“Illegal”

by Chris Bertram on May 1, 2018

In discussion of my recent post about the Windrush scandal, a couple of commenters used the phrase “illegal immigrants”. Tory ministers have since been on the airwaves using it a lot, and telling us that the public expects action on “illegal immigration”. Labour’s Diane Abbot has also been talking about the need to “bear down on illegal immigration” and the journalist Amelia Gentleman, who did so much to break the Windrush story, has protested that scandal of citizens denied their rights is nothing to do with “illegal immigration”.

But here’s why what they all say is wrong. There’s no such legal category as “illegal immigration”, rather there are people who have the legal right to be in the country and, perhaps, to do certain things like work or study. And then there are people who may lack the legal right to be present and to do those things. Some of the people with legal rights to be present have those rights because they are citizens; some other people have those rights for other reasons such as having a valid visa, being a refugee, or having some other human rights-based legal basis to stay.

Obviously, to “bear down” on people without the legal right to stay a government needs to (a) determine who they are and (b) take some action against them. Equally obviously, a government official may make a mistake about whether a person has the right to stay or they may use impermissible means against them. So you need a system by which people who have the right to stay but who the government wants gone can contest the bureaucratic decision against them as mistaken. Bureaucrats have to give people the chance to correct mistaken information about them. People need to have effective means to do this. Once information is provided, if the decision remains unchanged, people have to have the capacity to challenge it before an impartial tribunal. Given a “culture of disbelief” at the UK Home Office, fees for visa and citizenship applications set at absurdly high levels, the exclusion of immigration control from data privacy protections, the suppression of legal aid in immigration cases and the difficulty of getting affordable legal advice, it is clear that many people categorized by officials as lacking the right to stay will lack the capacity to challenge and overturn that determination.

What we have, in essence, is the old problem of false positives and false negatives. If you build a system to have zero tolerance of “illegal immigrants” you will inevitably get a lot of false positives when you test for “illegality” and you will deny and violate the rights of many people. If you build a system for accuracy, or, better, with the value that it is better to let a few people past than to deny people rights to which they are entitled, then you will get far fewer such cases. The UK government has deliberately built a zero tolerance system with the inevitable consequence of inflicting injustice on people by denying their rights. Unless that system is changed, the problem will continue: the fevered tabloid-driven hunt for “illegal immigrants” will catch many people who are not, even by the standards of those politicians using this language.

(Notice that nothing in what I have written so far even touches on people’s moral rights to reside, work or acquire citizenship. Personally, I believe such rights to be very extensive and to go beyond what the law currently recognizes. But that’s not the point of this post. Nor have I referred above to other problems such as the effect of the obsession with “illegal immigration” on the equal status of people who look or sound a certain way.)

{ 55 comments }

1

Thomas Beale 05.01.18 at 8:37 am

I don’t personally see any problem with the usage of the phrase ‘illegal immigrants’ in its common form, even by the Tories – it just means people who really don’t have a right to be in a country, according to its border laws.

The problem in the recent debacle most likely isn’t that evil Tories or the evil Home Office really wanted to get rid of Windrush generation immigrants, it’s that both are catastrophically confused and incompetent, and in the case of the Home Office, understaffed. I know the latter because they often tell me at the airport. That they are incompetent and confused is clear from a) the length of time it takes them to do anything, and b) the incoherence of their decisions when seen together. No better example can be found the revelation that they destroyed paper records known to contain arrival information for living immigrants. That alone should require the firing of Home Office senior staff. But many other examples abound, e.g. the plain stupid notion that landlords and real estate agents are required to perform immigration checks.

One particular area of incompetence is common to both the Home Office and relevant minister – the idea of ‘targets’. Targets are an attempt to set an output variable in a system whose input variables are already set (by policy, i.e. technical criteria). In any complex system, you can do one or the other but not both. If you set and stick to targets, you must break some of your own rules (it’s easier to have none, and just act like a paranoid dictator); since the Home Office function is all about rules, using targets mean it is simply adrift on a sea of subjective and capricious made-up rulings. This is the reason for ‘false positives/negatives’ . The fact that ministers (including the PM, on record as matter-of-factly supporting targets when she was the minister), bureaucrats and indeed the media don’t raise this question just points to the generalised illiteracy in affairs of state – any graduate scientist would spot the error.

There are other obstructions for a clear path to citizenship for the regular immigrant who pays all their taxes and NI for years or decades – e.g. the fees as mentioned in the OP, as well as the bureaucratic process (anyone want to hear what life is like for a Turkish PhD student at UCL?) – this all occurred in the last 10 years, obviously designed to block as many people as possible. From progressing from one legal status (typically Indefinite Leave to Remain) to another? Of course it makes no sense.

I wouldn’t call it a zero tolerance system, because it’s far too incompetent for that (not to mention the denialism of the reality of built-in EU immigration, by definition uncontrollable); I’m not even sure if zero tolerance is the intention. I’d say the goal of ministers (most recently May and Rudd) has been to demonstrate removals for political kudos (remember the claims of getting net immigration under 100k p.a.?). They failed of course because they don’t even understand the problem.

In the end, I see the situation as one more illustration of the intellectual incapacity of our present-day politicians, and the vacuity of our politics.

