Authority and Immigration
| Published date | 01 August 2023 |
| DOI | http://doi.org/10.1177/00323217211046423 |
| Author | David Miller |
| Date | 01 August 2023 |
https://doi.org/10.1177/00323217211046423
Political Studies
2023, Vol. 71(3) 835 –850
© The Author(s) 2021
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DOI: 10.1177/00323217211046423
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Authority and Immigration
David Miller
Abstract
States claim to have authority over prospective immigrants who have not yet been admitted
but are nonetheless expected to comply with immigration law. But what could ground such an
authority claim? The service conception of authority defended by Raz appears not to apply in
this case. Nor can it be argued that immigrants give their consent to the state by applying for
admission. Another approach appeals to the practice of reciprocity between states in respecting
each other’s immigration regimes, but many immigrants will fall outside of its scope. Instead, the
article defends the view that the natural duty of justice requires immigrants to comply with the
state’s immigration regime provided that it is reasonably just. This does not require that the
immigrant herself should have authorised the regime through democratic participation. However,
the natural duty argument has to be qualified by recognising that some migrants can legitimately
appeal to necessity as grounds for breaching the duty and entering unauthorised.
Keywords
authority, consent, immigration, justice, necessity, reciprocity
Accepted: 28 August 2021
Introduction
The question this article addresses is whether and if so on what grounds states can claim
authority over prospective immigrants, meaning would-be immigrants who have not yet
been granted legal recognition by the state in the form of residence or citizenship rights.
These then are people who are applying to immigrate from a distance, or who have made
it to the border and are asking to be admitted, or who have entered without permission and
are now seeking leave to remain. How should we understand their moral relationship to
the state they are trying to enter? The state makes and applies immigration law to people
who belong in these categories and it expects them to comply with its regulations; in other
words, it claims to have legitimate authority, within this limited sphere, over people who
are not yet under its jurisdiction in the way that citizens and permanent residents are.1 For
present purposes, I am going to assume that if the state does have such authority, then
prospective immigrants will be under duties to comply with those parts of immigration
Nuffield College, University of Oxford, Oxford, UK
Corresponding author:
David Miller, Nuffield College, University of Oxford, Oxford OX1 1NF, UK.
Email: david.miller@nuffield.ox.ac.uk
1046423PSX0010.1177/00323217211046423Political StudiesMiller
research-article2021
Article
836 Political Studies 71(3)
law that apply to them.2 This means, for example, that if their application for an immigra-
tion visa is turned down, they ought not to attempt to enter illegally, or if they are refused
entry at the border, they should comply with the instruction to return home. These duties
are not unconditional, and later in the article, I will be looking at circumstances in which
they may be set aside. My premise, nevertheless, is that if it can be shown that the state’s
authority claim is valid, this will often make a difference to what such immigrants are
permitted to do. The issue is whether, and if so how, such a claim can be vindicated.
The question I am asking only makes sense if we accept that the state has at least a
conditional right to exclude immigrants. The purpose of immigration law is to determine
who is going to be admitted and on what terms, and to lay down procedures for handling
the claims of different categories of migrants. Someone who believes that all border con-
trols are indefensible must regard immigration law as an illegitimate imposition, and
therefore as disqualified from acting as a source of authority. But not all open-borders
advocates take such an extreme view. Instead many of them regard international freedom
of movement as an ideal to be realised once conditions permit, while recognising that in
the meantime some control of migration is unavoidable, so it is important to investigate
how this can be carried out in the fairest way possible. Joseph Carens (2013: chaps.
9–10), for example, a prominent defender of the ideal of open borders, devotes consider-
able space in his book to investigating the criteria that should and should not be used
when migrants are being selected for admission. For people in this category, the question
whether immigrants are under an obligation to comply with immigration law that meets
the required standards of justice is clearly pertinent, and has obvious practical implica-
tions both for the immigrants themselves and for citizens who are helping them to gain
entry. So my enquiry should be of interest not only to those who believe that legitimate
states are always entitled to control their borders but also to those who hold the more
moderate open-borders view exemplified by Carens.
I begin by explaining not only why it is important to decide whether states can claim
authority over immigrants but also why the ‘service’ conception of political authority
proposed by Raz appears not to apply in this case. I then consider, but reject, two possible
grounds for such authority, namely, consent and reciprocity before presenting my own
favoured account, which holds that the natural duty of justice requires immigrants to
accept the authority of immigration law, provided that law is (reasonably) just. However,
in the penultimate section of the article I propose a significant qualification, which is that
for some immigrants, the pro tanto duty they have to comply with immigration law can
be set aside on grounds of necessity.
Authority over Immigrants and the Service Conception
This idea that prospective immigrants may have duties towards the state, corresponding
to its authority with respect to them, has not been much explored in the literature on
immigration, where the focus is usually on the rights of immigrants and the correspond-
ing duties of the receiving state.3 One exception to this is Matthew Gibney’s (2020) very
interesting essay on the duties of refugees, but he is chiefly concerned with refugees who
have already been offered asylum by a host state.4 You may think that this neglect is not
surprising, since while immigrants have general moral duties like everyone else – so they
should not, for example, try to shoot border guards5 – it is obvious that they lack any
specific duties of compliance with immigration law. Since my aim is to challenge this
assumption, we should pause for a moment to consider the implications of the
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