Unauthorized Immigration, External Legitimacy, and Background Injustice

Existing international law grants states considerable discretion to exclude foreigner from their territories and restrict immigration. States enforce these restrictions with force. They have border guards, detention camps, and deportation tribunals. Still, many people seek to resist immigration enforcement by deceiving or evading border guards, by overstaying their visa, or seeking employment without official permission. Support for stricter immigration enforcement are growing in some parts of the world where anti-immigration populism is on the rise. However, in an unjust world like ours, states will continue to guard their borders jealously and many people will seek to immigrate legally or otherwise. This kind of migration is likely to impose burdens on public services in the receiving states and further encourage anti-immigration sentiments. This paper aims to defend a conditional right of unauthorized immigration held by persons who are unjustly disadvantaged as part of their right to resist global injustice. When there is significant background injustice at the global level and the receiving state fails to fulfil its obligations of global justice, it is morally permissible for those unjustly disadvantaged to seek remedy through unauthorized immigration, but there must be reason to think that such actions will bring about a net improvement of justice. The principal contention in this paper is that some moral failures committed toward outsiders can dissolve the legitimate authority of states in enforcing immigration restrictions and ultimately the legitimacy of international borders governance institutions. It argues that unauthorized immigration is a kind of uncivil resistance engaged by victims of injustice. It is a form of disobedience which is generally covert, evasive, and anonymous. However, for unauthorized immigration to be qualified as an act of resistance, as opposed to banal criminal activities, it must be a remedy to existing injustice. Either unauthorized immigration will help bring about institutional change that promote justice, or it will improve the well-being of victims of injustice without imposing unacceptable burdens on other individuals. Therefore, we will have to consider the potential impacts of unauthorized immigration on the residents of the receiving state, the other prospective migrants, and those who are left behind. These considerations tend to impose some limits the right of unauthorized immigration. In the most feasible world where there is widespread non-compliance with demands of justice, unauthorized immigration would still be morally permissible. The paper will also consider and respond to three possible objections. The epistemic objection: my account is epistemically too demanding for individual migrants. The fairness objection: the burdens associated with unauthorized immigration are not fairly shared by the relevant states or persons. The non-compliance objection: even when a state has fulfilled her obligations of global justice, she is also under a duty to pick up the slack as result of other state’s non-compliance. All these are powerful objections but they are insufficient to rebut the arguments presented in this paper.