Abstract
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.
What moral claims do illegal immigrants 1 have to membership? When are liberal democracies morally obliged to open up a path of legalization for their undocumented residents? Whereas communitarians have justified exclusion by situating the right of defining the outer bounds of membership as fundamental to political community, liberals have countered that migrants can make moral claims for membership on the basis of a shared humanity. Most recently, Joseph Carens in his discussion of the regularization of irregular migrants has charted a middle way by arguing that undocumented migrants with long-term residence have a moral claim to full membership because their deportation would inflict disproportionate hardship by forcefully uprooting them from their communities.
This article builds on the linkage between illegality, residence, and rights, but shifts the focus from the migrant to the state, and from rootedness and community membership to the rule of law. I argue that the rule of law, as expressed in the principle of legal certainty, provides a novel 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. One critical manifestation of the legal certainty principle is the provision of statutes of limitation in civil and criminal law, which places 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 right of individuals to make long-term plans for their lives but, by extension, they also demand that the state cut its losses and accept the consequences of its failure to act in a timely manner. In shifting attention from the role of the migrant to that of the state in the engendering of prolonged illegality, this article anchors the moral claim for legalization in the state’s legal constitution.
The article proceeds by discussing Carens’ membership-based argument for a right-to-stay. I then make the case that, in the absence of a statute of limitation on illegal entry, 2 the deportation of settled migrants constitutes an arbitrary act of state power. The article develops an alternative argument for legalization grounded in the principle of legal certainty and the curtailment of state sovereignty by the rule of law. 3 The final section explores a number of judicial rulings based on the European Convention of Human Rights that illustrate the argument’s normative logic.
The Membership Case for Legalization: Carens’ “Right-to-Stay”
Normative arguments in support of immigrants’ right to membership are generally conditioned on the attainment of long-term residency. 4 As migrants accrue years of residence, it is argued, their moral claims for membership—whether in the form of legalization or naturalization—strengthen. Conversely, to borrow from Carens, “the moral right of states to apprehend and deport irregular migrants erodes with the passage of time.” 5
What is it about the accrual of residence time that engenders a moral right to membership? The most commonly made association between residency and rights is premised on the attainment of civic membership. Arguments that long-term residents should partake in full membership reflect the recognition that “civil society is prior to political society.” 6 The question of membership thus becomes decoupled from that of legal status. Whereas national citizenship is based on the principles of jus soli (“right of soil”) and jus sanguinis (“right of blood”), membership in a local community instead is said to be premised on jus domicile (“right of residence”). 7 Hence, policies such as the provision of identification documents or resident cards to unauthorized migrants by some US municipalities affirm that, at the local level, undocumented migrants can be members solely by virtue of their “grounded experience of community life.” 8 The same logic underpins the pattern of “case mobilization” whereby citizens mobilize in favor of residence rights for certain undocumented migrants within their communities. 9 Thus, the reality of civic membership for certain unauthorized migrants reflects the fact that, with the passage of time, “we sink deep roots … and these roots matter even if we were not authorized to plant ourselves in the first place.” 10
Residency-based claims for legalization typically follow a hardship logic. 11 Its proponents argue that the denial of legalization to migrants rooted in local communities imposes profound suffering that is “entirely out of proportion to the wrong of illegal entry.” 12 Deportation, a threat faced by anyone without legal status, “tears individuals from families and cruelly uproots people from communities where they may have lived for many years, sometimes banishing them to places where they have few ties or connections.” 13 Thus, as years of unauthorized residence accumulate, deportation becomes progressively inhumane: “it seems cruel and inhumane to uproot a person who has spent fifteen or twenty years as a contributing members of society in the name of enforcing immigration restrictions.” 14 In Carens’ view, the inhumanity of deportation can be morally justified only in cases where individuals have violated norms of civic membership by, for instance, engaging in criminal activity.
Despite their moral and emotional appeal, membership-based arguments have limitations that, I argue, arise from their focus on the migrant and the centrality of civic integration. Essentially, rootedness arguments presume the successful integration of undocumented migrants in contexts that are marked by structural civic exclusion. 15 Not only is the very definition of “membership” shaped by behavioral norms determined by the host society alone, but these norms assume that individuals face no systemic barriers to integration. The lives of undocumented migrants, by contrast, are indelibly shaped by public policies that aim at their civic exclusion. It follows that membership-based legalization arguments are compelling only in cases where immigrants succeed in approximating the “ideal citizen”: individuals with young children who are well integrated into their local communities, financially self-sufficient, and—setting aside their violations of immigration law—law-abiding. Conversely, membership-based arguments run the danger of excluding migrants who, despite prolonged residence and often through no fault of their own, fail to meet the rootedness and socialization criteria on which their normative logic is founded. In contexts where the infrastructural tentacles of the state systematically force undocumented migrants underground, many migrants are not in a position to become members of (native) civic communities. For these individuals, life in illegality is too tenuous to allow for the planting of roots and too far in the shadows to allow for meaningful exposure to their host society’s cultural traditions. Rootedness arguments can be particularly problematic when applied to refugee claimants—the main potential beneficiaries of legalization in many countries—as asylum policies are typically designed to prevent societal integration. Does their lack of “rootedness” mean that these individuals are not deserving of legalization? I will now discuss these questions in greater detail, focusing on Carens’ right-to-stay argument. Although it could be argued that the potentially exclusionary logic of his argument is rendered moot by the proposal to base legalization on years of residence, rather than a case-by-case consideration of hardship, I argue that the normative logic that drives membership-based arguments renders them inherently vulnerable to behavior-based exclusions.
