Border-Crossing: Immigration Law,Racism and Justified Resistance

Abstract

Aside from the case of refugees under international law, are non-citizen outsiders morally justified in unlawfully entering another state? Recent answers to this question, based on a purported right of necessity or civil disobedience, exclude many cases of justified border-crossing and fail to account for its distinctive political character. I argue that in certain non-humanitarian cases, unlawful border-crossing involves the exercise of a remedial moral right to resist the illegitimate exercise of coercive power. The case accepts, for the sake of argument, two conventional assumptions among defenders of immigration restrictions: that states have a ‘right to exclude’ and that migrants have a prima facie duty to respect borders. Nonetheless, where immigration law is racist or otherwise discriminatory, it violates the egalitarian standards at the core of any authority it can plausibly claim over outsiders. In such cases, it may be resisted even where the law is facially non-discriminatory.

Many people cross state borders each year in violation of national immigration laws on admission and residence. There are some who scale walls, enter by land or boat, or use fake identify documents. Many more cross ‘internal’ borders by overstaying their visas having entered the territory through the official channels (Andersson, 2014: 5). The prevailing attitude in prosperous democratic societies, such as the US, Australia and many European countries, characterises these actions and indeed persons as ‘illegal’, and so worthy of moral blame and stigma. ¹ Even voices on the liberal left who reject stigmatising language tend to agree that unlawful entry illegitimately usurps a state’s right to decide who gets admitted onto its territory through legal immigration schemes. This raises some pressing moral and political questions. Aside from the case of refugees fleeing persecution, whose special claims are recognised in law (even while states systematically fail to live up to their responsibilities), is it justified to unlawfully enter another state? Do non-citizen outsiders have duties to respect the immigration laws of a foreign state? Is there a moral right to cross borders and, if so, what is the grounds for such a right given it is not found in international law?

The fact people from all walks of life do move to other states despite legal prohibitions on their doing so and the fact such people do not show a general inclination towards law-breaking suggests a certain scepticism towards the authority of immigration law in particular – or at least towards certain types of immigration law. A survey of Mexican border-crossers into the US, for instance, showed that they do not necessarily question a state’s right to control immigration in general. However, many believe that the US immigration system is especially unfair towards Mexicans and discriminates in favour of light-skinned migrants (Ryo, 2013). The charge that entrenched racism pervades the border-making policies of wealthy destination states is likewise levelled by pro-migrant activists (e.g. Right to Remain, 2020). They contend that the ongoing legacy of colonial ideologies of racial hierarchy influences the operation of facially non-discriminatory borders controls, robbing these controls of legitimacy.

In this article, I defend the coherence of this position and offer a normative theoretical argument that vindicates its. I argue for a moral right to cross state borders in violation of immigration laws in cases where those laws violate the procedural standards that provide the most plausible basis for the law’s authority in relation to non-citizen outsiders. This is the case where exclusionary immigration law is the product of a political process that fails to show due regard for the equal moral status of would-be migrants due to the influence of overt and covert form of discrimination. Even laws that are facially non-discriminatory, refusing entry on the basis of skills and other individualistic criteria, can be both the product of and a contributor towards racism. In such cases, I argue, unlawful border-crossing should be understood as the exercise of a remedial moral right to resist the illegitimate exercise of coercive power. In making this argument, I do not presume a universal moral human right to move freely between the world’s countries, as some philosopher argues for (Carens, 2013). Nor do I rely on a particular theory of global justice regarding what is owed to the economically worst-off groups around the world (Oberman, 2015). The argument I offer is cosmopolitan in the minimal sense that it builds upon a foundational moral commitment to the equality of all human beings worldwide regardless of race, gender and other ascribed characteristics.

As a starting point, the argument concedes two assumptions that underpin a prominent view towards the phenomenon of unlawful immigration among the citizens of prosperous destination states. First, that states enjoy substantial discretionary rights over who to admit onto their territory (the so-called ‘right to exclude’). And, second, that there is a general prima facie duty on individuals to respect the immigration laws of states that they are not a member of. There are good reasons for contesting these premises, which normative theorists have called attention to (Carens, 2013; Hidalgo, 2015), but I accept them here for the sake of constructing an argument that those who take the more prevalent pro-borders position might accept. My aim is to show that it is possible to affirm a moral right to cross borders in a great many cases, consistent with a set of common, conventional assumptions about the rights and obligations of states and migrants. Unauthorised entry can be defended, even in the case of non-humanitarian migration that is motivated by economic opportunities, family ties and other reasons from a position purportedly hostile to all ‘illegal immigration’. The argument thus offers an alternative and potentially more expansive justification for noncompliance with immigration law to existing discussions that focus on the threat border enforcement poses to the human rights of would-be migrants (Blunt, 2019: chap. 4; Hidalgo, 2015).

In section ‘Mobility Rights and State Sovereignty’, I offer an overview of the mobility rights that citizens and different categories of migrants presently enjoy under international law. In section ‘Migrants and Political Obligation’, I assess various moral grounds for the idea that individuals have an obligation to respect the immigration laws of foreign states, arguing that this duty is best interpreted as a procedural duty to respect the democratic decisions of a foreign state out of respect for a political process that treats its members as equals. In sections ‘Border-Crossing as Necessity’ and ‘Border-Crossing as Civil Disobedience’, I assess two possible argumentative routes for justifying unlawful border-crossing: as an act of necessity and as civil disobedience. These two approaches are not so much false as incomplete, since they fail to capture many cases of justified border-crossing or else imply unnecessary prescriptions for how law-breaking should be conducted. In sections ‘The Contingent Authority of Immigration Law’ and ‘Racism in Immigration Policy’, I argue that unlawful border-crossing is as an act of justified resistance to exclusionary immigration laws where such laws are constructed and enforced in ways that are racist or otherwise discriminatory, failing to show regard for equal moral status. In section ‘The Conduct of Resistance’, I consider the permissible conduct of resistance and the duties of citizens of receiving states.

