Authority and Immigration

David Miller

doi:10.1177/00323217211046423

Abstract

States claim to have authority over prospective immigrants who have not yet been admitted but are nonetheless expected to comply with immigration law. But what could ground such an authority claim? The service conception of authority defended by Raz appears not to apply in this case. Nor can it be argued that immigrants give their consent to the state by applying for admission. Another approach appeals to the practice of reciprocity between states in respecting each other’s immigration regimes, but many immigrants will fall outside of its scope. Instead, the article defends the view that the natural duty of justice requires immigrants to comply with the state’s immigration regime provided that it is reasonably just. This does not require that the immigrant herself should have authorised the regime through democratic participation. However, the natural duty argument has to be qualified by recognising that some migrants can legitimately appeal to necessity as grounds for breaching the duty and entering unauthorised.

Highlights

The question this article addresses is whether and if so on what grounds states can claim authority over prospective immigrants, meaning would-be immigrants who have not yet been granted legal recognition by the state in the form of residence or citizenship rights
How should we understand their moral relationship to the state they are trying to enter? The state makes and applies immigration law to people who belong in these categories and it expects them to comply with its regulations; in other words, it claims to have legitimate authority, within this limited sphere, over people who are not yet under its jurisdiction in the way that citizens and permanent residents are
I have argued that the natural duty of justice provides the best explanation of how states can have authority over prospective immigrants

Summary

Introduction

The question this article addresses is whether and if so on what grounds states can claim authority over prospective immigrants, meaning would-be immigrants who have not yet been granted legal recognition by the state in the form of residence or citizenship rights. Law that apply to them.2 This means, for example, that if their application for an immigration visa is turned down, they ought not to attempt to enter illegally, or if they are refused entry at the border, they should comply with the instruction to return home.

Results

Conclusion