2

Murali 05.01.18 at 8:45 am

So, I agree with you that many people here and elsewhere who are deemed by the bureaucracy to lack the legal right to be, work or study in the country lack the means to challenge this designation even when the designation is mistaken. At the very least they should have the legal resources to challenge this and it is deeply unjust that they are denied these resources. Hell, I even agree with you that these legal rights should be extended to everyone who has the moral right to be, work or study here.

However, I’m not sure why that means that the legal category of illegal immigrant doesnt exist? Sure, perhaps no statute or case law mentions the term illegal immigrant, but an easy translation of illegal immigrant seems to be someone who lacks the legal right to be in the country. And that seems to be a legal category that exists regardless of whether people enjoy due process rights that help secure this right against bureaucratic interference.

3

Dipper 05.01.18 at 8:50 am

Yes. I agree with pretty much all that. And this is why we need ID cards.

Lots of people are attached to some libertarian dream that people can just be here and not have to justify their existence to the state, not have to carry round paperwork to produce when stopped by police, and I’ve always agreed with that position myself, but I think the time has come to recognise that battle has been lost. Law after law requiring individuals to give proof of identity and residence have been passed so that every interaction with a bank or arm of the state requires demonstration of identity and address. Employment and housing now require applicants to demonstrate their right of residence. Furthermore computer systems means storing data and accessing data is very easy. Citizens in the UK now find themselves constantly on the defensive where they are having to prove their identity.

Surely the time has come to introduce an ID card scheme so that in an instant a citizen can show they have passed the various requirements and can prove their status as citizens? The argument against state surveillance and intrusion has been lost, so it is time to build the mechanisms whereby citizens can navigate modern life with ease, part of which is an ID card.

4

Faustusnotes 05.01.18 at 9:48 am

I have a kind of id card in Japan and it’s a little burdensome when I have to move house, but otherwise I think it generally contributes to the smooth running of the state. It contains my visa status so if I am challenged to produce it my status will be checked (I guess this means an overstayed could be caught when they get random spot checked for their bicycle though I don’t know). While I agree with dipper that it would help it doesn’t seem to be anywhere near the core of the problem.

The core of the problem is cruel and contradictory laws imposed to give the impression of cracking down on migration to please one group (the tory grassroots) without alienating another group (donors who want labour). Until the Tories (or any British party really) are willing to make a clear case to the British people that they need more labour than their domestic population can provide, and that means foreigners, then the conflict between economic reality and anti foreigner sentiment will produce these byzantine, arbitrary laws and the associated victimisation.

While the Tories continue to appease the large slab of their voters who want all foreigners out, or at least heavily fucked with, hate refugees and are scared of anyone from further away than France, these laws will continue to punish anyone who is unlucky enough to fall in their way.

5

J-D 05.01.18 at 9:51 am

If the objective is defined as reducing to nought the number of people who are in the country but have no legal right to be in the country, there is a simple, immediate, direct, and certain means to achieve it. The people who object to illegal immigration would hate it.

Thomas Beale

The problem in the recent debacle most likely isn’t that evil Tories or the evil Home Office really wanted to get rid of Windrush generation immigrants, it’s that both are catastrophically confused and incompetent, and in the case of the Home Office, understaffed.

It is only sometimes that evil takes the form of active ill-will. Evil can also take the form of indifference to suffering caused, and there’s plenty of that kind about.

6

Dipper 05.01.18 at 10:00 am

[@Dipper: yesterday I limited to you to 1 x 300 word comment (max) on my threads per 24h. Sadly that applies even to relatively sensible comments like this one was. CB]

7

ph 05.01.18 at 11:44 am

@4 Gets it mostly right. Venality and cynicism https://www.theguardian.com/news/2015/mar/24/how-immigration-came-to-haunt-labour-inside-story compelled Labour to become Tory-lite on immigration. Some still argue that British voters should have been denied the right to vote on EU membership. I’m not sure it that is CB’s current position. Labour, in my view, should have been agnostic on the referendum, which would have allowed Labour to continue to at least pretend to care about the plight of the less-well-off. I’ve no real regret because the end result saw Corbyn propelled from the backbench to the leadership. I’m not sure the Brexit end result would have turned out differently, but agnosticism would have at least reduced Labour migration to UKIP in key constituencies.

I realize that the context for the current discussion here is CB’s new book. I’m opposed entirely to open borders for reasons that require no elaboration here. I’m keen to hear the other side of the argument well-made, however. The current mess certainly cannot be left as is and reasonable discussion will, perhaps, allow rapid resolution of specific issues and implementation of better, fairer treatment of the individuals caught up in the gears.

I’m not in favor of being forced to carry ID cards, but agree everyone should possess some form of reliable identification.

8

Ian Maitland 05.01.18 at 12:54 pm

I have tried hard to see the distinction between “illegal immigrants” and “people who … lack the legal right [to be in the country….],” but my effort ended in failure. Any shade or nuance is obviously too subtle for my obtuse brain.

9

Layman 05.01.18 at 12:55 pm

Dipper: “Surely the time has come to introduce an ID card scheme so that in an instant a citizen can show they have passed the various requirements and can prove their status as citizens?”

Why must the person prove they have a right to be present, rather than the state prove they lack a right to be present? Isn’t the former the more coercive proposition? Isn’t it also rife for the same sort of abuse we’re already seeing with Windrush in the UK and attempts in the US to retroactively un-naturalize citizens and refuse to honor green cards?

