While accepting Carens's view that irregular migrants can rightfully claim from the state protection of human rights, Miller disagrees that such migrants can claim rights of citizenship.

Both the USA and Europe limit access to care by undocumented immigrants. In the debate over what level of access to confer to IMs, there are various public policy rationales operating either explicitly, or below the surface, ranging from minimalist humanitarianism to full cosmopolitan equality, with several intermediate positions between these two poles. This article informs the international debate by providing a conceptual mapping of these underlying policy rationales. Each position is based on different lines of reasoning or bodies of (...) evidence, and each leads to somewhat different conclusions about the extent to which IMs should have access to different types of health care. It is unlikely that broad consensus will be achieved in this ongoing debate. However, by articulating the ethical, legal, pragmatic and conceptual reasons to support or oppose various positions, we hope to help determine where in the landscape of reasoned argument various positions lie, and how each position might be best supported or refuted. In particular, we see in this debate an illustration of Michael Walzer’s classic analysis of competing spheres of justice. Various positions depend to a considerable extent on whether their advocates approach this issue from the health policy sphere rather than the sphere of immigration policy, or whether they attempt to blend the two spheres. (shrink)

Irregular migrants are morally entitled to a wide range of legal rights, including basic human and civil rights. Therefore, states ought to create a firewall between those charged with protecting and enforcing these rights and those charged with enforcing immigration laws.

The Ethics of Immigration is a wonderfully comprehensive and insightful journey through all the major contemporary ethical issues concerning immigration. Through this outstandingly well-crafted work, Carens builds a compelling case for many important positions on how we should treat migrants. Nevertheless, I believe there are some tensions in his arguments that could do with more analysis. I present some of these issues in this article. These include some important problems with arguments for the right to education for children of (...) irregular migrants and those concerning admission, his general position on refugees, and his views about what is required in order to treat temporary workers fairly. (shrink)

The focus of this article is on representations of irregular migration in a Scandinavian context and how irregular migrants are constructed as a target group. A common feature in many European states is the difficult attempt to navigate between an urge for control and respecting, upholding and promoting humanitarian aspects of migration management. Legitimizing policies therefore become extremely important as governments have to appease national voters to remain in power and have to respect European regulations and international (...) conventions. Doing so raises questions of social, political and economic rights, of moral obligations, of sovereignty, and of equity, as well as of how to define target groups and legal and categorical statuses into the debates. Having a backdrop in the theoretical framework of Carol Bacchi, Anne Schneider and Helen Ingram and Giorgio Agamben, this article looks at how policy problematizations and constructions of target populations guide and legitimize particular policy approaches and may end up marginalizing and excluding groups in society and ultimately become a challenge for democracy.Dansk abstract: Legitimering af politik: Hvordan politiske tilgange til irregulære indvandrere formuleres og legitimeres i SkandinavienFokus i denne artikel er på repræsentationer af irregulær migration i en skandinavisk kontekst og hvordan illegale indvandrere er konstrueret som målgruppe. Et fælles træk i mange vesteuropæiske nationalstater er det svære forsøg på at navigere mellem kontrol og samtidig respektere, forsvare og fremme humanitære aspekter af migrationsstyringen. At legitimere den givne politik er derfor blevet særdeles vigtigt fordi regeringerne er nødt til at formilde de nationale indvandringsskeptiske vælgere for at forblive ved magten og er nødsaget til at respektere europæiske regler og internationale konventioner. Dette italesætter en diskussion om sociale, politiske og økonomiske rettigheder, af moralske forpligtelser, af suverænitet, af at definere målgrupper og juridiske statuskategorier i debatterne. Artiklen har baggrund i en teoretisk ramme som er udstukket af Carol Bacchi, Anne Schneider, Helen Ingram og Giorgio Agamben. Artiklen ser på, hvordan politiske problematiseringer og konstruktioner af målgrupper vejleder og legitimerer bestemte politiske strategier og kan ende med at marginalisere og udelukke grupper i samfundet og i sidste ende blive en udfordring for demokratiske principper som sådan. (shrink)

I reinterpret the experiences and perceptions of child migrants through the lens of racialization and White Supremacy by advancing work by Cheryl Harris (1993) and Lisa Guenther (2019) on the critical phenomenology of “Whiteness as Property” (WaP) and the protection of “White Space.” WaP is “the collective investment in state violence” to protect the economic, territorial, and legal privileges of Whiteness, while White Space describes its two dimensions: “enclosure and territorial expansion” (Guenther 2019, 202). I build on this foundation (...) by examining the way WaP regulates sociogenic3 and emotive states in order to protect its accrued resources, resulting in an “economy” of racial identity where ownership produces and is produced by particular societal structures and relationships. I use these concepts to understand the framework that willfully misinterprets racialized children. I establish “the Child” as a sociogenic concept and symbol of national futurity and universalism, and therefore of the futurity and universalism of Whiteness; reiterating and interrogating the inconsistency that many immigration and child activists point to, that there is no such thing as an “illegal” or racialized child. Thus, the ICM either loses the privileges and protections afforded to children or must don the White Mask through a performance of victimhood. Through this framework, I undertake an examination of the ICMs as portrayed in the legal process using tools from legal sensorial studies and critical phenomenology, demonstrating the sociogenic shifts that occur for the ICM and how these shifts work to protect WaP. (shrink)

Este artículo reseña: Kevin Fredy HINTERBERGER, Regularisations of Irregularly Staying Migrants in the EU.A comparative Legal Analysis of Austria, Germany and Spain, Hart Publishing/Nomos, Baden-Baden (Germany), 2023, 398 pp.