Mobility Rights and State Sovereignty

In recent years, states have adopted increasingly sophisticated and repressive measures to enforce control over their borders (Andersson, 2014). Those found to be on a state’s territory without the proper legal authorisation or who are found attempting clandestine entry risk prolonged periods in repressive conditions of detention and deportation and they may even be subject to criminal sanctions. According to a number of liberal political philosophers, such as Joseph Carens, the very existence of coercive immigration controls contravenes a human right to freedom of movement between states grounded in the value of individual autonomy (Carens, 2013; see also Oberman, 2016). It is not, they suggest, merely that existing border controls violate human rights by virtue of the repressive way in which they are enforced. Rather, the very act of using coercive state power to decide who can enter a territory (outside of an exceptional situation) violates a human right to migrate.

If we take this position, it is not difficult to see how we could arrive at a right to unlawfully cross borders. Nearly all existing states would be in breach of human rights through the mere act of enforcing exclusionary immigration controls. In secretively defying these controls, migrants would be availing themselves of a morally justified human right to freedom of movement, which has been legally denied to them, in the manner that other liberal freedoms, such as freedom of speech, religion and association, were often first exercised in defiance of the law prior to being legally recognised by states (Tilly, 2004). The autonomy-based argument for a universal right to free movement has of course been challenged on philosophical grounds (Miller, 2005), while it is barely permitted a hearing in mainstream public debate on immigration. For the purposes of this article, I do not claim that exclusionary borders themselves necessarily violate rights. Instead, I start from the international legal position that states enjoy a right to exclude.

A number of normative theories have been proposed to account for this widely accepted feature of state sovereignty. For David Miller (2005) and Michael Walzer (2008: 63), it is an expression of the nation’s right to shape its future character and the development of its cultural identity over time. According to Michael Blake (2019), it is a means for states to safeguard their citizens from the unwanted obligations imposed upon them by the arrival of outsiders, while for C.H. Wellman (2008) discretion over admission to a state should be understood as an expression of the political community’s associational rights to decide with whom it enters into relations. The right to exclude is not typically conceived as absolute. Proponents typically accept that in certain cases (most importantly refugees) there are moral considerations that can over-ride it. Nonetheless, the right to control access to a territory is regarded as an important component of democratic self-determination. This assumption frames mainstream political discussion of immigration policy in most states and is rarely challenged even by those advocating for more inclusive border policies (Haltiwanger, 2019).

Nonetheless, endorsing the conventional view of a right to exclude does not settle the question of whether migrants are morally bound to respect borders. It merely tells us that states are entitled to pass exclusionary immigration laws; that it is within their proper domain of jurisdiction as sovereign states. We still need to know whether non-citizen outsiders are under a moral duty to obey the laws that exclude them. One view, proposed by Caleb Yong, is that we should think about the moral status that a state’s immigration law has vis-à-vis would-be migrants in terms of that state’s ‘international legitimacy’. Legitimacy, for Yong (2018), is understood as a normative (rather than descriptive) concept that refers to the distinctive type of authority claim states have in relation to external agents. He argues that internationally legitimate states – which includes at a minimum constitutional democracies – possess a sovereign right to ‘political independence’ (Yong, 2018: 22) in the formulation of domestic public policy, including immigration policy. Other states and their members, he suggests, have a correlative duty not to interfere with this sovereign right of political independence. Yong contends that certain immigration laws passed by legitimate states – namely, those that violate human rights law – are not binding on outsiders, but he believes that other immigration laws are. By violating such laws, he suggests, unauthorised migrants wrongfully interfere in the receiving state’s sovereignty.

The difficulty with Yong’s account comes in the conceptual leap required to identify individual acts of unauthorised migration as acts that interfere with a state’s sovereignty. Does a citizen of Malawi who over-stays his visa in France really interfere with French sovereignty? This looks hyperbolic. There may be cases where mass, concerted violation of a state’s immigration laws interferes with sovereignty. In 2016, for example, the top commander of NATO in Europe claimed that Russia was ‘weaponising migration’ in Syria against European states through the use of indiscriminate bombing (BBC News, 2016). Presuming we accept this characterisation, however, it seems that any interference with the sovereignty of European states was on the part of Russia, rather than by the individual migrants themselves. At the heart of the issue is that the international doctrine of state sovereignty and the corresponding norm of non-interference applies to states with the intention of preventing war between them, as reflected in the opening words of the UN Charter. It is not meant to regulate the conduct of private individuals to ensure they comply with foreign states’ laws, which helps explain why – though frequently maligned – foreign criminals are not usually described as a ‘threat to sovereignty’. This points to a further worry with Yong’s approach: by describing individual acts of unauthorised migration as undermining sovereignty, we would be placing them in a category of actions that usually threaten war, handing those who demonise irregular migrants a powerful rhetorical tool. Instead, to get a grip on the question of whether outsiders are morally bound to obey immigration laws, we need to consider the question of what could possibly ground an individual’s obligation to obey the law: the question of political obligation.

