Residence of unauthorized immigrants is a stable feature of the Global North’s liberal democracies. This article asks how liberal-democratic policymakers should respond to this phenomenon, assuming both that states have incontrovertible rights and interests to assert control over immigration and that unauthorized residence is nevertheless an entrenched fact. It argues that a set of liberal-democratic commitments gives policymakers strong reason to implement both so-called ‘firewall’ and ‘regularization’ policies, thereby protecting unauthorized immigrants’ basic needs and interests and officially incorporating many of (...) them in society. It then explains that the background imperative of immigration control creates a dilemmatic tension between these policies, as regularization is envisaged alongside the removal of the ineligible, which is in turn hindered by the implementation of firewalls. This creates a dilemma between the pursuit of two policy goals that are both underwritten by the same value commitments. Though it cannot be entirely dissolved, I argue that the best way to mitigate this dilemma is to design regularization policy in a way that leaves only a small number of unauthorized immigrants subject to removal. (shrink)

States cannot legitimately enforce their borders against migrants if dominant conceptions of sovereignty inform enforcement because these conceptions undermine sufficient respect for migrants’ basic human rights. Instead, such conceptions lead states to assert total control over outsiders’ potential cross-border movements to support their in-group’s self-rule. Thus, although legitimacy requires states to prioritize universal respect for basic human rights, sovereign states today generally fail to do so when it comes to border enforcement. I contend that this enforcement could only be rendered (...) legitimate if it was predicated on more desirable conceptions of sovereignty that supported the universal prioritization of basic human rights. Specifically, desirable conceptions would not establish and require absolute state sovereignty over borders as a necessary precondition for true popular self-governance. (shrink)

There is lively debate on the question if states have legitimate authority to enforce the exclusion of (would-be) immigrants. Against common belief, I argue that even non- cosmopolitan liberals have strong reason to be sceptical of much contemporary border authority. To do so, I first establish that for liberals, broadly defined, a state can only hold legitimate authority over persons whose moral equality it is not engaged in undermining. I then reconstruct empirical cases from the sphere of international relations in (...) which what I call ‘colonial norms’ continue to play significant structuring roles. I argue that it is sometimes only by unveiling these colonial norms and the roles they play that we can understand how some states today culpably contribute to undermining the moral equality of persons over whom they will come to claim immigration-related authority. I thus contend that paying attention to colonial norms distinctly enables us to reveal a set of instances in which all liberals should agree that states forfeit legitimate authority over would-be immigrants. (shrink)

Abstract“Freedom” is a fundamental political concept: contestations or endorsements of freedom-conceptions concern the fundamental normative orientation of sociopolitical orders. Focusing on “freedom,” this article argues that the project of bringing about emancipatory sociopolitical orders is both aided by efforts at engineering fundamental political concepts as well as required by such ameliorative ambitions. I first argue that since the absence of ideology is a constituent feature of emancipatory orders, any attempt at bringing about emancipation should leverage genealogical approaches in order to (...) debunk existing ideological freedom-concepts, which can occur only by exposing the discursive functions these have come to serve for the (re-)production of dominant power relations. I then suggest that establishing and sustaining an alternative, ideology-free conception of “freedom” is a steeper task. Ensuring widespread uptake of any ameliorated concept is contingent on effective change in the relevant social environment. Where fundamental political concepts such as “freedom” are concerned, effective intervention in the relevant social environment requires radical sociopolitical change. But if such change can be brought about and enables the widespread uptake of an “improved” freedom-concept, the concept's content comes to reflect changed social facts, thereby stabilizing the particular emancipatory sociopolitical order which has newly arisen. (shrink)

Scholars of international law have been increasingly troubled by states’ vast powers and practices of migrant exclusion. There is no doubt that much of this uneasiness is catalyzed by a keen sense of the demands of a basic liberalism at the international legal order's core. Indeed, the increased construction of border walls,1 the continuously widespread use of deportation as a migration control tool,2 and new digital bordering technologies3 have all come under scrutiny precisely because of the challenges they pose to (...) the notion of supposedly universal entitlements, both substantive and procedural, that often appear disabled or overridden when it comes to the treatment of different sorts of migrants. My goal in this contribution is not to add to such legal critiques, but rather to provide the contours of a broader normative argument to rebuke—or at least complicate—what is often called the state's “right to exclude” all or most would-be immigrants. This right is not just standardly assumed in legal and political practice—indeed, standardly viewed as the linchpin of sovereignty—but has also enjoyed sophisticated defense by liberal political theorists.4 The main goal of my argument is to suggest that anyone with basic liberal inclinations—including political theorists, lawyers, and practitioners of politics—should be able to agree that, under current circumstances, granting states a potent “right to exclude” entails deep tensions with basic moral standards of legitimate authority. This is because the deeply entrenched characteristics and historical background conditions of immigration control today tend structurally to push states to violate the appropriate moral conditions of their legitimate authority to enforce immigration restrictions.5 While moving above and beyond legal argumentation, my hope is that the argument may underscore and give further analytical expression to some of the animating concerns of contemporary legal contestations of states’ exclusive powers and practices. (shrink)