My wife is a naturalized US citizen. She has a single original naturalization certificate, which by law cannot be copied; and, if copied, the copy is not considered valid. If she were to lose it, which do you think is the more reasonable alternative: That she can rely on the state to remember that she is a citizen, and treat her as one whether they have maintained a record or not; or that she can be expelled because she can no longer prove she is a citizen?

10

Chris Bertram 05.01.18 at 12:59 pm

@Ian Maitland, well, for one thing, you could have been born in the UK, have never left it, and yet lack the legal right to be there, surprising as that may seem.

11

Lynne 05.01.18 at 12:59 pm

“So you need a system by which people who have the right to stay but who the government wants gone can contest the bureaucratic decision against them as mistaken. Bureaucrats have to give people the chance to correct mistaken information about them. People need to have effective means to do this. Once information is provided, if the decision remains unchanged, people have to have the capacity to challenge it before an impartial tribunal.”

Yes, indeed. Though perhaps you didn’t mean to limit this right to the people “who have a right to stay”? (How do they know they have the right to stay until they have challenged a decision?) Yet there has to be some limits to who qualifies for this right to contest decisions. I don’t see a problem with the term “illegal immigrant” since that is what newcomers are unless and until they are legal.

Canada’s borders have had migrants pouring over them from the States since Trump’s election. The Prime Minister proclaiming that we welcome newcomers increased the flow, since that was widely reported, but he did stipulate that all migration has to be legally done. Would all these people have the rights to challenge immigration decisions? This is not an easy question as hundreds of migrants per day are crossing the border on foot. Where do they go? Quebec has asked for federal help in housing them until their applications are processed but meanwhile they are staying in “camps” of some kind. This volume of illegal migration can be overwhelming to deal with humanely.

The following is the latest story about the influx.

https://globalnews.ca/news/4177786/migrants-nigeria-us-travel-visas/

12

ph 05.01.18 at 1:49 pm

@11 Thanks for the link. There are a number of good links from the linked article. Canada uses the point-based system desired by Trump and has a history of being extremely selective regarding immigration for those without cash. Cash helps a lot. I met a Syrian refugee in a very affluent suburb of a major Canadian city about 18 months ago. He spoke excellent English, (probably had some French, as well as fluency in Arabic), was young, well-dressed and part of family of middle-upper class ‘refugees.’ He’s exactly the kind of ‘refugee’ Canada prefers.

Only 10 percent of the Haitian claimants were admitted. Sounds like a lot? That’s 10 percent of 298, as in 30. The US is much, much more welcoming to folks without documentation. Canada, like Australia, and Japan has strict border controls – a good life and generous NGO foreign aid programs. The message is clear: stay out and perhaps we’ll find a way to help do better in your own homes. Any influx will exacerbate the always touchy question of federal/provincial finances and is probably the quickest way to bring the conservatives back to power. This is from last year: https://www.theglobeandmail.com/news/politics/sizable-minority-says-canada-is-accepting-too-many-refugees-poll/article34087415/
30 percent of the NDP supporters feel even 40,000 (down from 55,000) is too many.

13

Layman 05.01.18 at 2:15 pm

@Lynne, I had to click through one of the links to get to actual numbers to put this in perspective. There were 25,000 asylum seekers who went to Canada last year, of whom 75% may have entered illegally; while 40% of asylum applications are granted. I guess I can’t tell if the numbers create a big problem or not – they don’t seem big to me – and it seems certain that at least some people who illegally entered get approval to stay, because 40% > 25%.

14

Collin Street 05.01.18 at 2:37 pm

Why must the person prove they have a right to be present, rather than the state prove they lack a right to be present? Isn’t the former the more coercive proposition?

The problem with burden-of-proof arguments is that one of the consequences of being a self-satisfied narcissistic little git is that ipso-facto one believes that one’s conclusions and presumptions are the only reasonable conclusions and presumptions; from the narcissistic perspective of a narcissistic git, the burdens of proof naturally and even inevitably fall on those they disagree with.

Which is to say: burden-of-proof arguments are pointless in the real world, where you’re arguing against people who may well genuinely be affected by mental impairments of various sorts.

15

Ian Maitland 05.01.18 at 3:01 pm

@ 10. I stand corrected.

16

L2P 05.01.18 at 3:30 pm

” well, for one thing, you could have been born in the UK, have never left it, and yet lack the legal right to be there, surprising as that may seem.”

Isn’t the point of Windrush that even conservatives don’t think of that particular group of people as “illegal immigrants?”

The term “illegal immigrants” seems accurate when it’s used accurately, i.e., for people who came to Great Britain and are staying without legal right. We don’t like the term because it implies that a group of people are, themselves, illegal. We could change that to “illegal residents” to bring in the Windrush group (and be more accurate), but I don’t think that addresses th real concern here.

17

casmilus 05.01.18 at 3:54 pm

@14

How much success have you had with your “people who disagree with me are mentally ill” schtick? It doesn’t even seem to work very well in CT.

18

Layman 05.01.18 at 3:58 pm

‘Isn’t the point of Windrush that even conservatives don’t think of that particular group of people as “illegal immigrants?”’

I thought the point of Windrush is that conservatives treated that particular group of people as illegal immigrants.

