The Rule of Law and the Right to Stay
The Moral Claims of Undocumented Migrants
Bibliographic Data
| ID | 2317311 |
|---|---|
| Authors | Antje Ellermann (0000-0002-6701-9051, University of British Columbia, Vancouver, Canada, corresponding author) |
| Year | 2014 |
| Volume | 42 |
| Issue | 3 |
| Pages | 293-308 |
| Publication date | 2014-09-01 |
| Open Access | Yes |
| Type | ARTICLE |
| Venue | Latin American Politics and Society (JOURNAL) |
| Journal identifiers | ISSN: 1531-426X • E-ISSN: 1548-2456 |
| Publisher | SAGE Publications Inc (PUBLISHER) |
| DOI | 10.1177/0032329214543255 |
| OpenAlex | W3123457329 |
| Language | EN |
| Citations received | 17 |
| References cited | 6 |
What moral claims do undocumented immigrants have to membership? Joseph Carens has argued that illegal migrants with long-term residence have a claim to national membership because they already are de facto members of local communities. This article builds on the linkage between illegality, residence, and rights, but shifts the focus from the migrant to the state, and from membership-based arguments to the rule of law. I argue that the rule of law, as expressed in the principle of legal certainty, provides an alternative justification for the regularization of resident undocumented migrants. The principle of legal certainty recognizes the right of individuals to make long-term plans for their lives by requiring that state action be reasonably predictable and nonarbitrary. Thus, as an expression of legal certainty, both civil and criminal codes have statutes of limitation that place a time limit beyond which most crimes and misdemeanors can no longer be prosecuted, and individuals can move on with their lives. Not only do these statutes recognize the individual's right to be free from arbitrary state control, they also demand that the state cut its losses and accept the consequences of its failure to act in a timely manner. I contend that, in the absence of a statute of limitation on illegal entry, the deportation of settled migrants constitutes an arbitrary act of state power. The article explores a number of judicial rulings to illustrate the argument's normative logic
Certainty · Deportation · Immigration · Law and economics · Legal certainty · Political science · Politics · Rule of law · Sociology · State (computer science · Statute · Statute of limitations · European Criminal Justice and Data Protection · Law · Migration, Health and Trauma · Migration, Refugees, and Integration
Towards a Systemic Theory of Irregular Migration
Immigration enforcement, open borders, and the Chinese Exclusion Cases
Beyond the freedom of movement
‘Detention is morally exhausting’
Responding to unauthorized residence
Immigrant legalization
The ethics of immigration enforcement
Deserving the Right to Work? Immigration Officials and the Work Permit in Germany
The Politics of Pain in Immigration Detention
We don’t cooperate with the police’
The (Non-)Status of ‘Duldung’
Selective Humanitarianism in Asylum Policies
The fit between regulatory instruments and targets
Differential solidarity
Revocation nation
The temporary turn in asylum
A prospect of staying? Differentiated access to integration for asylum seekers in Germany
Impossible Subjects
Asylum-seeking families in current legal discourse
Respect for Private and Family Life Under Article 8 Echr in Immigration Cases
Asylum and the Expansion of Deportation in the United Kingdom
Coercive Capacity and The Politics of Implementation
Undocumented Migrants and Resistance in the Liberal State
| Citations per year | 2.83 |
|---|---|
| Citation span | 2020 - 2026 (7) |
| Highly cited | No |