration regimes at a point of crisis. We use Israel and Ireland as case studies to illustrate that migrant deportability circumvents human rights and domestic legislation that hinder the power of the state to deport unwanted migrants. Paradoxically, in both, policies that engender the deportability of asylum seekers are a response to their undeportability. Despite their differences, Israel and Ireland are unusual immigration destinations and quintessential diaspora nations, whose histories of dispersal configure Jewishness and Irishness in ethno-racially rigid yet spatially fluid terms, as illustrated by their citizenship regimes.
When an individual signs a contract for voluntary repatriation through a private or public body, there may be a need to draw upon principles of contract law and to test contracts for unconscionability. In the case of asylum seekers and refugees, there may be procedural unconscionability when consent is only the result of fear of deportation or imprisonment, and substantive unconscionability when conditions after return include no access to basic necessities or persecution. At the same time, many asylum seekers and refugees do wish to return, despite conditions in the country of origin or because of conditions in the host country. Ethical issues regarding consent are therefore central. Yet, it is unclear how one would ensure consent under such conditions. While it may be possible to apply principles of paternalism and hypothetical consent in such cases, this may undermine the rights of those who wish to repatriate, and remove an option they otherwise would not have.
This article argues that Parfit’s Principle of Consent (CP) and Rights Principle (RP) may address these concerns and applies these principles to test for the unconscionability of two policies of repatriation of refugees and failed asylum seekers in Israel back to countries in Africa between 2009 and 2013. One policy was implemented by an NGO that repatriated failed asylum seekers to countries deemed safe, although returnees had no legal status to stay in Israel and were therefore at risk of deportation. A second NGO returned individuals to South Sudan, even though this was considered dangerous, but only returned South Sudanese who had the legal status to stay in Israel, as this was considered criteria for true voluntariness in the decision to return. By attempting to apply CP and RP in a test for unconscionability, this article addresses both the ethical dilemmas of repatriation of failed asylum seekers and refugees, as well as possible ways in which contracts, more generally, can be tested for unconscionability.