19

Raven Onthill 05.01.18 at 4:40 pm

Dipper@3: ID cards create more problems than they solve. From cryptographer Bruce Schneier’s testimony before the Senate Judiciary Committee:

The security risks of this database are enormous. It would be a kludge of existing databases that are incompatible, full of erroneous data, and unreliable. Computer scientists don’t know how to keep a database of this magnitude secure. The daily stories we see about leaked personal information demonstrate that we do not know how to secure these large databases against outsiders, to say nothing of the tends of thousands of insiders authorized to access it. […] Even worse, as soon as you divide people into two categories—more trusted and less trusted people—you create a third, and very dangerous, category: untrustworthy people whom we have no reason to mistrust. […] Evildoers can also steal the identity—and profile—of an honest person. And if you think it’s bad for a criminal to impersonate you to your bank, just wait until a terrorist impersonates you to the TSA.

20

Sebastian H 05.01.18 at 5:37 pm

“Ian Maitland, well, for one thing, you could have been born in the UK, have never left it, and yet lack the legal right to be there, surprising as that may seem.”

The existence of edge cases doesn’t invalidate the case for having a general term and neither does the existence of false positives. The test for HIV has a false positive rate. I know because one of my close friends went through a rather harrowing few months with a false positive test in the 1990s when it still felt like a death sentence.

But the existence of false positives doesn’t invalidate the medical utility of sorting people into HIV+ and HIV- for various purposes like “do they require HIV meds” or “should I be concerned with giving them drugs which suppress immune system functioning”?

Similarly if you want to sort into “should we deport them” or “should we not” the label “illegal immigrant” is pretty good. Your question is to what should we do to make sure that we get the right answer, but the label isn’t the issue.

21

Patrick 05.01.18 at 6:16 pm

Your points about process are valid and important but don’t support the retirement of the phrase “illegal immigrant.”

You can’t make an opinion go away by making the words we use to express it taboo. And if you ever achieve the power necessary to make a word taboo, you won’t have to.

22

engels 05.01.18 at 6:57 pm

I’m curious as to whether semantic objection to the term ‘illegal immigration’ also applies to terms like ‘illegal parking’ and ‘illegal building work’. (There are kitchen extensions which have been legal permission go up then there are kitchen extensions which may lack such permission etc… Without knowing much about planning disputes it seems to me in such cases people probably ascribe illegality to deliberate attempts to circumvent the approval process with little prospect of legitimacy even if there is still a legal possibility of it subsequently being granted.) I agree with others that there’s a legitimate rhetorical objection.

23

engels 05.01.18 at 8:10 pm

To put it more briefly, the argument seems rather like attacking ‘tough on crime’ rhetoric callimg for an enhanced police presence on the grounds that the police do not have the authority to determine whether someone is a criminal, the courts do.

24

Chris Bertram 05.01.18 at 8:59 pm

I didn’t intend the post to be primarily about semantics, though I do think amalgamating a rather diverse group under the rubric of “illegal immigrant” is unhelpful and harmful as it attaches to everyone in the group a certain ideological stereotype fostered by the tabloid press. Since the cases suggested by that stereotype are the actual “edge cases”, I don’t think @Sebastian’s point has the merit he thinks it has.

My primary purpose, however, was to make the point in the penultimate paragraph.

25

Thomas Beale 05.01.18 at 9:12 pm

While there are certainly value-laden subjective usages of the term ‘illegal immigrant’, they are just part of the tabloid / media noise we endure. The standard (objective) meaning of the term is the one that matters in any serious conversation. Are you suggesting that it no longer be used because of the noise? I don’t think that can fly – losing such basic terms means one can no longer communicate normally.

Just because someone doesn’t want to hear the word ‘obese’ doesn’t mean the doctor means it in anything other than its objective clinical usage.

26

Chris Bertram 05.01.18 at 9:23 pm

@Thomas the word “immigrant” (let alone “illegal immigrant”) doesn’t denote an objective fact in the world, but reflects a partly arbitrary categorization produced by administrative, political, statistical and other methods, often inconsistently with one another. The path to clarity involves getting specific about different people in different circumstances, not falsely assuming that there’s a single phenomenon “objectively” out there. Is Boris Johnson an immigrant? Is Cliff Richard? Are “second-generation” immigrants a sort of immigrant, or not immigrants at all? There are some facts out there, but they aren’t as out there as you seem to think.

27

Dr. Hilarius 05.01.18 at 9:32 pm

In the US the term “illegal immigrants” reinforces the common belief that it is a criminal offense for an alien to be present without having a green card or similar authorization. This often is not true.

“As a general rule, it is not a crime for a removable alien to remain present in the United States. See INS v. Lopez-Mendoza, 468 U. S. 1032, 1038 (1984) . If the police stop someone based on nothing more than possible removability, the usual predicate for an arrest is absent.” Arizona v. United States, 567 U.S. 387 (2012).

For example, a foreign student or a tourist overstays their visa. They entered lawfully, so no crime there. They are removable under immigration law but this is a civil matter not criminal.

28

engels 05.01.18 at 9:50 pm

My primary purpose, however, was to make the point in the penultimate paragraph.

Okay. I agree very much with that.

29

Thomas Beale 05.01.18 at 10:27 pm

CB @ 26
Ah, well now you are talking about having a Proper Discussion of an ontological nature, and on that basis, I agree with your characterisation. But your post did not read that way, otherwise we would be discussing what ‘immigrant’ means.

