The case for amnesty

Time for some intellectual input from the US, in the form of a very fine recent essay in the Boston Review, 'The case for amnesty', which is subtitled: "Time erodes the state's right to deport". Joseph Carens's thesis is that "the longer the stay, the stronger the moral claim to remain".

To illustrate the point, he takes the case of Marguerite Grimmond, an 80-year-old woman born in the US but resident in the UK from the age of two, who went on a vacation to Australia, only to be told, on her return, that she had no right to reside in the UK and faced deportation. The case came to light in June 2007 and is reported here by the BBC; she was in every sense an illegal immigrant, who knew that she did not have British citizenship, who had evaded immigration controls. Yet she was allowed to regularise her status, because, as Carens puts it, "the moral absurdity of forcing her to leave a place where she had lived so long was evident, whatever the legal technicalities." Time confers a moral right to remain.

The question then becomes: how much time? And how much of a right? In the case of Mrs Grimmond, she had arrived as a child, which confers rights; but what if she had arrived at 20, not two? Would anyone seriously advocate deporting her after 60 years?

How long is too long? What if Grimmond had been 60, not 80? Would that have diminished her claim to stay? I assume not. What if she had been 40? The poignancy of the case certainly diminishes, but the underlying principle remains: there is something deeply wrong in forcing people to leave a place where they have lived for a long time. Most people form their deepest human connections where they live. It becomes home. Even if someone has arrived only as an adult, it seems cruel and inhumane to uproot a person who has spent fifteen or twenty years as a contributing member of society in the name of enforcing immigration restrictions. The harm is entirely out of proportion to the wrong of illegal entry.

Grimmond was relieved at not being deported because she no longer had a connection to the US where she was born. Her fear and anxiety at being removed to a place she was no longer rooted are similar to what an asylum seeker will feel after 10 years in the UK. Commenting on the shocking case of Hiu Lui Ng, reported here in the New York Times, Carens notes:

In addition to the claim that he had to remain in the United States because of his marriage to an American citizen, Ng had a powerful claim to stay simply because he had already been in the United States so long and thus had become a member of society. Unlike Grimmond, he had not been present for over seven decades, but he had lived peacefully in the United States for fifteen years, getting an education, working, building social connections, creating a life.
Fifteen years is a long time in a human life. In fifteen years connections grow: to spouses and partners, sons and daughters, friends and neighbors and fellow-workers, people we love and people we hate. Experiences accumulate .... We sink deep roots over fifteen years, and these roots matter even if we were not authorized to plant ourselves in the first place. The moral importance of Ng’s social membership ought to have outweighed the importance of enforcing immigration restrictions.

Carens's argument -- which will not appeal to the No Borders crowd, but nicely articulates the position of Strangers into Citizens -- is that the time / morality argument cuts both ways.

If there is a threshold of time after which it is wrong to expel settled irregular migrants, then there is also some period of time before this threshold is crossed. How much time must pass before irregular migrants acquire a strong moral claim to stay? Or from the opposite perspective, how much time does the state have in which to apprehend and expel irregular migrants?
There is no clear answer to that question. The growth of the moral claim is continuous, although at some point it becomes strong enough that further time is unnecessary. The examples I have cited suggest that fifteen or twenty years are much more than enough. Ten years seems to me like a maximum, and I would think that five years of settled residence without any criminal convictions should normally be sufficient to establish anyone as a responsible member of society. On the other hand, it seems plausible to me that a year or two is not long enough.

Interesting that he should settle on five years, which is the SiC and the mayor of London's position.

Carens believes, incidentally, that the policy implications of this are that states "should establish an individual right for migrants to transform their status from irregular to legal after a fixed period of time of residence, such as five to seven years."

That must be right, although it's harder to argue against the green-light effect -- the central objection, after all -- with such a policy. That's why SiC argues in favour of a one-off regularisation in the first instance.

This is an essay which articulates well the central claim of Strangers into Citizens from the beginning, which is that length of residence confers rights that over time erode the right of the state to deport. Or put differently: just as with the statute of limitations, it is a long-established legal principle that for minor, ie administrative, offences, if a person has not been charged or apprehended within a few years he or she can no longer be pursued.

Of course, this is hard to sell to those who have a legalistic view of such matters. "So what you're saying is, all someone has to do is to hang around for a long enough time, and then he can just become legal?" is a scornful question, but the answer to it is: Yes. That is what we're saying. And the law implicitly recognises that -- as the case of Grimmond graphically illustrates. It is also implicitly recognised in the letters currently being received by thousands of irregular migrants in the UK who are being given leave to remain as part of the legacy case clearance exercise. They are being regularised because of their "long association with the UK" -- and for no other reason.

Strangers into Citizens has always started from the reality-check that the state cannot, for practical and humanitarian reasons, deport half a million people, and that the law's obligations to long-term residents should mirror those it has to the native-born. Perhaps we need to be stronger about asserting that the state has no moral right to do so when people have been in the UK for more than five years.

Carens moves on to consider the other "moral" objection to regularisation, one which the immigration minister, Phil Woolas, resorted to in his debate with Austen Ivereigh on 4 May, namely that a regularisation would be "unfair" to those waiting in the queue in the legal immigration channel. But the reality is that "in many democratic states" - -the UK included -- "there is no effective admissions line for those without family ties or special credentials .... Most of those who settle as irregular migrants would have no possibility of obtaining authorized entry." There is no queue-jumping involved, because there is no queue to join.

Carens brilliantly demolishes the "green-light effect" argument, which is the one most often thrown at SiC -- namely, that a regularisation would send a message to the worlds unwashed to make their way to Dover. The evidence (from Spain) suggests otherwise, but the objection sticks if you've never sat down and listened to migrants' stories. As we've always said: "that's not how migrants think." Here's Carens:

If irregular migrants think about their own long-term prospects, then they surely understand that immigration policies shift over time in response to changes in the political climate. Opportunities to move to regular status may disappear when political opposition to immigration increases. Alternatively, new opportunities for regularization may appear if the political dynamics shift again. All this is beyond their control. What they can control is more immediate. Most irregular migrants compare their situation at home with what they think they will face in the near term. Most irregular migrants come because they think they can find work that is considerably more financially rewarding and because they think they will be able to evade the immigration authorities, at least long enough to make it worthwhile. In the absence of evidence to the contrary, it is plausible to suppose that such a long-term consideration as possible regularization years down the road would have little impact.

He concludes:

Even if we accept the state’s right to control immigration as a basic premise, that right is not absolute and unqualified. The state’s right to deport irregular migrants weakens as the migrants become members of society. Over time an irregular migration status becomes morally irrelevant while the harm it inflicts grows. Liberal democratic states should recognize that fact by institutionalizing an automatic transition to legal status for irregular migrants who have settled in a state for an extended period.

[Photo: Lucas]