Chapter three: irregular migrants

Chapter three examines the problem of illegal migration in our time. In the second section it

acknowledges that all scholars agree that such a status is not acceptable, but it also sidesteps the never- ending debate in normative theory between those concerned with individuals’ lack of rights and those worried about the consequence such a status could have on the liberal-democratic outlook of our present-day polities. The chapter bypasses this quarrel by considering a third alternative, which tries to disentangle the status of irregular individuals from the rights they should enjoy as human beings. In this

sense, one author proposes a ‘firewall’ between immigration authorities and agencies responsible with the protection of specific rights which are normally not related with the immigration status of an individual (Carens 2008a). Another scholar proposes the concept of ‘ethical territoriality’, according to which the simple presence on a territory should trigger legal recognition of a large area of rights, irrespective of the legal status of that presence (Bosniak 2006). This latter proposal is very close to the idea of residence-based citizenship, since territoriality-based rights are doing a better job in annihilating caste-like distinctions than status-based rights. The problem with these two normative accounts is that

neither goes as far as requesting and justifying full citizenship rights for resident irregular migrants,

although this is the right solution because of the slippery slope character of their argument. On the one hand, disconnecting civil and social rights from immigration status does not solve the problem of illegal migration: irregular migrants will simply remain irregular even if they can access some rights; on the other hand, if both accounts are nevertheless compelled to extend voting rights to irregular migrants, then citizenship status becomes irrelevant. I argue that detaching enjoyment of rights from immigration and citizenship status cannot be a good way to deal with illegal migration.

In the third section I turn to the old quarrel between supporters of deportation and those of regularisation. This disagreement underlines two special features of irregular migrants: on the one hand, they are illegally present in the territory (even if their illegal presence is usually sanctioned by the host state); on the other hand, they settle in the country of immigration. The problem is that these two features pull in opposite directions: while illegality triggers deportation, settlement requires

regularisation. However, as I argue in section four, deportation cannot be taken into account since there are both empirical obstacles and normative objections against it: I claim that all four main clusters of reasons which defend legitimate exclusion (public order, cultural disruption, protection of the welfare state, and community’s right to self-determination) are morally indefensible when applied to irregular residents.

But if it is the case both that irregulars become in time social members, and exclusion is not available from an ethical point of view, then regularisation seems to be the only solution. Against previous and current forms of regularisation (individual legalisation or collective amnesties), I claim in the fifth section that the only moral requirement for regularisation must be residence in the territory, and state policies requesting other conditions cannot be morally defended. As to what constitutes residence, I argue against both the ‘long term residence’ condition and the idea of a collective rolling amnesty (based on the ‘touch the territory and you’re in’ view) – and finally I support a shorter term of residence. I do not suggest a specific policy regarding the number of years required to live in the

country before accessing legal status; however, since chapter seven will show that liberal countries require three years of residence before an individual can qualify for naturalisation, then for obvious reasons a legal status should be obtained even quicker (I support a period of less than one year of residence).

In the second part of the chapter I discuss the problem of the voting rights irregular migrants should have in both home and host states. I emphasise in the sixth section the dilemma the home state may have between enfranchising its citizens-with-illegal-status-abroad and helping host state’s authorities to fight illegal migration: I offer the example of a recent international conflict between Romania and France on the problem of Roma migrants, perceived as ‘European citizens with illegal status’. Section seven claims that voting rights in the host state must be accessed by irregular migrants only after regularisation: this is not as obvious as it may seem, since in developing Asian countries (because of conditions regarding ‘networks of complicity’ and ‘blurred membership’) there are many situations when irregulars vote, and by voting they access documents which are afterwards used in order to legalise their stay. Moreover, both home states and host states are using irregular migrants in order to accomplish their own political goals such as claiming territories under foreign administration or implementing policies of ethnic cleansing.

Section eight concludes by claiming that irregular migrants should be regularised according to a

short-term residence criterion and afterwards they should be set on the path towards becoming full citizens: a status of permanent residence without citizenship cannot be morally defended from a residence-based theory of citizenship, since it transforms the state of residence into a ‘caste-like society’. Resident irregular migrants must receive quickly a legal status and then they must be set on the road to full citizenship, even if in their case this road can be longer as a penalty for trespassing immigration laws.