Nevertheless, I don’t think it is unreasonable to agree on a common understanding of the term ‘illegal immigrant’ to mean a person living in a country he/she has entered without possession of a document or other claim (asylum) conforming to one of the legal bases for residence for that country. The extension of the term (i.e. the set of real individuals it covers) is mostly unequivocal in law – there is zero legal ambiguity in the case of the Windrush people for example – they are legal. There is also no ambiguity in law about friends many of us have – I have two, one from Serbia who is still ‘illegal’ and one from Lithuania who became legal by force of the accession of her country to the EU in 2004.

Moral arguments may produce different (perhaps better) results, but the presence of the term ‘illegal’ does pin the overall term down to its juridical meaning, not some more general philosophical one.

30

J-D 05.01.18 at 11:11 pm

If you build a system … with the value that it is better to let a few people past than to deny people rights to which they are entitled …

Reading that sent me to Wikipedia, which in turn sent me to the following:
http://www2.law.ucla.edu/volokh/guilty.htm
I am glad to have discovered that, so thank you.

31

Matt 05.01.18 at 11:21 pm

The standard (objective) meaning of the term is the one that matters in any serious conversation. Are you suggesting that it no longer be used because of the noise? I don’t think that can fly – losing such basic terms means one can no longer communicate normally.

I write and teach on immigration as part of my job, and basically never use the term “illegal immigrant” unless I’m quoting someone. If I need a general term, I typically used “unauthorized migrant”, which is, I think, less rhetorically loaded, but also more generally accurate. (If I understand the worst of the situation under discussion, as noted by Chris in 10 above, this wouldn’t apply to the people he mentions, as they are not “migrants” in any plausible sense.) Usage like the one I suggest common among people who are working hard to get things straight and not pre-judge cases. More specific terminology is also often needed to make further distinctions, such as whether someone (in the US) “entered without inspection” (somewhat different terminology would apply in other countries) or was “out of status” for some reason. In general, the broad and imprecise term “illegal immigrant”, in addition to having a bad rhetorical effect, is best avoided because it tends to obscure important legal (and sometimes moral) distinctions and lump unlike cases together. So, far from being necessary to “communicate normally”, the term impedes proper communication much more than it helps it.

32

Sebastian H 05.02.18 at 12:43 am

I feel like you’re muddling things up with the immigrant concept. The term is intelligible as used, and the negative connotations come from the political activity around the IDEA not the WORD. So I’m not convinced that working to change the word is going to improve things much.

In the US there is no such thing as “second generation immigrant” because they are “citizens”. I tend to think that is a just rule and I suspect you agree. Hell I think it is a nasty injustice that bunch of kids who have lived here since they were one or two are subject to deportation to a country where they don’t even speak the language. So I’m not really disagreeing on that basis. But lots of other countries don’t agree to give citizenship based on birth in the country, so calling such people “immigrants” isn’t particularly confusing.

But “immigrant” really is intelligible. In countries without birth/soil citizenship it means “non citizen here”. “Illegal immigrant” is also intelligible because ‘illegal’ is being used to mean ‘in violation of law’ not ‘in violation of criminal law’.

Your penultimate paragraph is excellent.

33

Ben 05.02.18 at 1:45 am

Chris, if you’re thinking more generally about how the bureaucratic focus on rooting out “illegality” of immigration might have negative consequences, you might be interested in a set of arguments by Bernard Harcourt about racial profiling that could be adapted to immigration.

One of the lines in Against Prediction (book, pdf) charts how the outcomes of racial profiling are affected by the profiling regime having different effects on different populations. There are trade-offs in police resources under a profiling regime, and consequently the non-profiled population is subject to less policing.

Low and behold, the increase in crime by non-profiled populations that are policed less under a profiling regime is larger than the amount of crime stopped in the profiled population.

In short: white criminals commit more crime when minorities are racially profiled (because they’re subjected to less policing), and the total amount of crime goes up.

It seems like this could be adapted to the UK immigration context. In instances where

– There are resource trade-offs when those processes try to root out “illegality” in immigration
– These trade-offs affect targeted and and non-targeted populations differently
– The non-targeted population takes advantage of the change in bureaucratic behavior

we would expect to see a focus on rooting out “illegality” having negative outcomes.

I’m not well-versed enough in the UK state or the practices of the anti-immigration efforts, but some obvious candidates for bureaucratic processes that might involve trade-offs are policing, courts, background checks, etc.

34

J-D 05.02.18 at 2:40 am

Sebastian H

In the US there is no such thing as “second generation immigrant” because they are “citizens”.

https://en.wikipedia.org/wiki/Internment_of_Japanese_Americans

35

dr ngo 05.02.18 at 4:50 am

Not my field at all, so please forgive my asking a naive semantic question. Someone (Thomas Beale?) above said this:

I don’t think it is unreasonable to agree on a common understanding of the term ‘illegal immigrant’ to mean a person living in a country he/she has entered without possession of a document or other claim (asylum) conforming to one of the legal bases for residence for that country.

The problem I have with this (and maybe its just me) is that as stated it is not clear whether the “illegality” pertains to the “living in a country” or the “has entered without . . . legal bases for residence.” IOW, if a person enters a country legally – as a tourist, student, whatever – and then stays beyond the stated limit of that legality, is he or she an “illegal immigrant” from the start (retrospectively?), or does he or she only become “illegal” the moment the clock strikes midnight on the last night of his or her permitted stay. If the latter, which seems the likelier interpretation, than it was not the “immigration” (movement across a border) which was illegal, but the staying. Only those who sneaked (snuck?) across the border unnoticed would be “illegal immigrants” in the strict sense. Much of this objection seems to be about “illegal stayers” – but I suppose this doesn’t have the same rhetorical ring.