Migrants and Political Obligation

The question of political obligation is the question of whether or not there is an obligation to obey the law that arises from the mere fact that it is law, rather than on account of moral reasons (to do with the law’s content) or prudential reasons (to do with getting caught). Some philosophers have argued that we have a general content-independent obligation to obey the law derived from a more basic duty of fairness towards fellow members of the political community (Hart, 1955: 185). This theory draws upon a conception of society as a system of social co-operation, which secures mutual benefits for its members, and which each must play their part in upholding. The law instantiates the over-arching rules that facilitate social co-operation. By breaking the law, then, while accepting its benefits, we are free-riding off the compliance of others in violation of a duty of fair play.

Yet, granting for the purposes of argument that the principle of fairness has such implications, it is hard to see how this applies to the case of unlawful migrants who are not engaged in the relevant co-operative relations within the excluding state. Perhaps refugees granted the protection of asylum and enjoying the benefits of surrogate membership may plausibly come to acquire such obligations, while migrants outside the territory may aspire to become citizens so as to co-operate in a joint scheme. Yet, a duty of fair play could not apply to them before entering the territory or while living on the fringes of society without the benefits of legal standing. ² The same problem besets theories based on associative obligations, which posit obligations towards one’s fellow citizens to obey the law by virtue of the intrinsic value of belonging to a political community (Horton, 2010). Since unauthorised migrants are not members of the relevant association, they cannot have such obligations.

A potentially more promising route is provided by consent theories which, at first sight, speak to the dimension of active choosing involved in migrating to a state. For consent theorists, obedience to the law derives from our having given our voluntary consent to it which occurs either through express consent, as with naturalisation ceremonies, or through tacit consent (Locke, 1988: 347–348). The notion of tacit consent is thought to be relevant to the (far greater number) of people who do not take part in formal consent-giving activities. By choosing to live within a state, and by taking advantage of the protection of its laws, such individuals are said to signal their voluntary agreement to obey those laws. Tacit consent is typically understood to require that agents know they are consenting and do so autonomously, in that their action is unforced and they have reasonable alternative options (Simmons, 1981: 79–83).

Express consent is of course most relevant to those migrants who decide to become naturalised as citizens. But what about non-citizens? In the case of migrants who enter through the official channels, exercising a deliberate choice of where to live among a number of reasonable alternatives, it is not inconceivable to think tacit consent is involved. Indeed, insofar as tacit consent applies to anyone at all, it is surely this group of lawfully resident non-citizens who – unlike those merely residing in the state they were born in – have at least made a conscious choice. A much harder case is those who enter unlawfully. We can, I think, discount those who are being driven to migrate by natural disasters, war and other circumstances. Although these ‘forced’ migrants retain some agency over whether and where to move, their choices surely fail to meet the threshold of autonomy required to designate them an act of consent.

This leaves our central case of the would-be migrant who lacks the legal authorisation to enter a state and who is deliberating over whether to cross its border when they could reasonably stay at home. I assume that the mere act of deliberating over whether to migrate, which is a private act performed in their home state, could not count as consenting to the destination state’s laws. Once they act on their deliberations and enter the state unlawfully, it is indeed the case that they have deliberately placed themselves under the subjection of the state’s laws in a way that those who are citizens by accident of birth have not. The problem, however, is that for this individual, the very act of moving to the state – an act that is supposed to signal obedience to its laws – involves transgression of those same laws. If this is an act of tacit consent, it looks like a performative contradiction: we cannot plausibly interpret ‘not x-ing’ as a commitment to ‘x-ing’. Consent, it seems, cannot play the desired role.

The difficulty the preceding accounts of political obligation face is that they assume some kind of special relationship between the state in question and the purported obligation-bearer of the kind ordinarily associated with membership. An alternative approach, based on a natural duty of justice, would seem to get around this problem. This is because the relevant duty is understood as a universal duty that individuals have as moral persons irrespective of citizenship. The natural duty of justice requires all of us to support and uphold institutions that are reasonably just where such institutions exist and to help establish them where they are absent (Rawls, 1999: 293–294). The link between the natural duty of justice and political obligation depends upon the thought that by breaking the laws of a reasonably just state, we attack the authority of its political institutions and bring them into disrepute, undermining their capacity to enforce moral rights and obligations.

Now, one can envisage extreme scenarios where the numbers of people moving to a state are so great that its capacity to provide services such as health, education and welfare is threatened, undermining the capacity of the state to act justly. In such a scenario, the natural duty of justice may require that would-be migrants avoid moving to the state in question. The difficulty, however, comes in motivating a general account of political obligation from such a scenario (Raz, 1986: 102). In other types of case, the effect of unlawful migration may be the reverse. By choosing to move to a reasonably just state, migrants may enhance the esteem of its institutions by implicitly communicating that its political order is more just to their home country. Arguably, this occurred with the large numbers of people who left the Soviet bloc for Western European states during the Cold War, which was treated as powerful evidence that liberal democratic states did a better job in protecting rights. Yet, irrespective of these contingent effects, it is commonly accepted by proponents of a natural duty of justice that the duty may require intentional acts of law-breaking to challenge serious injustice through civil disobedience and resistance (Rawls, 1999: 6). This leaves open the possibility of principled disobedience to immigration laws in cases where those laws exceed a certain threshold of injustice, as I go into discuss.

