The Terrorism Bar to Asylum in Australia, Canada, the United Kingdom, and the United States: Transporting Best Practices

The contemporary threat of terrorism that the Western world faces is primarily from so-called “aliens.” As such, the laws that are meant to combat terrorism necessarily involve the regulation of the admission and exclusion of aliens. This type of regulation is traditionally the purview of immigration law. Although the link between national security and immigration is by no means contemporary, the existing level of intersection between antiterrorism laws and immigration is essentially a post- 9/11 phenomenon.\nThe reason for this phenomenon is that the 9/11 attacks were planned and executed by aliens. Although there has not been a terrorist attack on U.S. soil since 9/11, Europe and other parts of the world have since suffered several prominent attacks by persons viewed as aliens, which has fueled the characterization of alienage as the most essential ingredient of terrorism. After the 9/11 attacks, lawmakers from Australia, Canada, the United Kingdom, and the United States faced three possible alternatives for regulating the admission and exclusion of aliens: two extreme positions and a moderate middle option. The position at one extreme was a total ban on the admission of aliens. None of these jurisdictions opted for this choice because it would have resulted in a total cessation in world trade. The position at the other extreme was to continue the usual practice of alien admission as though the 9/11 attacks never occurred. Again, none of the jurisdictions in this study exercised that option, mainly because it would almost certainly have jeopardized their security. Instead, they all opted for some compromise of the two extremes: admitting noncitizen foreign nationals as needed by attempting to exclude aliens with terrorist ties.To confront the new and real threat posed by terrorism, each of these four jurisdictions amended their immigration laws and set up new procedures. In the process, however, their substantive laws and procedures largely neglected, to varying degrees, fundamental notions of proportionality and justice.\nThis Article attempts to measure the degree of deviation from the notions of proportionality and substantial fairness by critically examining the approaches taken by the four jurisdictions, and then advances a model approach that strikes the appropriate balance between fairness, increasing the administrability of immigration laws, maximizing the benefits of cross-border mobility, and minimizing the exposure to risks of future terrorist attacks.

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