36

Chris Bertram 05.02.18 at 5:43 am

@Sebastian H “immigrant” really is intelligible. In countries without birth/soil citizenship it means “non citizen here”.

You really haven’t thought this through, have you Sebastian? In the UK, by your definition of what “immigrant” means, someone born in the country to foreign nationals but registered as British by their parents would not be an immigrant, but someone whose parents are too poor to register them would be. And someone who moved to the country as an adult but naturalizes isn’t an immigrant by your definition, because they are no long a “non citizen here”? And someone who has their citizenship removed from them becomes an immigrant? I’m afraid that treating immigrant/citizen as some kind of exclusive binary results in too many absurd misclassifications.

37

J-D 05.02.18 at 6:53 am

Ben
An interesting suggestion. The possibility that occurs to me is that the more you focus the attention of the Department of Immigration and Border Protection on people arriving by boat, the more violations of the rules you’ll get by people who arrived by plane, a possibility that obviously hasn’t occurred to Ignatius Norant, consultant:

38

philip 05.02.18 at 8:26 am

It seems to me the burden of proof is key here. It is up to individuals to prove thy are legal rather than the government to prove they are illegal so in that sense there is no category of ‘illegal immigrant’ and Matt’s suggestion of ‘unauthorised immigrants’ sounds sensible to me. The way the term is used makes it seem that there is a clear distinction between legal and illegal immigrants and hides ambiguous cases. The people in the Windrush cases were unable to satisfactorily prove their legal status so were as ‘illegal’ as many other ‘illegal’ immigrants until the government decided they weren’t. In many ways an ‘illegal immigrant’ is anyone the government says is illegal (this is limited by human rights and EU law). So when a Home Secretary says they will be’ tough on “illegal immigration” and surely everyone can agree with that’, it hides what criteria are used to decide if someone is legal and how those criteria are judged and attempts to avoid that discussion. When someone does raise criticism it is then usually met with claims that they are open borders extremists that want to let everyone in.

I’ve never really thought about it before but it would be an interesting idea to swap the burden of proof so that there was a presumption that people had the right to be immigrants and it is up to the government to prov they don’t. Obviously it is not going to happen and would probably be too much of a burden on the Home Office. But what is needed is a fairer system for deciding if people have a legal status. In addition to the points Chris lists there is the policy of deport first and appeal later, which I think was brought into law by Labour but used by Theresa May.

The way ‘illegal immigrants’ is used has similarities with ‘bogus asylum seeker’ and ‘economic migrant’. No asylum seekers are bogus as by definition they are waiting for heir status to be determined and if they fail then they failed to provide satisfactory evidence for their claim, their claim is not proven to be false.

Having ID cards wouldn’t help as recent immigrants will have their passport and/or a biometric resident permit which are official ID. People who have been in the country longer and have no documentation to show their status will still have to meet evidentiary standards of the Home Office to get an ID card. Asylum seekers are given a credit card sized photo card but this is not official ID because part of determining their claim is verifying their identity so a compulsory ID scheme would further discriminate against asylum seekers.

39

Thomas Beale 05.02.18 at 8:57 am

FWIW, I agree with the criticisms of ‘illegal immigrant’ as a term. Just two things to note:

a) to get around the problem of ambiguity, wrong lumping etc, someone has to come up with a proper terminology / taxonomy /ontology of immigrant statuses (this certainly exists inside various rarified publications, and of course inside gov depts) and teach it to the public, and;

b) from that, some new term, say ‘unauthorised migrant’ will become the catchall phrase used in the public space, and over time, it will acquire a subjective meaning very close to that of ‘illegal immigrant’. This is guaranteed, because public discourse is highly emotional and ideological. So, back to square one. Not an easy problem to fix.

40

Dipper 05.02.18 at 9:02 am

The immigration fiasco demonstrates why outsourcing administration of government departments to companies such as Capita is a good idea.

The current arrangement creates a clear conflict of interest; when the Home Secretary speaks, are they speaking on behalf of the country? Or on behalf of the civil service? Outsourcing removes this conflict and makes it clear what the Home Secretary’s role is.

An outsourced company would in all probability have negotiated clear terms and conditions of what it was meant to do for its own protection, so targets would have been an explicit matter of public record. Hence the current arrangement whereby the Home Secretary can state one policy and then quietly ask the civil service to implement a different one could not happen.

Despite my banging on about mass immigration for the last couple of years, I believe the government should only be concerned about numbers as a secondary concern. The primary concern should be about defining citizenship and routes to citizenship whilst understanding what that is likely to mean in numbers if everyone takes up their rights. If numbers are a primary limit on access to citizenship then that will make one person’s right to citizenship dependent on whether other people have been granted citizenship, which is clearly not in accordance with any commonly accepted principles of justice.

@ Layman – 9 “Why must the person prove they have a right to be present?“ well because thanks to our membership of the EU without this about 500 million people have full access to UK public services without having to pay for them. This is not sustainable. An ID card with proper admin processes behind it means you wife has to prove her rights only once.

@ Raven Onthill 19 – these databases and associated risks already exist.

