Irregular migration and democracy: the case for inclusion

Abstract

This article examines the democratic status of irregular immigrants from the vantage point of different models of democratic inclusion. The argument developed is that irregular immigrants are in fact members of the democratic state by virtue of being subjected to the legally binding norms in the territory of the state. The extension of the vote and other political rights to irregular immigrants nevertheless remains problematic due to their ‘illegal’ status. Because this status follows from the restrictive border policies implemented by most contemporary states, it shows that the ideal of democratic inclusion is scarcely reconcilable with a policy of restrictive cross-border movement. The conclusion defended in the article is that the interest in keeping borders restricted reduces the prospects for democratic inclusion in contemporary states.

Keywords:

• citizenship
• undocumented
• immigrant
• democracy

Notes

 1. Terminology in this field is controversial, partly because of the troubling connotations of the term ‘illegal’ and partly because a person is not strictly speaking classified as an illegal immigrant until his physical presence in the country is known by authorities (Guild 2004, p. 16). For these reasons I will refer to ‘irregular immigrant’ in congruence with what is reportedly the recent trend (see Undocumented Migration Glossary 2008, p. 12). Alternatives would be ‘undocumented immigrant’ (Paspalanova 2008, Castles 2006, p. 751) or ‘non-status migrants’ (Nyers 2010).

 2. Estimates of the number of irregular immigrants are uncertain for natural reasons. Various sources estimate that between 7 and 20 million irregular immigrants currently live in the USA. According to the official statements by the European Commission (2009, p. 4) at least eight million irregular immigrants reside in the member states of the Union.

 3. The legal rights of irregular immigrants vary between different countries. However, as affirmed by the Council of Europe, basic human rights do apply to any person whatever her legal status is (Tonelli 2004, p. 303).

 4. This point is further developed in Beckman (2009).

 5. A comprehensive account of the causes for the exclusion of non-citizens from the vote is found in Earnest (2009).

 6. As documented by Lipman (2006), irregular immigrants make a contribution to society not merely by working but also by paying (mostly indirect) taxes. Lipman even suggests the ‘effective tax rate’ is higher for irregular immigrants since they receive so little in return. The observation is important although it may not constitute a compelling argument for extending the vote. Tourists and transients evidently pay taxes too. And, more importantly, the view that contributions to the public purse represents a sufficient condition for the right to vote sits uneasily with the principle of an unconditional right to vote regardless of a person's productive abilities (see Beckman 2006).

 7. The European Court of Human Rights acknowledges the duration of residence as relevant for cases related to Article 8 of the Convention (protecting family life and privacy). By appeal to the time of the stay, the Court has struck down decisions by member states to expel immigrants. See Murphy (2010, p. 28).

 8. Amnesties do not provide the sole opportunity for the regularization of irregular immigrants. For example, before 1996, US immigration regulations offered rights of residence to any irregular immigrant able to prove seven years of continued presence in the country, good moral conduct and severe hardship in case of deportation (Sassen 2002, p. 12).

 9. It should be noted that these implications are rejected by Miller (2010) although he does recognize the significance of coercive threats (2009, p. 219).

10. The claim that legal subjection is both necessary and sufficient for a right to a democratic say is defended by Lopéz-Guerra (2005) but disputed by Owen (2010, p. 62).

11. The jurisdiction of the state may also be extended territorially by the incorporation of foreign territories. Irregular immigrants may thus follow from the migration of borders as well as from the migration of people. As narrated by Volpp (2004), this turned out to be the fate of many Mexicans living in Texas and in other territories conquered and eventually incorporated into the USA in the nineteenth century: ‘We didn't cross the border, the border crossed us’.

12. A further question is the status of tourists and transients as they are clearly subject to the norms of the legal system. The answer would be that their exclusion might be normatively justified for reasons of expediency although it would have to be admitted that including them too would be ‘more’ democratic (see Beckman 2009, pp. 80–88).

13. See Nyers (2010) for examples of local authorities being persuaded to adopt DADT policies to make possible access to public services for irregular immigrants.