Researcher Alan Desmond on newly released “Immigrants and the Right to Stay” by Joseph Carens

By Alan Desmond,
UCC Law Faculty PhD student at University College Cork, Ireland.

Joseph Carens’s Immigrants and the Right to Stay (MIT Press, 2010) is based on the author’s essay The Case for Amnesty which appeared in the May / June 2009 issue of the Boston Review. While the Boston Review carried responses to Carens’s essay from 16 leading thinkers in fields such as history, law, sociology and political science, Immigrants and the Right to Stay contains just 6 of those responses.

Carens’s goal in this slim book is not to prescribe a panacea for the wider problem of irregular migration but rather to highlight the moral principles that should govern the treatment of irregular immigrants. The author essentially advances a moral argument for what he refers to as amnesty, namely the legalisation or regularisation of the status of irregular immigrants. His main contention is that the longer an irregular immigrant stays in a liberal democratic state, the weaker the state’s right to deport the irregular immigrant becomes.

With the passage of time irregular immigrants, no less than any other group of people, develop a social network, find employment, grow attached to particular faces and places, contribute to the economy, get married and divorced, raise children. As these ties develop and strengthen, the state’s right to deport erodes.

But how much time must pass before an irregular immigrant is entitled to legalise his stay and the state’s powers of deportation are constrained accordingly?

Carens recognises that there is no clear answer to this question and acknowledges that identifying a specific length of time after which irregular immigrants have a legal right to remain “inevitably involves an element of arbitrariness.” He suggests 5 years as a reasonable period of time after which the social membership of irregular immigrants should be legally recognised.

He argues that liberal democratic states, rather than having recourse to one-off amnesties, should institutionalise an automatic transition to legal status for irregular immigrants who have been settled for a minimum of 5 years.

Legal theorist Linda Bosniak in her response has two main criticisms. Firstly she takes Carens to task for what she perceives as his abandonment of earlier idealism in favour of realism. Carens has in the past argued for open borders, but in Immigrants and the Right to Stay he explicitly recognises the state’s right to control immigration and argues only that it should be constrained in the context and for the reasons outlined above.

Carens maintains that he still believes in his open borders argument and offers the good-natured defence that “in democratic life, we have an obligation to seek common ground to look for areas of agreement in the midst of our disagreements.” His acceptance of states’ right to immigration control is thus an attempt to conduct a respecful conversation with those who believe that states are morally entitled to control entry.

Bosniak is also concerned that Carens’s amnesty proposal does not address the situation of irregular immigrants who have been present in the state for less than the 5 years necessary for regularisation. They continue to be vulnerable to the abuse and exploitation which fear of deportation facilitates. While accepting Bosniak’s criticism, Carens points out that the state is obliged to protect certain fundamental human rights of all human beings within its jurisdiction. Referring to an argument made at greater length elsewhere, he suggests that a legal firewall should be created between immigration enforcement and protection of immigrants’ legal rights. This would mean that information gathered by those who protect the fundamental rights of immigrants would not be used for immigration enforcement purposes. Thus, for example, an irregular immigrant who is witness to or victim of a crime would be able to report the crime without fearing that by so doing they are increasing the chance of arrest and deportation on the basis of their irregular status.

Immigrants and the Right to Stay is an accessible, thought-provoking read which contains ideas that will hopefully be dealt with in greater detail in Carens’s forthcoming work Who Belongs? Immigration, Democracy, and Citizenship.

Click here for a discussion of Immigrants and the Right to Stay featuring the author.

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