41

J-D 05.02.18 at 11:55 am

philip

I’ve never really thought about it before but it would be an interesting idea to swap the burden of proof so that there was a presumption that people had the right to be immigrants and it is up to the government to prov they don’t. Obviously it is not going to happen and would probably be too much of a burden on the Home Office.

What, you think it would be more of a burden on the resources of the Home Office than it is on the hapless individuals caught in its net? If it’s too great a burden for the Home Office to be expected to bear, then it’s surely too great a burden to impose on its victims.

42

Moz of Yarramulla 05.02.18 at 12:23 pm

It might help to think about the burden of proof if you imagine it being applied to absolutely everyone instead of just “them”. I wish the UK immigration people had done the decent thing and applied the instructions they were given without fear or favour, and specifically without regard to race or accent. Pick up some of those louts hanging round outside Eton, make them prove they have the right to be in the country. Pick up a few dementia patients as they roam the streets and ditto (you could greatly reduce the homelessness problem that way too).

Australia at least had the consistency to deport and imprison Cornelia Rau to demonstrate that their policy wasn’t as blatantly racist as Australian immigration policy normally is.

The whole “illegal immigrant” question is much easier to think about in Australia. There are almost no white people with legal status, only indigenous ones, because like the US Australia was founded on the basis that “indigenes aren’t human” so there was no negotiation, just genocide (the Doctrine of Discovery which means that those who argue that the US is a Christian nation are, strictly speaking, correct). Arguably the retroactive legalisation in Aotearoa could also be challenged on that basis – perhaps only those whose ancestors arrived *after* Te Tiriti o Waitangi can be considered legal immigrants.

43

Paul 05.02.18 at 12:41 pm

Pretending that this term is not absolutely electric with political connotations is absurd. There are issues with who exactly it is supposed to label, yes, but more importantly still there are deep issues with what it is used to do. Of course, you can’t get rid of the attitudes and feelings it carries by banning the term; but you can recognize that it is inextricably bound up with those attitudes, and decide that you don’t want to use it if you don’t want to endorse those – and that institutions that shouldn’t be taking an implicit position in the defense of those attitudes shouldn’t use it either.

44

Sebastian H 05.02.18 at 2:50 pm

“I’m afraid that treating immigrant/citizen as some kind of exclusive binary results in too many absurd misclassifications.”

The funny thing is you raise all sorts of objections about the edge cases, none of which result in absurd classifications for the purpose under discussion—deciding whether or not someone is authorized to stay in the country.

Case 1. Child born to foreign nationals but registered as British. She’s a citizen.
Case 2. Child born to foreign nationals but not registered as British. For purposes of determining authorization to stay, she’s an immigrant.
Case 3. Person who naturalizes. Citizen. They might be an immigrant in some tracking sense, but for the purpose of determining legal right to stay they are a citizen with complete right to stay. And certainly not under the you don’t like “illegal immigrant”.
Case 4. Definite edge case. Citizenship removed. I don’t know that I have any idea how that works with someone who wasn’t an immigrant. I guess is rich people renouncing their citizenship a thing? But if found in country without other permission they’d be illegal immigrants for purposes of determining whether or not they can stay.

Sure you COULD have a different name for each of those things. But the political phrase “illegal immigrant” hasn’t done anything to make those cases confusing. Case 1 citizenand legal immigrant. Case 2 illegal immigrant. Case 3 citizen or legal immigrant. Case 4 non citizen, probably illegal immigrant for deportation purposes but further investigation needed.

Now I agree with you that it is an injustice that case 1 and 2 come out differently. But that is function of bad law, not bad terminology. Literally WHATEVER YOU CALL case 2, unless you change the law they are still likely to get deported if found out under a regime where immigration controls are a big deal. By all means work to get the law changed. But trying to convince people that illegal immigrant is confusing doesn’t strike me as a useful way of doing it, especially since by all indications people do understand that naturalized immigrant citizens aren’t illegal immigrants and when they use the term.

What you want to argue is that classifying case 2 as an illegal immigrant is unfair.

45

Layman 05.02.18 at 4:34 pm

Sebastian H, my wife is a naturalized US citizen, which is to say that she is both a ‘citizen’ and an ‘immigrant’. She is one of millions of such people. Do you disagree with this? If not, does this not make it clear to you that ‘citizen’ and ‘immigrant’ are not mutually exclusive?

46

Layman 05.02.18 at 4:38 pm

Adding to this, you write: “…none of which result in absurd classifications for the purpose under discussion—deciding whether or not someone is authorized to stay in the country.”

Is an immigrant authorized to stay in the country? Well, sometimes they are, sometimes not. Some are citizens. Some are not yet citizens, but have permanent permission to reside. Some do not have permanent permission to reside, but have a temporary permission to reside for perhaps years. Some do not have permission to reside but have requested that permission. So ‘immigrant’ tells you nothing at all about whether someone is authorized to stay.

47

Philip 05.02.18 at 4:43 pm

Sebastian, how is the child in case 2 an immigrant if they haven’t migrated from anywhere to anywhere else?

48

Chris Bertram 05.02.18 at 5:59 pm

Sebastian, “immigrant” isn’t a legal category, so trying to make the law determinant of the classification just because you’ve decided (for unfathomable reasons) that citizen/migrant is an exclusive binary is a pretty hopeless move. Sometimes “immigrant” is a sociological category, and no way of carving up the world remotely conforms to the way you want to divide things. Suggest you stop digging.

