Borja Niño Arnaiz

The ethics of immigration has largely remained on the abstract level, prescribing ideal principles for non-ideal circumstances. One striking example of this tendency is found in the ethics of immigration enforcement. Many authors contend that even though immigration restrictions are legitimate in principle, enforcement renders them illegitimate in practice. In this article I argue, in response to this claim, that if one supports immigration restrictions, one should also support immigration enforcement, even if it entails the use of physical force. Not enforcing immigration restrictions is unjust to law-abiding migrants, undermines the rule of law, and amounts to virtually open borders. In order to illustrate the case, I will draw upon the enforcement of tax law. My argument is that if states are allowed to go to great lengths in the enforcement of tax law, there is no reason why they should not be allowed to go to comparable lengths in the enforcement of immigration law. This analogy will provide us with the moral baseline with which to judge the permissibility of immigration enforcement. The proposal takes the rights of migrants seriously, only the right to immigrate is not one. The article also anticipates some potential objections and responds to them.

Standard arguments for open borders draw on cosmopolitan premises. By contrast, statism as a theory of global justice seems to be at odds with open borders. If states are only responsible for protecting the autonomy of citizens and do not owe foreigners equal consideration of their claims, it appears to follow that they may legitimately exclude unwanted immigrants as long as their human rights are not at stake. In this article, I argue that one can be a statist and still defend open borders. Even though moral equality gives rise to demands of distributive justice only in the context of shared subjection to the authority of the state, such that foreigners are not entitled to equal treatment, moral equality demands that the state shows equal respect for their autonomy. Immigration restrictions that are not aimed at protecting the autonomy of citizens are incompatible with equal respect for foreigners’ autonomy, since they subject the latter to unilateral coercion without it being necessary for the former to lead autonomous lives.

According to Joseph Carens, ‘[i]f it is so important for people to have the right to move freely within a state, isn’t it equally important for them to have the right to move across state borders? Every reason why one might want to move within a state may also be a reason for moving between states’. This argument, called ‘cantilever’, is perhaps the strongest argument for a human right to immigrate. Despite various attempts, critics have been at pains to refute it. In this article, I argue that if we want to refute the cantilever argument, we must point to a claim people have against their own state to allow them to move freely within and across its borders that they lack against other states to allow them to move freely across their borders. The article explores different rationales for this claim and finds that the only one that can justify a human right to domestic freedom of movement but not to international freedom of movement is protection against state domination.

Some proponents of global justice question that opening borders is an effective strategy to alleviate global poverty and reduce inequalities between countries. This article goes a step further and asks whether an open borders policy is compatible with the objectives of global distributive justice. The latter, it will be argued, entails the ordering of needs, the assignment of priorities and the preference or subordination of some interests over others. In other words, global justice requires the establishment of conditions and restrictions on mobility. On the contrary, open borders claim an unrestricted and unconditional (not unqualified) freedom of movement, limited only by public health considerations, serious threats to national security or democratic institutions, but not by an aspiration for maximizing global redistributive utility. The main point is that not only would freedom of movement be instrumentalized, losing its presumptive moral force, but ultimately open borders as a remedy of global justice are an oxymoron. The article concludes with an alternative defence of freedom of international movement.