The final theory of political obligation I consider focuses not on the substance of the state’s laws, but its source in a process of democratic law-making. A prominent view holds that there is an obligation to obey democratic laws which are the outcome of a fair constitutional process in which all adult members have an equal opportunity to influence the result (Christiano, 2008; Waldron, 1999: 109–114). By respecting the law, I respect my fellow participants as equals in the democratic process without elevating my own judgements above theirs (Waldron, 1999: 109). An obvious difficulty this poses is that prospective migrants lack the right to vote on immigration laws. Why should they respect a decision to exclude them over which they have no say? Appeals to co-authorship of the law are inapt here. Yet, the democratic provenance of the law might nonetheless be relevant. A case can be made that we ought to respect a collective’s decisions on account of their having the appropriate democratic procedural qualities, even if we are not included in those decisions. By respecting the group’s democratic decisions, we demonstrate respect for their efforts to achieve a fair process among themselves that treats the group’s members as equals.

Take the example of a self-governing tennis club where new members are admitted following a majority vote by existing members. As an enthusiastic player, Alex is keen to join. The club considers Alex’s application and decides to reject it. Perhaps the club is near capacity or his skills are not quite up to scratch to make it fun and competitive. Though disappointed, Alex recognises the group’s attempts to set the rules of the club in a fair way among themselves and decides not to duck in to use the courts uninvited. An analogous case can be made in the case of a foreign state’s laws from the perspective of the conventional position. By respecting a foreign state’s laws, which have been arrived at through a democratic constitutional process, we respect its citizens and their attempt to decide their shared fate in a manner that treats each as political equals. We show ‘recognition’ respect for their standing as moral persons whose views count in the determination of how they are treated, including in determining who lives among them (Darwall, 1977).

However, this is far from being the end of the story. Any obligation to respect the immigration laws of a foreign democratic state – whether one grounded on the natural duty of justice or respect for democratic equality – is only presumptive. There will be cases where it is over-ridden. Consider first the case of internationally recognised refugees. International law contains no explicit legal right for refugees to enter another state in violation of its domestic laws. But under Article 14 of the Universal Declaration, those facing persecution have the right to ‘seek’ asylum in another state, while Article 31 of the Refugee Convention forbids states from penalising asylum seekers for having crossed the border without permission. The implication is a right for internationally recognised – or ‘Convention’ – refugees to circumvent established domestic entry requirements in order to present themselves for asylum on the territory of another state (Hirsch and Bell, 2017). The use of interception and ‘push back’ on land or sea, along with the various other draconian methods used by states to prevent refugees from claiming asylum on their territory, are a clear violation of the moral rights of refugees and – according to many legal authorities – also a violation of their legal rights (Frelick et al., 2016).

In this case, international law acknowledges that the fundamental interest human beings have in being free from violence and oppression from their own state outweighs another state’s right to exclude. Yet, what about those whose life is under threat not from persecution by their state of origin, but from life-threatening poverty? As a matter of law, they do not count as refugees. In moral terms, however, if someone is suffering starvation and they can save their life by crossing a border, it seems morally perverse to say they should not. If we did, we would be expecting them to weigh respect for another state’s laws derived from abstract considerations of democracy and justice over their own concrete survival. Yet, what could be the basis of a right to enter without permission given that those escaping life-threatening poverty are not refugees under the Refugee Convention? This is the question I turn to next.

Border-Crossing as Necessity

A case of necessity is one where an agent intrudes into the rights of others to avert a moral disaster, in the absence of less harmful alternative options. A classic example is the hiker on a mountain top who is exposed to a dangerous storm and must take shelter in a hut without its owner’s permission in order to save her life (Feinberg, 1978: 102). A verdict of necessity affirms that a genuine right has been transgressed, but that the hiker did so with justification in circumstances where any other reasonable person would have done the same. It is possible to construct such a defence for migrants fleeing extreme, life-threatening poverty. Alejandra Mancilla argues that a right of necessity is a moral implication or ‘expression’ of existing international human rights to subsistence, such as the rights to ‘food, clothing and housing’ in Article 25 of the Universal Declaration of Human Rights (UDHR), just as the right to self-defence can be seen as an implication of the right to bodily integrity. ³ The right of necessity allows a chronically deprived agent to secure subsistence rights, she suggests, by taking and using the resources of the better-off, but also potentially through transgressing territorial controls to access a place they can secure such resources through their own means (Mancilla, 2016: 4, 113).

In Haiti, to take one example, around 1 million people are classified as facing an emergency situation due to a severe lack of food in a context of high unemployment, crop failure and deep-seated political corruption (World Food Programme, 2019). By illegally entering the US, an impoverished Haitian can access economic opportunities to provide for themselves and send much-needed remittances back home. A necessity claim would imply that they acted with justification, protecting them from any legal consequences for their actions, and any corresponding stigma. The moral case for a right of necessity is appealing. It refers to the fundamental interests – in food, clothing and shelter – which are present in international human rights law and speaks to a universal vulnerability, offering a powerful basis for moral concern across cultural and national barriers. An additional feature of the necessity framework is the comparative lack of restrictions it places on unlawful entrants. It is not required, for instance, that the destination state in question is liable to illegal immigration as a result of their historic responsibility for injustices that contribute to global poverty. Instead, the question is a purely practical one of which states offer the best opportunities for survival.