This paper makes the case for amnesty of irregular migrants by reflecting on the conditions under which a wrong that is done in the past can be considered superseded. It explores the relation between historical injustice and irregular migration and suggests that we should hold states to the same stringent standards of compliance with just norms that they apply to the assessment of the moral conduct of individual migrants. It concludes that those standards ought to orient (...) migrants and citizens’ moral assessment of how their states handle questions of irregular migration and to inform political initiatives compatible with these moral assessments. (shrink)

This article claims that the study of irregular migration may be a strategic research material for the development of an adequate understanding of contemporary society. The field, however, suffers not only from a lack of reliable empirical data, but also from endemic undertheorizing. The article shows how the attempt to develop an understanding of irregular migration from within a general theory of modern society has positive consequences both for the clarification of the problems and for the design of (...) research programs able to deal adequately with the phenomena. Particularly, it is argued that a theory of modern society centered on its form of differentiation may help to clarify both the political dimension of contemporary international mobility, the variety of irregular statuses existing in the foreign population of receiving countries, and the condition of inclusion and exclusion of irregular migrants. (shrink)

This article argues that, far from being a merely defensive act of individual protest, civil disobedience is a much more radical political practice. It is transformative in that it aims at the politicization of questions that are excluded from the political domain and at reconfiguring public space and existing institutions, often in comprehensive ways. Focusing on the reconstitution of the political community also allows us to reconceptualize constituent power. Rather than portraying it as a quasi-mythical force erupting only in extraordinary (...) moments, constituent power can be conceptualized as a dynamic situated within established orders, transgressing their logic and reconfiguring them from within. Civil disobedience as a transformative and potentially comprehensive practice aimed at reconstituting the political order can then be seen as an internal driving force keeping this dialectic in play. A concrete example can be found in protests and border struggles by irregularized migrants. They show how unexp... (shrink)

Carens's discussion of the work-related rights of irregular migrants fails to consider the differentiated employment rights of legal temporary migrants, permanent residents, and citizens.

This article begins to undertake a human rights analysis of the increasing number of migrants who die annually while trying to cross the borders of Europe in an irregular manner. Over the past 20 years, border policies increasingly focus on border management instead of on classical border control. On the basis of existing data, it seems plausible to assume that the increasing migrant mortality is an unintended side-effect of this shift from control to management. The article argues that (...) it is possible to collect data, which are more reliable than those presently available, and presents data from a pilot project carried out on Sicily in November 2011. Presuming better data can be collected; two diverging human rights approaches are developed – a conventional approach holding that European states are not accountable under human rights law for these side-effects and a functional approach holding that human rights law does impose obligations on European states in this context. On all four doctrinal issues which are relevant to the problem , these diverging approaches lead to diverging doctrinal positions. A choice between the two approaches implies not only legal but also moral, ethical, and political choices. (shrink)

Desde finales de los años 1990, Libia ha experimentado una fase de crecimiento económico muy rápida y se ha convertido, gradualmente, en destino privilegiado de importantes flujos migratorios internacionales procedentes de otros países árabes, de varios países africanos al sur del Sahara e, incluso, de países asiáticos, como Bangladesh, India y China. Contrariando la visión de Libia como un país de tránsito, la realidad es que muchas personas migrantes se quedan en el país. Sin embargo, el espacio libio ha representado (...) en las últimas tres décadas un auténtico laboratorio para las políticas migratorias aplicadas en la relación entre Libia y los países europeos, en primer lugar, Italia. En los 90 y en la primera década del siglo XXI, Libia se caracterizó por dos tendencias opuestas: por un lado, las políticas del régimen de Gadafi encaminadas a abrir el país a la importación de mano de obra barata del África subsahariana y los países árabes; y por otro, las políticas de contención aplicadas por Italia para detener los flujos migratorios irregulares a través del Mediterráneo, que eran relativamente pequeños en comparación con el número total de migrantes en Libia. Este artículo trata de analizar la génesis y el desarrollo de las políticas de contención de la inmigración, centrándose especialmente en las relaciones entre Italia y Libia, analizando sus efectos a mediano plazo y debatiendo cómo estas políticas no solo han ido en detrimento de los derechos de las personas migrantes, sino que también han sido la premisa para su explotación económica y marginación social en Libia e Italia. (shrink)

The article explores Chinese rural migrants’ perspective on work and their relations with each other and with the Chinese state by drawing upon the ethnographical study of a group of rural home renovators in Beijing in the 1990s. The rural renovators were dubbed “guerrilla” workers because of their physical mobility, irregular employment, and unregistered status. After considering the novelty of guerrilla workfare in China, the article demonstrates the bifurcation of migrants’ social networks along the lines of work (...) and everyday association, locates the politics of worker-state interaction at the place of their everyday living, and explores their understanding of work that is remarkably devoid of nostalgia for state socialism. (shrink)

