The Human Right to Immigrate: Instrumental, Not Cantilevered?

This paper argues that there is a moral human right to immigrate (HRI) in non-ideal circumstances only. Long subject to contentious debate in political theory, HRI has most commonly been defended by appeal to cantilever arguments. The cantilever argument claims that there is no significant disanalogy between the widely recognized human right to free movement within states (HRDM) and the notion of a human right to free movement across states, so that the latter is morally prescribed as well. Here, I begin by focusing my attentions on such arguments: while their intuitiveness is striking, I argue that the analogy at the heart of this strategy is faulty on the most plausible interpretation of the grounds for HRDM, rendering the argument unconvincing. Understood properly, I argue, we cannot extend HRDM to the transnational realm in a world that is not globally politically integrated; cantilever arguments for HRI must thus be rejected. I then go on to revitalize the often-overlooked instrumental strategy for the justification of HRI. Specifically, I examine the idea that without HRI, respect for and protection of already recognized human rights cannot be sufficiently guaranteed. I connect this notion to the statist conceptualization and practice of border regimes, arguing that the state’s unilateral hegemony entails a significant human rights deficit that, at first look, instrumentally warrants HRI as freedom from immigration enforcement. This is because the state’s unilateral control over border practices does not only contingently involve violations of basic human rights, but entails that the protection of migrants’ human rights is insufficiently robust. However, I concede a central point made by those who reject the instrumental strategy for the justification of HRI. An instrumental justification must demonstrate its prescription’s necessity – or, at least, unique effectivity – for the fulfilment of the cause it purports to further. Thus, if it turns out that a robust viability of migrants’ basic human rights can be established by other, similarly effective means, the instrumental argument for HRI loses its justificatory force. I acknowledge this constraint and argue that there is, in fact, an alternative – and preferable – avenue towards robustly safeguarding migrants’ human rights. Hitherto, my argument has strongly suggested that the problems posed by coercive border control are problems specifically connected to border control unilaterally practised by states, and may well be avoidable in a different institutional setup. An alternative to HRI, I suggest, may be found in the enfranchisement of migrants in the processes deciding their fates and/or in the reassignment of coercive decision power to more impartial institutions, removing this process from the state’s discretionary sphere. Notwithstanding the force of this argument, I do not fully concede the implausibility of HRI. While the ideal solution will not warrant HRI, I argue that we have concurrent duties in non-ideal circumstances, and that such duties include the recognition of a normatively non-fundamental HRI as instrumental to securing both an adequate framing of the debate over what is at stake in unilateral immigration enforcement, and the moral enfranchisement of migrants.