In Justice for People on the Move, Gillian Brock constructs an elaborate normative framework, based on human rights practice, to assess how states must treat international migrants in order to legitimate exclusionary claims to self-determination. In this discussion piece, I argue that this framework cannot always satisfactorily explain when and why it is impermissible for legitimate states to remove irregular migrants from their territory (i.e. deport them). I show that Brock’s intuitions about at least one of her own paradigm cases (...) – the removal of long-settled immigrants whose irregular immigration was tacitly approved at the time – are not accommodated by her own framework. However, Brock also acknowledges that deportation is often harmful to persons and that this is morally problematic. Although this concern with harm is not systematically elaborated in Brock’s discussion, I think it should be. I suggest that a purely harm-based framework is fully able to negotiate Brock’s moral worries about deportation and outline the cornerstones of such a framework, stressing that harm in deportation may count as permissible only if it satisfies the joint desiderata of necessity and proportionality. I conclude by giving a sense of how one of Brock’s paradigm cases – the tacit-approval case – could be assessed within this framework, arguing that such an analysis would likely bolster Brock’s intuitions about this case whilst satisfactorily explaining if and why exactly the deportation practice in question cannot permissibly be pursued by legitimate states. (shrink)

This working paper combines Lukas Schmid’s article “Responding to unauthorized residence: on a dilemma between ‘firewalls’ and ‘regularisations’” with three critical responses as well as a rejoinder by the author. Schmid argues that a set of liberal-democratic commitments gives conscientious policymakers strong reason to implement both so-called ‘firewall’ and ‘regularisation’ policies, thereby protecting unauthorised immigrants’ basic needs and interests and officially incorporating many of them in society. He then explains that the background imperative of immigration control creates a dilemmatic tension (...) between these policies, as regularisation is envisaged alongside the removal of the ineligible, which is in turn hindered by the implementation of firewalls. This creates a dilemma between the pursuit of two policy goals that are both underwritten by the same value commitments. Schmid concludes that the best way to mitigate this dilemma is to design regularisation policy in a way that leaves only a small number of unauthorised immigrants subject to removal. Antje Ellermann’s response reflects critically on Schmid’s understanding of firewalls, arguing that there is good reason to think that the presence of firewalls does not hinder the implementation of removals of unauthorised immigrants who are ineligible for regularisation. She concludes that, contrary to Schmid’s argument, there is no true ethical dilemma between firewall and regularisation policy. Adam Omar Hosein’s contribution argues that the tensions Schmid discusses arise only because of his adoption of widely shared assumptions about the proper basis for regularisation policies. He suggests they can be avoided by adopting a superior justification for regularisations: the ‘autonomy argument.’ In the last response, Cecilia Menjívar reflects on some constraints conscientious policymakers may face when dealing with ethically dilemmatic choices, such as a policy landscape of government agencies with conflicting goals as well as foreign policy and international obligations, all of which are rooted in anti-immigrant backlash and racism around the globe. The working paper concludes with a rejoinder, in which Schmid discusses the contributors’ key points, outlines agreements and disagreements, and explores the bigger picture sketched by the working paper’s discussions. (shrink)

In this review essay, I discuss two recent works in refugee and migration ethics, Serena Parekh’s No Refuge: Ethics and the Global Refugee Crisis and Amy Reed-Sandoval’s Socially Undocumented: Identity and Immigration Justice. I find that their methodological ambitions overlap significantly and that their arguments represent welcome and largely successful examinations of generally neglected issues. I also explain how both approaches could fruitfully learn from each other, and argue that they lay pioneering groundwork for future work to continue the analysis (...) of only nascent modes and areas of inquiry. (shrink)