Joseph Carens in his 2013 book Ethics of Immigration argues we should not criminalize undocumented migrants. Instead, we should view them as irregular immigrants who are entitled to some general human rights. This article focuses on Caren's discussion of criminalization in light of recent scholarship by John Marquez and Natalie Cisneros pertaining to the Latina/o border death toll, generalized violence, and discourses on undocumented pregnant migrante females as multiplying rats and anchor babies. This article argues that simply relying (...) on a democratic state model to understand the realities of border militarization is not sufficient because it does not perform some of the explanatory functions performed by other non-ideal theories. By synthesizing the views of Cisneros and Marquez, this article distinguishs thick and thin senses of excessive border enforcement and outlines a notion of the racial/sexual state of expendability as a way of making better sense of these violent realities. (shrink)

In March 2020, the Portuguese Government issued a remarkable regulation by which irregular migrants who had previously started the regularization procedure were temporarily regularized and thus allowed full access to all social benefits, including healthcare. The Portuguese constitutional and legal framework is particularly generous regarding the right to healthcare to irregular migrants. Nevertheless, until now, several practical barriers prevented full access to healthcare services provided by the national health service, even in situations in which it was (...) legally granted. This decision is not only remarkable in light of the fulfilling of migrants’ rights to health, as imposed by international commitments assumed by, but also in view of the fight against COVID-19. The decision is grounded both on human rights and in public health reasons. The paper is divided in two main parts. In the first one, it analyzes national State obligations with regard to healthcare provision to migrants in irregular situation. In the second part, it analyzes the Portuguese solution, using this case study to discuss the possible mechanisms to comply with such obligations. (shrink)

A partir de los años 90, la expansión del capitalismo y la globalización ubicaron a las fronteras como espacios privilegiados para el intercambio de bienes, servicios y personas. Paralelamente, y en consecuencia, también se convirtieron en el lugar de movimiento de aquellos actos considerados como delitos y de aquellas personas consideradas como criminales. En este marco, aparecerán las llamadas nuevas amenazas a la seguridad, que ya no se circunscriben a una ideología o territorio determinado, sino que tienen múltiples (des)localizaciones. Los (...) nuevos riesgos serán el terrorismo, el narcotráfico, la trata de personas y los migrantes, en sus diversos procesos de movilidad y asociados directamente al terrorismo. En este artículo, propongo entonces analizar los marcos internacionales y regionales para identificar narrativas y actores, internacionales y regionales, involucrados en el proceso de (in)securitización de la migración, a través del cual esta aparece dentro del espectro de las nuevas amenazas, principalmente aquella catalogada como irregular. A partir del análisis de documentos, intentaré hacer un aporte en relación a la construcción del sujeto terrorista en el Cono Sur, identificando cómo la migración se convierte también en un posible vector del riesgo terrorista a través de la figura del asilo y el refugio —migración forzada. (shrink)

Ser migrante en situación administrativa irregular implica no ser considerada/o ciudadana/o, no tener derecho a tener derechos. Si además estás ocupado en alguna forma de economía informal mediante una actividad no reconocida tampoco puedes acceder a la ciudadanía a través del trabajo. Esta es la realidad las trabajadoras sexuales migrantes en España quienes sufren múltiples discriminaciones derivadas de la intersección entre las políticas de intervención abolicionistas y la política migratoria europea. Desde la epistemología feminista y la perspectiva de los (...) derechos humanos, se recogen en este trabajo una aproximación al estatuto jurídico de estas mujeres desde sus experiencias y sus reclamaciones. (shrink)

Scholars have identified crimmigration – or the criminalization of “irregular” migration in law – as a key issue affecting migrant access to justice in contemporary immigrant-receiving societies. Yet the gendered and racialized implications of crimmigration for diverse migrant populations remains underdeveloped in this literature. This study advances a feminist intersectional approach to crimmigration and migrant justice in Canada. I add to recent research showing how punitive immigration controls disproportionately affect racialized men from the global south, constituting what Golash-Boza and (...) Hondagneu-Sotelo have called a “gendered racial removal program”. In my study, I shift analytical attention to consider the effects of the contemporary crimmigration system on migrant women survivors of gender-based violence. While such cases constitute a small sub-group within a larger population of migrants in detention, nevertheless scholarly attention to this group can expose the multiple axes along which state power is enacted – an analytical strategy that foundational scholars like Crenshaw used to theorize “structural intersectionality” in the US. In focusing on crimmigration in the Canadian context, I draw attention to the growing nexus between migration, security, and gender-based violence that has emerged alongside other processes of crimmigration. I then provide a case analysis of the 2013 death while in custody of Lucía Dominga Vega Jiménez, an “undocumented” migrant woman from Mexico. My analysis illustrates how migrant women’s strategies to survive gender-based violence are re-cast as grounds for their detention and removal, constituting what I argue is a criminalization of survivorship.The research overall demonstrates the centrality of gendered and racialized structural violence in crimmigration processes by challenging more universalist approaches to migrant justice. (shrink)