Yet, the moralised character of the necessity framework – its humanitarian logic – is also a limitation. It calls our attention to extreme suffering where life is at stake and asks what urgent measures can be taken by way of response. It therefore says little about the background relations of power and inequality that give rise to severe poverty and the need for millions of people to migrate in the first place (Blunt, 2019: 68–70). Rather than political agents, unauthorised migrants under this framework risk being cast as victims of misfortune. The right of necessity is also of limited scope. Many of those entering and residing in states without permission cannot be said to face any immediate threat to their lives. Indeed, those in the most severe forms of poverty are often least able to move. By contrast, take the case of an Indian taxi driver who enjoys an above subsistence income working in his home state, but could gain a four-fold increase by moving to the US without permission to do the same work. ⁴ What can be said of such cases? In the next section, I consider a normative framework that addresses non-humanitarian cases and more explicitly foregrounds the political dimension of unlawful border-crossing.

Border-Crossing as Civil Disobedience

According to the most influential strand of philosophical thinking, citizens may engage in principled acts of law-breaking as a means to call attention to and correct serious injustices with the expectation that they observe certain normative constraints, such as acting publicly and nonviolently and without evading arrest. ⁵ While theorists have tended to assume a domestic political context of nation-states for civil disobedience, recent contributions have sought to identify a space for principled law-breaking, including violations of immigration law, based upon emergent trans-national and global norms of citizenship (Celikates, 2019; Smith, 2017). Drawing upon interviews with clandestine border-crossers into the US from Latin America, Luis Cabrera (2010: 7) proposes that those who migrate from the Global South for economic reasons ‘act in general fidelity to an emerging normative charter grounded in state-transcendent rights, even as they violate laws against unauthorised entry’. He notes how, in accounting for their actions, many unlawful border-crossers make reference to human rights to economic goods and see their actions as a response to an unjust global economic system.

The characterisation of economic migration as civil disobedience calls our attention to the political demands of the world’s poor as disenfranchised agents. In contrast to the more humanitarian discourse of necessity, it foregrounds unlawful migrants as active participants in national and international debates over what is owed to the world’s less well-off groups, countering the tendency to view migrants as merely opportunistic, breaking the law to ‘get ahead’. Crucial to civil disobedience is the idea of generalisability: disobedient agents do not assert an exemption from the law for themselves alone, but demand that all those similarly situated be relieved of the law’s unjust burdens. Some violations of immigration law undoubtedly fit this framework. In one protest, migrant activists with no formal residency status organised a ‘March to Freedom’, from Berlin to Brussels, in which they openly walked across the borders of Schengen member states, to highlight their plight to the media before disrupting an EU meeting on immigration (Nigg, 2015). Although not specifically aimed at entry controls, the case of so-called ‘Dreamers’ in the US who publicly ‘outed’ themselves as undocumented migrants in the context of a national campaign for amnesty shares features with civil disobedience (Lister, 2018).

Nonetheless, there are problems in attempting to fit most cases of unlawful entry to the practice of civil disobedience as an act that is public and communicative, as William Smith has argued (Smith and Cabrera, 2015). In particular, unauthorised migrants usually wish to evade any attention when entering and residing on a territory given the serious danger of detention and deportation. In theorising civil disobedience, philosophers have identified certain desirable political virtues with concrete forms of behaviour connected to the act of law-breaking. With unlawful migration, it is possible to imagine some of these virtues being exhibited through alternative modes of comportment more appropriate to their situation. For instance, acceptance of arrest and punishment for civil disobedience in traditional accounts can be understood as a means to convey sincerity and moral seriousness. One can imagine a parallel role being performed by the courageous efforts many unauthorised migrants make to reach their destination state, braving hazardous terrain, exploitation by criminal elements and state repression.

However, there remains a basic disconnect with the core of civil disobedience, as involving some minimal effort to address power-holders and convey opposition in light of its instrumental justification in pursuing reform. Ultimately, the label of civil disobedience brings with it a set of normative expectations upon the conduct of political law-breaking that it would be inappropriate to place on migrants and which may even lead unwitting supporters to draw unwanted public attention to their actions. An alternative approach understands certain acts of border-crossing in less stringent terms as an act of resistance to illegitimate power.

The Contingent Authority of Immigration Law

Although there is no specific legal right to resistance found in international human rights law, the Preamble to the UDHR holds out the prospect of ‘rebellion against tyranny and oppression’ and a number of states invoke the right to resistance in their domestic constitutions. Over the latter half of the twentieth century, the right to resistance was referenced in a number of international legal texts in the context of the struggles against race-based colonialism and apartheid in Southern African countries (Blunt, 2019: chap. 2). Racial domination and exclusion were rightly identified as grave evils, a remedy for which is illegal action by those affected to defend themselves. Importantly, for the case in hand, resistance extends to interventions that lack the distinctive normative core of civil disobedience, since the aim is not necessarily to change people’s minds about some injustice, but to escape the burdensome effects of unjust laws and frustrate their operation. ⁶ It thus includes illegal actions that are carried out in secret and where the agent deliberately evades arrest, as for example with resistance to military conscription or nonpayment of an unjust tax.

The violation of racist and otherwise discriminatory immigration law qualifies as justified resistance to the illegitimate exercise of coercive power. I earlier noted how we might make sense of the prevalent view in popular discourse that, other things being equal, non-citizen outsiders have an obligation to obey the immigration laws of a state they have no formal relationship with. The most plausible interpretation of this obligation, I suggested, gives it a procedural democratic basis as the respect we owe to the constitutional decision-making process of a foreign state, as an expression of respect for its members. The relevant form of respect here is ‘recognition’ respect, which acknowledges the equality of all human beings as persons irrespective of citizenship or any positive appraisal of their merit (Darwall, 1977). In abiding by the immigration processes of a democratic state, I respect the efforts of its citizens to achieve self-government and legislate in a manner consistent with their equal moral worth. However, the egalitarian considerations that provide a reason for compliance with border controls in one context, provide a reason for resisting them in another.

