Debating regularisation of irregular migrants

Abstract

In this working paper, Sarah Song and Irene Bloemraad’s article “Immigrant legalization: A dilemma between justice and the rule of law” is followed by four critical responses and a rejoinder by the authors. The authors highlight that immigrant legalisation policies raise ethical challenges, as they involve a conflict between justice, which supports granting legal status based on social contributions and vulnerability, and the rule of law, which opposes rewarding illegal behavior. Song and Bloemraad argue, however, that immigrant legalisation can actually strengthen the rule of law, supporting their case with five key points, as well as discussing policy implications. Amelia M. Wirts and José Jorge Mendoza agree with Song and Bloemraad that the rule of law and regularisation policies are compatible, and that regularisation supports the rule of law. Their comment calls for a deeper examination of the motivations behind objections based on rule-of-law arguments, suggesting that these objections are often not good-faith counterpoints to justice-based claims for undocumented immigrants, but used as strategies to undermine those claims through dog whistling, discrediting, distorting, and ostracizing. Andrea Sangiovanni’s response also shows agreement with Song and Bloemraad’s findings but questions their use of the rule of law to justify legalisation. Sangiovanni argues that rule of law considerations can both support and oppose legalisation, making them an unstable basis for defending unauthorised migrants’ rights to permanent residence, and suggests that justice-based arguments are more compelling. Willem Maas‘ response provides three critical remarks: (1) for most migrants, secure residence rights or other rights, such as those to study or work, are more important than citizenship; (2) the legitimacy of rule of law arguments is questionable, given the frequently changing and sometimes unjust immigration laws and policies; and (3) narrowing the gap between justice and the rule of law can be achieved by implementing diverse rights and statuses, prioritising politically feasible solutions. In a last response, Susan F. Martin reflects on the 1986 Immigration Reform and Control Act (IRCA) in the U.S. Using her personal experience as the Research Director of the U.S. Select Commission on Immigration and Refugee Policy, she offers new perspectives on IRCA and aims to inform current and future discussions on justice and the rule of law. At the end of this working paper, a rejoinder by Song and Bloemraad provides a response to the critics, acknowledging the complexities of rule of law arguments. Song and Bloemraad highlight historical and contemporary perspectives, arguing that genuine rule of law concerns exists alongside justice arguments, and ultimately suggesting that legalisation can rely on and contribute to rule of law principles such as consistency and transparency. They also stress the importance of offering pathways to citizenship rather than just provisional rights.