El presente artículo ahonda en la vulnerabilidad de las y los migrantes en México, ya sean en tránsito o de destino, haciendo énfasis en la falta de políticas públicas al respecto, las cuales si las hay, no contemplan la perspectiva de género, categoría de análisis imprescindible. La llamada “feminización de las migraciones” está aumentando, adquiriendo especial importancia en la Frontera Sur. La violación sistemática de los derechos humanos hacia las mujeres migrantes y su situación de indefensión, hace que sean objeto (...) de vejaciones que ni si quiera pueden denunciar por su condición irregular, así como por sus factores sociales y culturales (género, clase, etnia…), lo que les hace estar desprovistas de los recursos necesarios de empoderamiento y acción. Se analiza la desprotección de las migrantes centroamericanas en Chiapas así como los Convenios nacionales e internacionales en defensa de sus derechos, acabando el artículo con propuestas específicas, relativas a las políticas públicas para el caso estudiado. (shrink)

Can state sovereignty justify privileged receiving countries exercising authority over non‐members in a third country to safeguard their own interests? Under the current migration governance of the EU, state sovereignty is manifested in migrant interdiction, interception and detention policies employed to prevent unauthorized migrants from reaching the EU, and even from attempting to embark on cross‐Mediterranean journeys. While reinforcement of the Schengen region's external borders is a key aim of the EU's internal migration politics, collaboration with third countries regarding (...) migration control has, in the last decade, become a key feature of its external migration policy. In close collaboration with third countries, the EU has managed to curb the outflux of migrants from transit and sending countries. In effect, irregular migrants are prevented from exiting as well as from entering. This article explores the justifiability of such practices, by questioning commonly invoked models of justification such as the sovereignty “model”, with a special focus on partnership agreements regarding migration control between the EU and Libya. (shrink)

Family ties play a particular and distinctive role in immigration policy. Essentially every country allows ‘family-based immigration’ of some sorts, and family ties may have significant importance in many other areas of immigration policy as well, grounding ‘derivative’ rights to asylum, providing access to citizenship and other benefits at accelerated rates, and serving as a shield from the danger of removal or deportation. Furthermore, status as a child may provide certain benefits to irregular migrants or others without proper (...) immigration standing that is not available to adults. Despite the fact that these benefits are extremely widespread, the justification for them remains less than fully clear, and the extent of the benefits required by considerations of justice (as opposed to expediency or other policy considerations) is debated. While essentially all states recognize at least some of these rights, a significant number of them wish to reduce, rescind, or place significant conditions on them. The role of the family in immigration policy, then, stands in need of further clarification. In this paper I attempt to provide the needed clarification and justification. I discuss first questions about family unification or formation, focusing in particular on how broad a right must be provided by states wishing to have a just immigration policy, and on whether this right violates norms of liberal neutrality. I then discuss the family in relation to refugee and asylum policy, considering both when family ties should be given weight in refugee protection decision and when harm to a family member should, on its own, be able to be grounds for applying for refugee protection. I turn next to the question of when, and to what extent, family ties should be able to serve as a “shield” to removal or deportation, and finish with a discussion of the special rights of and obligations to children in immigration settings. (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)

In December 2007 it was revealed that the British government is considering the exclusion of certain groups of migrants—those considered to be present “illegally”—from primary health care provided by the National Health Service. At present, practitioners have discretion to accept any individual for NHS treatment regardless of their status. A joint Home Office and Department of Health review is examining this access for foreign nationals, and the likely outcome is the restriction of access to irregular migrants, which (...) would, according to the Institute of Public Policy Research, affect around 390,000 people. In 2004 such groups were excluded from NHS secondary care, most controversially from treatment for HIV, and so the present proposal would bar them from all but emergency health treatment. (shrink)

Right-wing parties and governments in Europe have recently expressed greater hostility towards cultural pluralism, at times officially denunciating multiculturalism, and calling for the closure of borders and denial of rights to non-European nationals. Within this context, this article argues for rethinking Europe through radically transgressive and transnational understandings of cosmopolitanism as articulated by growing transnational populations within Europe such as immigrants, refugees, and irregular migrants. Transgressive forms of cosmopolitanism disrupt European notions of borders and identities in ways that (...) challenge both liberal multiculturalism and assimilationist positions. This article explores the limits of traditional cosmopolitan thinking while offering a vision of cosmopolitanism based on everyday negotiations with cultural differences, explained using two illustrative examples or snapshots. (shrink)

In this paper, I engage with the radical critique of human rights moralism. Radical critics argue that: human rights are myopic ; human rights are demobilising ; human rights are paternalistic ; and human rights are monopolistic. I argue that critics offer important insights into the limits of human rights as a language of social justice. However, critics err insofar as they imply that human rights are irredeemably corrupted and they under-estimate the subversive potential of the moral ideas that underpin (...) the discourse. Building on the idea of human rights as claims, I set out the politicising features of human rights as they are deployed in a practical context of disagreement, conflict, and imbalances of power. I illustrate this discussion with reference to the contemporary struggles of irregular migrants. (shrink)