49

engels 05.02.18 at 8:29 pm

I thought the binaries were immigrant/native, citizen/alien, but perhaps it’s more complicated…

50

Moz of Yarramulla 05.02.18 at 10:04 pm

Not to mention all the countries that have legal powers to remove citizenship, even from non immigrants, and deport people (Australia does this, I believe both the UK and US do too). Plus the ones who don’t bother with definitional quibbling before sending people off to be tortured or killed (Australia and the UK again, but the US is probably more notorious for it).

Does someone become an “illegal immigrant” if their country of citizenship and birth strips them of citizenship and begins to deport them, but they have not yet been removed?

51

Matt 05.02.18 at 11:12 pm

Problems with terms like “immigrant”, “citizen”, “migrant”, “alien”,
“refugee”, etc. are compounded by the fact that they are used differently both in popular discourse (where there are often no clear rules for their use at all, a problem on its own), and in different “technical” discourses (so, they are often used differently in sociology and law, for example, and philosophers tend to not follow any of these, and more or less make up their own usages, which are not consistent between different philosophers.) This is all made worse by the fact that, even in the law, different legal systems break things up in different ways for different reasons. (That is, it’s not just that a person born in a country would be a citizen in one country but not another, for example.)

In the US, for example, a person is only legally an “immigrant” if they have been “admitted for permanent residence”. Everyone else who is not a citizen is a “non-immigrant” of one sort or another, where this can include people who are authorized, unauthorized, and some sorts of complicated middle categories. That’s pretty confusing if you don’t know what is being said, but clear enough if you know. As far as I can tell, that usage is idiosyncratic to the US, but almost always messed up in popular discourse in the US.

The search for general, system-neutral terminology is almost certainly impossible, though it’s often easy enough to tell if people are using terms in confused or unclear ways. It’s also often easy to know if people are using terms in loaded ways to make rhetorical rather than legal, moral, or logical points, though not always. (I’ve seen lots of well-meaning people use “illegal immigrant” without knowing that it’s not a legal term and otherwise problematic. Kevin Drum is a good example of this.) Probably the best thing to do is to just try to be clear in our own writing and speaking, defining terms when needed, try to be consistent, and be careful as to the basis of our criticism of others, perhaps especially where criticism is important and warranted.

52

Sebastian H 05.03.18 at 6:36 am

I pretty much agree with Matt. There seems to be some confusion about the target audience. “Illegal immigrant” is a term of political discussions, not law book definitions. It is shorthand, and unlike a lot of political shorthand it isn’t very confusing in the sense that both sides have a pretty clear idea of what is being talked about.

The political discussion of your penultimate paragraph is that we need more due process in identifying who should and should not be subject to deportation. I.e. who is an illegal and who isn’t. That point is the same no matter what terminology you use.

You also want to argue that some people who are currently classified as illegal shouldn’t be (especially case 2). That point is also the same and perfectly intelligible using the common “illegal” terminology.

Sometimes you can’t make the political point you want to make without changing the terminology. Then you have to fight the terminology. This isn’t one of those cases. As such, fighting over the terminology becomes more in group/out group signaling than a productive use of political energy. That hardens positions rather than changes them.

53

Gareth Wilson 05.03.18 at 9:01 am

I’ve been trying to consistently use “megatrespasser” myself.

54

philip 05.03.18 at 10:40 am

@Sebastian, when you say ‘ it isn’t very confusing in the sense that both sides have a pretty clear idea of what is being talked about.’ that is true if by both sides you mean Conservative and Labour. They both have had policies based on the same premises of wanting immigration of people who ‘ can contribute to society’ i.e. are not poor and legal claims for others to have leave are seen as a hindrance to be got around. I’m not too sure what Labour’s policies would now be if they came to power as at the moment they seem to mainly be criticising the Tories while ignoring how they have built on the framework created by Labour. An illegal immigrant then becomes anyone to whom the government can deny a legal status, whether that is fair or not and this obscures the common sense understanding of the term. Windrush cases were being denied a legal status until they were covered in the media and tried in the court of public opinion so the government decided they were no longer ‘illegal’.

This point is also wrong ‘. . . we need more due process in identifying who should and should not be subject to deportation. I.e. who is an illegal and who isn’t. ‘ The legal process is to judge if someone has a legal status not to prove they are illegal. This is why the term is not good as it prejudges people’s status which may be contested.

I think the political discussion is too narrow and there should be a broader debate about how and why people are given legal status. There are more than two sides to this and it is the way the two main parties set the terms of the debate and ignore criticism outside of those terms that is the problem.

55

Mike-SMO 05.04.18 at 10:21 pm

I try and avoid the abbreviation “illegal” and spell out “illegal alien job, benefit, and vote thieves”. I am looking for a concise phrase that brings in “carriers of communicable diseases”. [CDC Disease Map: Human/Imported…..] The CDC is warning about insect transmitted diseases without mentioning where the diseases come from and in.

I annoyed some friends returning from the “Left Coast”. “…homeless everywhere….” to which I noted that if the Coastal Commissars were not using all the resources to support the illegal alien “voters” and warm bodoes for the Census, and cheap labor for the Elite households, then there would be a lot more available for those Americans under the bridges.

I don’t think that I am on that invite list any longer.

Comments on this entry are closed.