Recall the case of Alex who is refused membership of a self-governing tennis club on the basis that the club was near capacity or else his skills were not at the right level. While everything from the location of the club to the quality of the courts was ideal for Alex’s purposes, he accepts his exclusion out of respect for the views of the club’s members as reflected in their decision-making process. Now consider an alternative scenario where Alex learns that he is being rejected from the club because he belongs to a racial group deemed undesirable. While the club continues to cite the legitimate reasons given, he overhears the members expressing derogatory racial remarks about him during their deliberations. They make assumptions about his inferior abilities, judging he will be difficult to get along with and not pull his weight in maintaining the club, based on scraps of racial stereotypes. All the while, the club continues to admit new members that match its own racial make-up. In this case, the club’s decision to exclude Alex expresses hierarchical racist attitudes that are morally degrading. These attitudes are a violation of the value of equal respect that provides the basis for any respect Alex owes to the club’s deliberations. If he snuck in to use the club’s courts one evening, they would have no grounds for complaint. He may of course be wise to avoid uninvited games of tennis on the prudential grounds that he may get caught. But the club’s members cannot object on the basis that he is violating their authoritative decisions over who gets access to the courts since the authority of those decisions is void.

There is likewise no expectation of a duty of obedience being owed to decisions over immigration admissions that violate the value of equal respect that provides the basis of any authority they might claim with respect to migrants. That states have the right to engage in coercive border enforcement of some form is entailed by there being such a thing as the right to exclude, whatever its normative basis. A presupposition of the right to exclude is that states need not weigh the interests of would-be migrants equally to those of citizens. There is broad agreement however that the value of equal respect is owed universally (see, for example, Miller, 2016: 37). Without necessarily abandoning the moral premise of partiality to co-nationals, then, those committed to the conventional view should acknowledge the contingent authority of exclusionary decisions. These decisions are themselves only worthy of respect where they embody respect for others. Why should migrants respect the self-determination rights of a foreign collective that disrespects them as morally tainted and unworthy?

Equal respect is admittedly a normatively thick ideal. Yet, we can get a sufficiently determinate grasp of its relevance to this context by considering the ways in which the exclusion of a particular group is inconsistent with a conception of its members as self-determining agents suited to the status of equal citizenship. There are certain forms of disrespect where the disrespecting agent fails to give appropriate weight to the claims of others as moral equals, manifesting indifference or moral blindness. Immigration decisions can plausibly count as disrespectful and lack authority in this way when citizens and legislators fail to properly consider the claims of certain groups in public debate. These cases of deliberative neglect however are difficult to pin down. The relative absence of some group’s claims in a noisy, crowded public sphere will always be more difficult to identify as disrespectful, than acts of disdain and contempt.

The core cases I have in mind involve an especially strong breach of recognition respect in the form of objectionable discrimination. Those excluded are treated in a hierarchical manner in ways that can be described as stigmatising, degrading or demeaning (Hellman, 2008). They are deemed unworthy of membership in the political community or else incapable of participating in a morally responsible and productive way because of their intrinsic flaws, threatening their sense of self-respect. ⁷ Immigration policies that discriminate based on race, religion, gender, sexuality and disability and other ascriptive identities are prime examples of disrespect in this sense. ⁸ Crucially, they may count as such even where the rules regulating admissions are facially neutral, making no specific mention of ascriptive identities (Fine, 2016). Indeed, it is possible for a decision to wrongfully discriminate against a certain group by virtue of the inferiorising attitudes it conveys, even where decision-makers are not consciously motivated by hostility towards the group in question (Hellman, 2008: 140–143). Whether a policy manifests hierarchical disrespect depends on its differential treatment of social groups and the social and cultural meanings that this differential treatment is invested with. Here, stereotypes, unconscious biases and the historical legacy of discriminatory ideologies are relevant, not just hostile attitudes. While there are a number of possible sources of objectionable discrimination, my main focus is racism since arguably this is the most prevalent influence on immigration policy.

Racism in Immigration Policy

The historical origin of immigration policy in Western democratic societies is bound up with popular prejudice and pseudo-scientific notions of racial hierarchy. Racist ideologies tracked past relationships of colonialism and racialised exploitation, placing Whites at the apex of civilisation and deeming non-Whites less suited to citizenship within modern, developed societies (FitzGerald and David, 2014; Lake and Reynolds, 2008). Thus, Australia’s Immigration Restriction Act – known as the ‘White Australia’ policy –was introduced in 1901 to preserve the dominance of those of White European ancestry in the face of large-scale Asian immigration, serving as a model for border policies in the US, Canada and elsewhere. Today, immigration policy is rarely so explicit in its racism. From the Second World War onwards, liberal capitalist states abandoned overt group-based preferences in admissions policies, opting for individualistic modes of exclusion on the basis of skills, family ties and other criteria consistent with the universalism of liberal commitments (Joppke, 2005).

Nonetheless, the effects of immigration policy are broadly consistent with earlier patterns of racial inequality in admissions with predominantly White European and Anglosphere countries showing a consistent preference for policies that favour those from the same racial background. According to certain ‘structural’ (or ‘institutional’) accounts of racism that focus purely on a policy’s impact, regardless of the ideas surrounding it, the role of immigration policy in maintaining existing patterns of racial inequality at the global level might be thought sufficient to judge that it is racist (Owen, 2020; Shelby, 2016: 24). If we took this broad structural perspective, the authority of a large swathe of immigration policy through which predominantly White destination states regulate entry from Latino, Asian and African countries would be called into question based on its unequal effects alone. Yet, for the purposes of my argument, it is not necessary to reach for more capacious (and therefore contested) accounts of structural racism that refer merely to unequal racial effects at a global level. This is because unjust treatment can be identified in the procedures and practices through which immigration policy is formulated and enforced in prosperous destination states given the ongoing influence of racist ideologies.