The Trafficking Victims Protection Act legislation has established the US as a global humanitarian leader on the issue of human trafficking. Through the use of formulaic victim narratives, appeals to masculinist protection, and invocations of slave abolitionism, legislators frame the law as a work of compassion and protection of migrant people. On the other hand, legislators often take a suspicious and unsympathetic approach to irregular migrants. This article describes the humanitarian posture adopted by the US in relation to (...) anti-trafficking, contrasting it with an anti-immigration sentiment, evidenced in two attempts to limit or rescind the benefits of anti-trafficking legislation for migrants. When considered together the humanitarian and anti-immigration focus of anti-trafficking law and policy make for an internally inconsistent approach to tackling trafficking. (shrink)

The paper examines the migration policy regime in Thailand using a human security lens. It suggests that insecurities experienced by migrants are partly caused or exacerbated by a migration policy regime, consisting of migration laws and regulations and non-migration related policies and programs, that pushes migrants into irregular forms of mobility and insecure employment options. These effects are worse for women migrants who have fewer resources to access legal channels while they are relegated to insecure employment (...) in the reproductive or informal sectors. Using a gender and human security analysis, therefore, reveals how the migration policy regime, often informed by a restrictive national security approach, can clash with the human security needs of migrants by creating a large pool of unprotected irregular migrants with women occupying the most vulnerable forms of employment. In conclusion, it is suggested that this ‘en-gendering’ of human insecurities could be overcome if gender equality was designed into policies and guided their implementation. (shrink)

Many studies have highlighted a substantial "bureaucracy domination" in procedures relating to migrants’ access to territory. This form of domination is marked by highly discretionary and arbitrary practices, enacted by the administrative authorities of the state. Only minor attention, however, has been devoted to the arbitrariness of judicial decisions and to the judicial role in general in the numerous proceedings that increasingly affect the path of migrants. This path is the main object of this paper. The study focuses (...) on Italian case law in expulsion and detention proceedings of irregular third country national citizens and asylum seekers and presents qualitative empirical research on decisions issued by the competent national authorities. The results have been analysed using a selection of theoretical tools, all referable to the general concept of the rule of law. The judicial decisions on pre-removal detention proceedings in two case studies are examined: the jurisprudence on detention of irregular migrants, in different offices of the Justice of the Peace in Italy; and the case law on detention of asylum seekers in the Ordinary Tribunal of Rome. The assumption underlying the research is that various conceptions of the rule of law may have different explanatory power when it comes to explaining the empirical results. To verify this hypothesis, the study proposes an overview of the main rule of law doctrines in the Western tradition of political and legal thought and applies the method of historical-conceptual analysis. As a result, the explanatory power of six theoretical models of the rule of law was verified against the data with the view to highlight the virtues and vices of the respective explanatory frameworks. This article reaches a two-fold conclusion. First, as far as the explanatory frameworks are concerned: the results of the two case studies cannot be fully explained by any of the models considered in this study. This fact alone casts doubts on the explanatory power of these theories and calls for further research on judicial decision-making more generally. Secondly, a key finding of the study regarding the notions of discretion and arbitrariness is that the judicial approach which assures the highest protection of rights is also the one that is most easily influenced by arbitrariness. The author argues that this paradox can be easily dissolved by paying attention to the plural dimensions of arbitrariness. If we consider arbitrariness from a legal point of view, i.e. as an illegal decision, it is unsurprising that the authority that most uses its discretionary powers is also the one most at risk of abusing these discretionary powers and hence of exercising arbitrary power. However, if we consider arbitrariness from the point of view of philosophical-political theory, i.e. as a form of domination characterised by the absence of sufficient justification, it is unsurprising that the judicial approach which assures the highest protection of rights is also the one that takes its own role as guarantor of these rights and of the constitutional democratic legal order as such most seriously. This judicial approach thus most often risks exercising its power in criticisable ways, as compared to an authority much more in line with the requirements of law enforcement agencies. Keywords: migration, discretion, justice, arbitrariness, civil rights, Rechtsstaat, expulsion, mixed constitution. (shrink)

Normative political theory over recent decades has focused mainly on what ought to be done as far as migration policies are concerned. It faces a basic challenge, which stems from two competing, yet equally fundamental, ideals underpinning liberal democratic societies: a commitment to moral universalism and the exclusionary requirement of democracy. The objective of this special issue, ‘New Challenges in Immigration Theory’, is to provide a conceptual overview of (some) immigration theories and to highlight the challenges new streams of immigration (...) pose for normative (political) theory and liberal democratic practice. The issue will consider how to reconcile state-based exclusion with a commitment to equal moral concern for all persons, by focusing on the non-standard immigration questions that have so far been ‘neglected’ by normative political theory. In line with this objective, the issue will discuss some of the inadequacies of the dominant political theories of immigration and show how such theories can be expanded to take account of new migration challenges such as brain drain, climate migration, detention of irregular migrants and asylum seekers, rights of labour migrants, transnational networks of movement, and so on. (shrink)

