Human Rights and Irregular Migrants

By Professor David Owen

A few days ago, it was reported that “Toronto has made history by affirming itself as a “sanctuary city,” the first Canadian city with a formal policy allowing undocumented migrants to access services regardless of immigration status. On Thursday, City Council passed the motion by a vote of 37 to 3 that also requires training all city staff and managers to ensure Toronto’s estimated 200,000 non-status residents can access its services without fear of being turned over to border enforcement officers for detention and deportation. The vote puts Toronto in the same league with 36 American cities, including Chicago, New York City and San Francisco that already have such policies.”

It is appropriate that Toronto is the first Canadian city to take this step since it is home to the political theorist Joseph Carens who has led the development of the normative study of migration and led the argument for such measures. But what is the case for such policies?

Well, the starting point is that irregular migrants pose a distinctive normative and practical dilemma for democratic states. On the one hand, irregular migrants are human beings, entitled to human rights. On the other hand, exercising those human rights is liable to expose their migration status to the public authorities. The consequence is twofold. First, the effective possession of human rights by irregular migrant is quashed. Second, public authorities fail to receive salient civic information about labour exploitation, criminal acts, etc., and this supports the production and reproduction of what we may call the “uncivil economy” and “uncivil society” running alongside and intersecting with the “civil economy” and “civil society”.

To address this problem, Carens (and others) have made the case for a “firewall” system whereby knowledge of a person’s migration status acquired through treating them in hospital, through their reporting a crime, etc., cannot be used for migration purposes. (Think of this by analogy with the rule that evidence of criminal wrongdoing uncovered through an illegal search cannot be used in a criminal prosecution.) Such a policy supports the ability of irregular migrants to access their human rights without undue burdens but it also supports the ability of the state to obstruct the opportunities for private and public domination that underpin the ‘uncivil economy’ and support the growth of ‘uncivil society’.

Morality and prudence can sometimes walk hand in hand.

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