Immigration policy-making in contemporary democratic societies is marked by the following: (1) the ostensibly neutral, non-discriminatory terms within which decisions are framed and justified and (2) the numerous agents involved in making and enforcing these decisions who act from a mixture of different aims and motivations. This epistemic context poses challenges when it comes to identifying instances of discrimination, but they are not insurmountable. Any assessment of whether a state’s immigration policy is racist will be contextual, making reference to statistical facts about the country, the conduct of its politics and its history of racial conflict and oppression. Although there may be uncertainty and disagreement around particular cases, this does not negate the proposition that certain laws are as a matter of fact racially disrespectful. It should be noted, first, that paradigmatic acts of resistance to racial discrimination, including resistance to Jim Crow in the US South, were targeted against an ostensibly neutral legal framework. Electoral laws which required voters to pass a literacy test or with complex written ballots, for example, contained no explicit mention of race and yet the goal of racialised exclusion was clear in a context where Blacks were historically deprived of quality schooling (Blum, 2002: 24–25). Indeed, there are important historical connections between Jim Crow and the advent of modern immigration controls, with the education test first used in 1890 to disenfranchise Black voters in Mississippi serving as a model for border restrictions in the US and dominions of the British Empire (Lake and Reynolds, 2008: 5). In both cases, White majorities were responding to a growth in access and opportunities for non-Whites that threatened their social dominance. Many of those who supported Jim Crow of course did so for reasons that were overtly and self-consciously racist. Yet, while the explicit embrace of racial hierarchies is far less prevalent in the context of contemporary debates around immigration, the ongoing taint of racist ideologies is not hard to discern.

A consistent body of academic research and social attitude surveys provides prima facie support for the view that immigration policy-making is shaped by discriminatory attitudes. A large numbers of voters in prosperous destination states base their views about immigration on entrenched prejudices, which need not be explicit or conscious (Brader et al., 2008; Dustmann and Preston, 2007). These attitudes in turn generate and sustain false empirical beliefs about both the number of immigrants arriving (which are falsely inflated) and their negative impact across salient policy domains, such as crime and welfare (Goodfellow, 2020: 156). Opposition to immigration per se is not necessarily racist of course. Nonetheless, a predisposition to embrace false beliefs about the negative impact of immigration while ignoring prominent evidence about its benefits is suggestive of anti-egalitarian attitudes and beliefs. These need not be directed at a universal category of non-citizens, understood to include all persons outside the jurisdiction of the state. Rather, a generalised antipathy towards ‘immigrants’ likely feeds off discriminatory attitudes towards certain racialised groups of migrants whose exclusion in particular is aimed at.

More specific evidence of racial disrespect comes in the form of voting patterns, politicians’ speeches, the tone of media and social media debate, campaigns and protests and the conduct of immigration officials (Denvir, 2020; Goodfellow, 2020). Notoriously, in the 2016 presidential campaign, Donald Trump attracted support by describing Mexican immigrants as ‘rapists’, calling for a ‘great wall’ along the southern border and a ban on Muslims entering the US. While the rhetoric of Trump and his supporters was extreme, there was significant continuity between Trump’s policies and the efforts of previous governments of both parties to curtail Latino immigration in response to the racialised fears of White voters on drugs and crime (Hing, 2017). In some cases, electoral pressure from anti-immigrant parties of the far-right leads politicians of the centre to adopt more aggressive exclusionary measures. French President Emmanuel Macron’s 2018 Asylum and Immigration law, for example, was widely understood as an attempt by Macron to appear tough on immigration after Marine Le Pen, the far-right leader of the then Front National (subsequently, the National Rally party) came second with 34% in the presidential election in 2017 (Butterly, 2019).

An implication of the right to exclude is that states have legitimate interests in areas such as jobs, welfare and security that can rightfully be addressed through regulation of admissions. Yet, in real-world politics, these discourses frequently function in more or less coded ways for the negative evaluation of disfavoured racial groups. The case of Trump’s ‘Muslim ban’ was especially blatant with executive orders targeting sweeping restrictions at a number of majority Muslim countries, all framed in the neutral-sounding language of national security. Even a preference for ‘skilled’ over ‘unskilled’ workers can function as a proxy for racial preferences given how the acquisition of skills depends on education and resources that are on average more accessible globally to Whites than non-Whites (Boucher, 2020; Fine, 2016). Here, race and class-based biases intermingle to determine who is permitted entry and who is kept out.

Some theorists further maintain that the category of ‘unskilled’ itself wrongfully discriminates in the contemporary context. Policies aimed at attracting the ‘best and brightest’, they suggest, involve a corresponding stigma for an excluded social class deemed unproductive, burdensome and less capable of integrating. ⁹ It is in principle possible that – potential racism aside – the exclusion of poor and uneducated migrants qualifies as a relevant source of hierarchical disrespect where the policy expresses popular attitudes about their inherent lack of worth. If so, there are grounds for resisting it. The case is tougher to make than that of race however because it is widely accepted that states have legitimate interests in attracting migrants who can financially support themselves and offer certain valued skills. ¹⁰ The category of ‘unskilled’ is also not typically bound up with a person’s sense of identity and self-respect in the relevant way. This is suggested by the fact support for skill-based entry criteria is high, if not higher, among voters who themselves fall within that category than it is among higher skilled groups (Hainmueller and Hiscox, 2010). Similarly, it need not be disrespectful for a society to exclude persons with certain contagious diseases, say, or who are members of terrorist organisations given the legitimate interest in preventing harm to their citizens.