Cet article s’interroge sur les ressources caractéristiques d’une mobilisation de sans-papiers. C’est au travail symbolique de présentation de soi et de sa cause qu’il faudra s’intéresser. Le tableau de ce type de lutte implique ainsi de souligner l’importance de l’obtention d’une « légitimité émotionnelle ». Autrement dit, le désespoir social et la faiblesse deviennent des armes dans une dramaturgie où s’affrontent la Morale et le Droit. Néanmoins, bien d’autres facteurs seront nécessaires à l’obtention d’un « succès public ». La spectacularisation (...) du conflit, son florilège de personnalités de tous ordres, et son long cortège médiatique participeront activement à cette réussite. À tous les niveaux de la mobilisation, ce sera l’humanisme qui s’imposera comme code idéologique indépassable du soutien aux sans-papiers.This article addresses the resources which characterize an irregular migrant mobilization. We’ll focus on the symbolic work carried out in the setting-up of a picture of oneself and of one’s cause. As a result, this kind of struggle also implies a quest for an « emotional legitimacy ». In other words, social despair and weakness become weapons in a dramaturgy confronting Moral philosophy and Right. However, many other factors will have to be brought together to trigger a « public success ». The spectacularization of the conflict – which boasts a large number of prominent figures from all social spheres and extensive media coverage – will be actively instrumental in this success. At each level of the mobilization, humanism appears as the inescapable ideological code of the support lent to irregular migrants. (shrink)

"Territorial Presence As A Ground For Claims: Some Reflections" returns to political theory to assess the moral and legal position of those individuals who are inside the territory of liberal democratic states, but whose very presence has been unauthorised by the state. The author asks the question as to what their bodily presence means and does from a political perspective. The paper is part of a broader political phenomenology of territoriality in liberal national thought and puts emphasis on the idea (...) that it is migrants’ bodily presence within the state’s territory that lies at the analytical heart of the conversation about irregular immigrants. What is paradoxical about territorial presence of unauthorised migrants is that such presence is simultaneously the source of the offence states invoke as a justification for making them ‘illegal’; the basis for protections the migrants may claim against the state for basic fair treatment while present; and the ground for claims they make to remain present – i.e., to stay in the territory. Territorial presence is thus a fertile ground for the analysis of arbitrary law-making in migration. The author sets out to analyse some recent legal developments pertaining to the governance of irregular non-citizen immigrants in the United States. These developments bear on the project of theorising "immigrant justice" as resistance to the growing illiberalization of migration policy. In her view, the very existence of a class of people designated as irregular migrants within state polities presupposes that such polities maintain formal exclusionary border regimes and that in such regimes, some persons are predesignated as ineligible for entry. And even though those exclusion rules do not function to fully preclude entry and presence of such persons, states do not treat their arrival as an automatic basis for full membership either. Hence, irregular immigrants are territorially present in a state that purports to eschew that presence. The author then explores how the idea of “sanctuary” relates to the kinds of claims that both liberal humanitarians and immigrant justice advocates have been making over the last few years. These are claims which ground protection in what exponents cite as the overriding ethical significance of immigrants’ territorial presence – their already-hereness – as the basis for recognition and rights. In particular, the author makes the case that even though "sanctuary" provides a logic of safe harbour, it fails to end the predicament of constitutive based in border exclusionism. For her, the political, social, but also philosophical, struggle for the idea of border abolitionism requires a figurative sword that must go beyond sanctuary so that borders are not just mitigated, but radically deconstructed and even destroyed. The author takes this to be the vital imperative that confronts all legal and political theorists who must engage the normative challenge of rethinking arbitrary law-making in view of the new inequalities that a global political order grounded on sovereign borders produces. (shrink)

Anne McNevin’s book provides a valuable contribution to ongoing debates about the plight of irregular migrants in the context of neoliberal hegemony. It combines detailed analysis of contemporary movements that resist the ever-increasing controls over borders and movement, together with critical assessments of a range of contemporary theorists on the question. McNevin’s central argument is that neoliberalism not only delineates the migrant subject in various ways, but also traps activists into replicating many harmful assumptions about ‘deserving’ versus ‘undeserving’ (...) migrants. She further argues for a resurrection of the political subjectivity of migrant communities, by both exploiting the crisis engendered at the nexus of neoliberal economics and the sovereign subject, and resisting the framework set by those paradigms. (shrink)

Carens's suggestion for a so-called firewall protecting irregular migrants' basic rights creates serious problems of coherence and feasibility for the legal and political systems of host countries.

