I came across this slogan for the first time earlier this week, in a café in Oświęcim, shortly after a visit to the extermination camp at Auschwitz. It struck a chord, for more reasons than the obvious one. There’s something deeply disturbing about with any system that accuses people, not of offending, but of being an offence – making their very presence a matter for the criminal law.
The words and the logo are the badge of a movement, “No One is Illegal”, described on Wikipedia as a “loosely connected international network”. The groups describing themselves in these terms take subtly different positions – “a world without borders” (Sweden), an end to immigration controls (UK) , or “freedom to move, freedom to return, freedom to stay” (Canada). (These are not the same thing: the first of these is about status and citizenship, the second about movement, the third about membership.) It is probably fair to say that the movement represents some extreme viewpoints; but sometimes, thinking about the extremes can help to clarify issues that matter for those of us who live in the murky, muddy middle. The challenge that No One is Illegal puts before us is this: can immigration controls be justified?
The basic arguments for free movement are these:
- Individualism – that every individual should have a choice of where they live, and opportunities to improve their lives through their own actions
- Freedom – people are free to move, and no-one has the right to deny them a chance of a decent life
- Free markets – the efficient operation of labour markets depends on the movement, not just of goods and services, but of people.
- Humanitarianism. Migrants are not fleeing war, famine and disease lightly. People have a duty to each other, including a duty to strangers.
- Arguments about consequences. The effect of denying people access to legitimate means of movement has been disastrous – a human rights catastrophe that has costs the lives of tens of thousands of people. People use boats or walk because they cannot fly or drive. They use dangerous, illegitimate routes because the safe, legitimate routes have been closed to them.
No One is Illegal starts from the premise that everyone has a right to be where they are. If immigration controls are to be justified, there have to be some considerations to set against that presumption. The key arguments for control are these:
- Communitarianism. People in different places have connections, networks, shared values and culture that have to be respected. Migrants are not excluded, but have to be integrated; free movement is not compatible with this.
- Citizenship. Citizenship can be understood, for this purpose, as membership of a social and political community; membership depends on status, mutual obligations and relationships with the wider community, not just on physical presence.
- Pragmatism. Migrants can be admitted when they are useful for a nation, and excluded when they are not.
- The argument about capacity. If people are going to be absorbed into any new society, there have to be the services, facilities and infrastructure to support them. This, like the communitarian argument, does not mean that migration is excluded; it means that it needs to be controlled.
(There are also lots of bad arguments for restricting migration, including racism, ethnocentricy, and the defence of privilege. I am not going to look at them here, except to note that they have been made.)
All of the arguments for free movement are good ones, and some are very strong; but I am not convinced that they trump all the arguments for some controls. Even if people should be able to move much more freely, some thought has to be given about integration and management – housing, education, medical care, language and so on. The countries which are most welcoming to migrants are the countries which do just that.
That brings me back to the slogan, “No-one is illegal”. What, if that was more generally accepted, would that mean? Taken to the extreme, it could be taken to imply a free-for-all, or or an unregulated labour market, or unrestricted laissez-faire. However, the position does not need to be taken so far (and I doubt that the supporters of the principle, many of whom think of themselves as ‘anti-capitalist’, mean to say that). In general terms, it implies only:
- that being present in a country is primarily a question of fact, not a legal status;
- that countries which intend to regulate migration need to accept that migrants have rights, too; and
- that it should not be a criminal offence simply to be present in a country.
The arguments considered here would mean that migration can still be controlled by regulating and managing permissions to reside, and taking steps to integrate migrants. For the UK, it seems to me to follow that :
- The UK has a responsibility to manage the integration of migrants, to ensure appropriate facilities and access to services;
- The onus of showing that a person does or does not have permission rests with the authorities, not the individual;
- While some permission to reside may be explicit, permission to reside is also implicit in a range of actions that governments may take, including levying personal taxation, licensing actions (e.g. issuing a driving licence), regularising employment (National Insurance numbers) or recording the presence of the person (births, marriages or divorce). It follows that any of these could be considered to be proof of residence.
- The rule which has applied since 1971 – that being present without permission is in itself a criminal offence – is wrong in principle, and should be discontinued.
I should add one further issue, which is not implicit in the slogan: the principle of natural justice, which is that no person should be deprived of his or her liberty without due process and a hearing. That should be true for everyone that the state comes into contact with, regardless of nationality, status or permissions.