Of course, in practice, a given policy that prefers high-skilled migrants may draw support from one section of voters who wish to enhance the state’s economic competitiveness while another section of voters support it because they believe it will disproportionately favour White migrants. Alternatively, some voters might support a skills based policy on the basis of economic aims and endorse its unequal racial impact as a welcome side-effect. There is no electoral threshold or other fixed criteria that can be applied to identify whether a particular policy is racially disrespectful. It is not necessary that a majority of voters consciously intend to disadvantage a certain group because of their race or are motivated by ill-will towards them. If it can be demonstrated from the cluster of considerations I have discussed however that immigration policy is being guided in a direction that maintains or intensifies the historical legacy of racist border controls on the basis of racist ideas its authority is void irrespective of the law’s neutral framing.

Finally, immigration law may lose authority by virtue of its enforcement. A racist institutional culture among the state officials and private contractors enforcing borders can lead to non-Whites being singled out for undue attention and given especially harsh treatment. In the UK, for instance, the 2018 ‘Windrush’ scandal, in which long-standing Black residents were detained and deported, called attention to the way in which non-White individuals are routinely subjected to repressive enforcement (Goodfellow, 2020). Yet, whether racism occurs at the point of its construction or enforcement, a racist immigration law is an expression of public international contempt, expressing the idea that there is something unworthy about those it targets and reinforcing the inequality of an international order in which the distribution of liberty and opportunity follows racial hierarchies.

The Conduct of Resistance

It may, at first sight, seem strange that the act of resisting a state’s racist immigration laws should involve moving to that very state and living among people who harbour such ideas. Yet, migrants have their own independent interests in wishing to move to a place, while historically it is only through defiance of racist, segregationist laws that they have been successfully challenged. The state officials and private contractors enforcing these laws are exercising an illegitimate power. Here, the nonviolent evasion of immigration checks in order to cross a border or to avoid being detected upon arrival on a territory is straightforwardly justifiable. It may, in some cases, be necessary to destroy or damage state property to cross a border, such as pulling down fences. This is justified so long as any damage is constrained.

A trickier question concerns how border agents may be treated. Plausibly, the traditional moral constraints governing the use of physical force apply, so that it should be exercised in self-defence against the imminent threat of being arrested and limited to what is necessary and proportionate. A border agent who manhandles a migrant in an attempt to apprehend them may be physically resisted, just as we may resist the illegitimate force of an aggressor on the street. A self-defence justification also applies to migrants placed in detention centres for deportation and where some degree of constrained and proportionate violence is necessary to facilitate escape. Importantly, unlawful entrants are not constrained by any expectations that stem from justifications for law-breaking focused on efforts to ameliorate the law through political persuasion. Unlike with civil disobedience, there is no expectation of publicity or that, having entered a territory illegally, a migrant should present themselves for processing to regularise their status. So long as the state’s legal regime is discriminatory, they are unlikely to receive fair treatment.

All citizens have negative duties to not physically obstruct or misdirect migrants in the manner that pro-borders nationalists have been known to. They have negative duties not to report immigration offences to the authorities and – where the personal costs are not excessive – to refuse compliance with measures such as the UK’s ‘hostile environment’ policy that require landlords, educators and healthcare professionals to verify identity documents (Goodfellow, 2020: 123). There are also positive duties on citizens. Some of these are straightforwardly humanitarian duties of rescue to those in dire need, as with those lost at sea in flimsy vessels. Other are duties of justice, which have more latitude in how they are discharged. ¹¹ As a matter of course, citizens ought to oppose discriminatory law-making through voting, lobbying and protest. They may also undertake civil disobedience, as happened in response to Macron’s immigration and asylum law, when migrants and students occupied university buildings and lawyers and staff at asylum courts went on strike (Butterly, 2019). Invariably, racist immigration policies end up giving succour to racist attitudes among citizens in a cycle of positive reinforcement, leading minorities to feel like permanent foreigners in their home country (Mendoza, 2016: 108–109). By challenging the state’s racist immigration policies, then, citizens also confront racial oppression and exclusion at home and promote the value of an egalitarian civic order.

Conclusion

Many citizens of prosperous destination states are hostile to migrants who break the law to enter the territory and live among them. Yet, public discussion of illegal immigration rarely touches upon whether such laws carry authority for outsiders and why. I have argued that, in addition to urgent humanitarian cases, the evasion and frustration of borders can be justified on the basis of the same value of equal respect that accounts for any obedience non-citizen outsiders might plausibly owe to the immigration laws of a self-governing democratic society. If we take seriously the large body of empirical scholarship on immigration policy, we are likely to conclude that discriminatory beliefs and attitudes are at the core of many measures targeting citizens of states that are predominately non-White. Those countries that have benefitted from background historic injustices of colonial dispossession and racialised exploitation are often those most keen to prevent access to their territories to members of societies that have historically suffered as a result. Yet, an implication of the analysis here is that the more these states adopt repressive border measures, driven by discrimination towards outsiders, the less authority such measures enjoy. Those targeted have a right defy and frustrate such controls in secret and for their own benefit, even where urgent needs are not at stake.