The aim of this article is to show that refusing to legalize the status of undocumented immigrants who have been long-term residents is a serious violation of human rights. The "right to have rights" ­ a term coined by Hannah Arendt and developed by Sheila Benhabib ­ should be construed first and foremost as the right to a legal existence. We take issue with consequentialists who warn that legalizing the status of undocumented aliens will encourage further undesirable immigration, for withholding (...) legal status in order to deter illegal newcomers is neither efficacious nor just. We conclude that "selective" as opposed to "endured" immigration policies are ethically untenable. (shrink)

La aprobación en junio de 2008 por el Parlamento Europeo de la Directiva de retorno —denominada también Directiva de la infamia o Directiva de expulsión— consolida el proceso de involución que sobre los derechos humanos se viene produciendo en la Unión Europea desde que el miedo a la inmigración irregular se incardinó en sus instituciones. Si bien las legislaciones de extranjería de los años ochenta contenían normas que regulaban el internamiento y la expulsión no es hasta la Directiva 2001/40/CE (...) que comienza a tomar forma una política comunitaria centrada en la inmigración irregular y las expulsiones de migrantes. Las medidas de retorno son, dice la Comisión europea, “una piedra angular de la política de migración de la UE”. Desde entonces, la barbarie de los centros de retención e internamiento, el socavamiento de los derechos y la exclusión y criminalización de los migrantes extranjeros se han convertido en el caballo de batalla de las asociaciones defensoras de los derechos humanos. La erosión que las legislaciones y medidas de expulsión están provocado en los derechos y libertades y en las instituciones del Estado de derecho es inmensa. El retroceso y la erosión en los derechos y libertades es tan grande que ya no es posible continuar hablando sin más de Estados de derecho en la UE, sino más bien de máquinas administrativas para el internamiento y la expulsión, de “Estados expulsores” (1), donde las personas extranjeras son tratadas como semipersonas (2) e incluso como “no-personas” (3). (shrink)

How to respond to unauthorized migration and migrants is one of the most difficult questions in relation to migration theory and policy. In this commentary on Gillian Brock’s discussion of “irregular” migration, I do not attempt to give a fully satisfactory account of how to respond to unauthorized migration, but rather, using Brock’s discussion, try to highlight what I see as the most important difficulties in crafting an acceptable account, and raise some problems with the approach that Brock (...) takes. In thinking about unauthorized migration, both while trying to craft positive policies and while critiquing existing practices, we need to ask if we are most interested in a general account of how to respond to unauthorized migration, one that would apply to the large majority of cases and provide us a default approach, or if we are better served by taking a piecemeal approach, looking at why certain people or certain groups should be exempt from removal, even if they would otherwise be liable to it. In this paper, I will focus primarily on this distinction, and argue that it is at least important to provide an account of the "generic unauthorized". (shrink)

The Venezuelan migration crisis has displaced over six million people and is the Americas’ largest forced migration. Nearby countries have received the majority of the displaced and initially showed an impressive welcome to Venezuelans, regardless of whether they may be considered migrants, asylum seekers, or refugees. However, host country responses have mainly been uncoordinated, siloed, and impromptu. This paper examines the solidarities and tensions within the individual country responses of Venezuela’s closest Latin American and Andean neighbors: Colombia, Ecuador, Peru, (...) Chile, and Brazil. The number of displaced people leaving Venezuela has steadily increased since 2015 yet limited long term-planning and inclusion of migrants in host communities has led to a growth in xenophobia. Additionally, many Latin American host nations have erected new barriers that make legal entry or residency forms more difficult for migrants to obtain. The COVID-19 pandemic has compounded these issues as host countries grapple with supporting and offering resources to their citizens in addition to migrants. However, some promising regional solutions could be applied in a more coordinated regional approach to help ensure that host countries and IOs supporting them can better extend enduring solidarity and inclusion to Venezuelans. These solutions include longer-term visa options, such as the new Colombian 10-year visa, that can help regularize and include Venezuelans over a prolonged period. A particularly recommended approach would be the regional application of an inventive Latin America humanitarian-orientated accord, the Cartagena Declaration, a forward-thinking concept with a potential that has never been realized. The Cartagena Declaration could offer more comprehensive protection and fairer access to rights beyond temporary measures. (shrink)

Dans l’opinion publique, la migration « irrégulière » est associée à l’entrée et au séjour non autorisés. Un nombre croissant d’études indiquent toutefois qu’elle résulte de la production de catégories légales de séjour autorisé. Le présent chapitre enrichit cette littérature, en montrant comment la construction de la catégorie légale de travail autorisé est productrice d’immigration « irrégulière ». En effet, la multiplication des conditions d’accès à l’autorisation de travail a pour effet de priver de droit au séjour des personnes autrement (...) en situation régulière. La France, située en tête de classement en matière d’obligations de quitter le territoire et en fin de classement en matière d’immigration professionnelle, représente un cas d’école parmi les pays de l’Union Européenne. (shrink)

This paper advances a historical and philosophical explanation of the dynamics of irregular migration and the EU-external border policy in Africa. The refugee crisis in Europe has led to tougher security measures, including the EU’s externalization of its boundaries to transit countries with serious implication for human security and regional stability in Africa. In re-assessing the foundation of international migration policies through historical and philosophical lenses, this work brings to the fore the internal contradictions in EU-external border policy in (...) Africa. Whereas migration studies have drawn insights from political and applied moral philosophy, this approach is rare in the debate on irregular migration and informal transborder flows between the EU and Africa. The article particularly unveils the inter-relational complexity between globalization, migration, human rights and development. The approach is qualitative based on the critical analysis of ethnographic survey, government documents, mass media reports and existing literature. Underpinned by the philosophical tenets of the Hobbesian “collective right” and Lockean concept of “inalienable” human rights, as well as the discourse on the “priority thesis”, it concludes that the resolution of the migration dilemma lies in the ethical modification of the immigration laws in line with the universal notion of democratic values, the rule of law, human rights and the reality of global inter-connectivity. Keywords: Africa, External Border Control, European Union, Development, Human Rights, Irregular Migration; Priority Thesis. (shrink)

This article examines the politics of reproductive labor in globalization. Using the case of migrant Filipina domestic workers, the author presents the formation of a three-tier transfer of reproductive labor in globalization between the following groups of women: middle-class women in receiving nations, migrant domestic workers, and Third World women who are too poor to migrate. The formation of this international division of labor suggests that reproduction activities, as they have been increasingly commodified, have to be situated in the context (...) of the global market economy. This division of labor is a structural process that determines the migration of Filipina domestic workers. As such, this article also uses in-depth interviews to examine and enumerate the contradictions that migrant Filipina domestic workers experience in their family and work lives as a result of “being in the middle” of this division of labor. (shrink)

The author integrates, expands, and deepens his previous publications about irregular (or "metalinguistic") negations. A total of ten distinct negatives-several previously unclassified-are analyzed. The logically irregular negations deny different implicatures of their root. All are partially non-compositional but completely conventional. The author argues that two of the irregular negative meanings are implicatures. The others are semantically rather than pragmatically ambiguous. Since their ambiguity is neither lexical nor structural, direct irregular negatives satisfy the standard definition of idioms (...) as syntactically complex expressions whose meaning is non-compositional. Unlike stereotypical idioms, idiomatic negatives lack fixed syntactic forms and are highly compositional. The final chapter analyzes other "free form" idioms, including irregular interrogatives and comparatives, self-restricted verb phrases, numerical verb phrases, and transparent propositional attitude and speech act reports. (shrink)

Migrant farmworkers dominate the horticultural workforce in many parts of the Minority (developed) World. The ‘manual’ work that they do—picking and packing fruits and vegetables, and pruning vines and trees—is widely designated unskilled. In policy, media, academic, activist and everyday discourses, hired farm work is framed as something anybody can do. We interrogate this notion with empirical evidence from the Sunraysia horticultural region of Australia. The region’s grape and almond farms depend heavily on migrant workers. By-and-large, the farmers and farmworkers (...) we spoke to pushed back against the unskilled tag. They asserted that farmworkers acquire knowledge and skills over time and that experienced farmworkers are valuable—their value being brought into sharp relief against accounts of inexperienced farmworkers’ errors. Our interviewees provided rich insights into farmworkers’ engagements with crops and the intricacies of picking and pruning well. Far from being bereft of knowledge and skills, they recognised that experienced farmworkers bring benefits. They improve productivity, product quality and ultimately profits. This is especially so when open communication channels exist across the farm hierarchy, when experienced farmworkers’ insights are taken seriously by their employers. Our research is informed by organisational studies literature and scholarship on craft/making. Like factory floor workers and artisans, experienced farmworkers bring accumulated knowledge and skills to their work, gained through repeat performance. They reflect on and adjust their activities in dialogue with their materials and the environment. Experienced farmworkers demonstrate care, dexterity and judgement. They are not unskilled, and they are more than labouring bodies. (shrink)

Climate change and environmental problems will force or induce millions of people to migrate. In this article, I describe environmental migration and articulate some of the ethical issues. To begin, I give an account of these migrants that overcomes misleading dichotomies. Then, I focus attention on two important ethical issues: justice and responsibility. Although we are all at risk of becoming environmental migrants, we are not equally at risk. Our risk depends on our temporal position, geographical location, social (...) position, and the kind of society in which we live. We all contribute to environmental problems, but we do not contribute equally. About 11% of the world population is responsible for 50% of carbon emissions. These inequalities raise issues of justice because many of the people who are at high risk have contributed little to the problems. Since the issues of justice are relatively clear and compelling, I focus more attention on issues of responsibility. I use Iris Marion Young’s account of responsibility for structural injustice to address four key questions about moral responsibility and environmental migration. (shrink)

Irregular self-selection is a demonstration of active involvement in interaction. English as a foreign language learners’ talk-in-interaction is one of such cases. Yet, little research has explored when, how, and why learners implement this action. The aim of this article is to address these issues in Chinese postgraduate EFL learners’ conversations from the perspective of multimodal interaction. To this end, we provide descriptive statistics and use multimodal conversation analysis to investigate the detailed process of irregular self-selection. The results (...) show the interactional sensitivity of learners, and all the successful irregular self-selection can be divided into the following three types: turn interruption, turn competition TC), and turn holding abortion. Learners implement this action by using multimodal resources, including lexis, syntax, pitch reset, intensity enhancement, gaze, and so forth. However, their body movements lack diversity, causing behaviors to be constrained and inactive. The main purpose of irregular self-selection is to provide knowledge that contributes to topical development. This study reveals that Chinese postgraduate EFL learners are interactionally competent members. They are able to achieve communicative goals but in a low diversity of body movements. The findings help to understand the detailed process of speakership claiming in EFL learners’ conversations. (shrink)