The Limits of Membership-based Arguments
Its human rights rhetoric notwithstanding, the normative logic of Carens’ argument asserts a right to legalization that is premised on the individual’s successful integration into her local community. Ultimately, legalization reflects the recognition that the deportation of locally rooted individuals will impose hardship of a kind that will be vastly disproportionate to the prior wrong of illegal entry. Legalization thus represents recognition of the harm caused by forceful uprooting, and undocumented immigrants can earn the “right” to legalization by becoming well-integrated, productive, and law-abiding community members.
Yet, I argue that for legalization thus conceived to become a reality, its advocates depend on the recognition by existing rights holders that to-be-regularized migrants should in fact be regarded as community members. Although it is conceivable to define membership solely as a function of years of residence, this is unlikely to happen because notions of civic membership typically reflect moral and behavioral assumptions about who is—and who is not—a good citizen. Even Carens, who espouses a broadly inclusive understanding of membership, concedes that individuals with criminal records should be excluded from the benefits of membership. I argue that, in the end, membership-based reasoning often plays out in ways that are closer to notions of discretion, pardon, and deservingness than to the establishment of a legal entitlement. In political discourse, hardship-based arguments typically rest on the demonstration of moral deservingness that arises from either innocence (the case of undocumented children) or reparation (the mitigation of the wrong of illegal entry by subsequent good behavior, integration, and individual hardship). It likely is no coincidence that, where hardship-based legalization programs have occurred, they are strictly time limited, implemented on a case-by-case basis, and based on stringent behavioral requirements.
Let me illustrate the implications of the moral deservingness imperative by examining the case of Germany’s 2006 “right-to-stay regulation” (Bleiberechtsregelung). This legalization initiative was driven by the lobbying efforts of NGOs and the churches who argued that asylum seekers without legal status who continued to reside in Germany after their claims’ denial had become de facto community members. Even though immigrant advocates favored an expansive understanding of membership, as the initiative made its way through the political process deservingness considerations quickly took center stage. As a result, the regulation as passed by the Conference of Interior Ministers placed stringent behavioral conditions on access to legal status. In addition to requiring applicants to have lived in Germany for a minimum number of years (eight years for individuals, six for families), applicants had to be able to speak German, have no criminal record, be employed and hold social insurance, and meet minimum housing standards. In parliament, Federal Interior Minister Schäuble articulated the rationale underlying these requirements: Migrants who want to establish permanent residence have to do their part as well. This means that they have to learn German—that parents have to learn German so that their children have a fair chance in Germany. … It means that they have to integrate into society, that it is better to work, even when it means to accept a lower-paying job, than to go on welfare.
16
Hence, a right-to-stay does not simply emanate from the fact of long-term residency, but has to be earned by means of social and, most prominently, economic integration. Put differently, the conditions attached to realpolitik legalization programs are best understood as markers not primarily of rootedness, but of the individual’s deservingness in the eyes of the host society. Both the logic of reparation—good behavior and economic self-sufficiency mitigate the wrong of illegal stay—and the logic of innocence—evident in the Obama Administration’s 2012 Deferred Action for Childhood Arrivals, which provided temporary deportation relief for certain undocumented immigrant youth— expose the political limits of a membership-based rights discourse.
The narrow conception of deservingness underpinning Germany’s legalization program is further revealed its behavioral requirements are placed in the broader structural context of the country’s asylum policy, which is designed to preempt the very integration that is demanded for legalization. Put differently, when the German state demands the socioeconomic integration of its would-be members, it does so in relation to a population that it hitherto sought to isolate both socially and economically. Thus, asylum claimants—including families—are required to live in group homes that typically are (intentionally) well removed from commercial and residential areas. 17 Applicants are not allowed to work for one year (in many cases longer) and thereafter can only be employed if no other suitable individual can be found to fill the position. Their residential and economic isolation is made complete by the denial of access to free language instruction. Given the multitude of criteria attached to the German legalization program, then, it is not surprising that of 170,000 migrants without residence status (Duldung) in 2006, only 71,000 applied for legalization. Of those who did, one-fifth received residence status, amounting to fewer than 9 percent of the 170,000 migrants without status. 18
Thus, in the extreme, notions of deservingness underpinning legalization policies can be so narrowly construed as to ignore the very predicaments created by prior policy. Not all legalization policies have conditions as stringent as those attached to Germany’s programs. However, it appears to be the case that the mere recognition of a shared humanity is seldom sufficient for the granting of rights. Instead, potential members have to demonstrate that they are deserving of membership and resemble existing members in important ways.
In addition to its reliance on the demonstration of individual deservingness, the membership case for legalization suffers from a second type of weakness: it is unable to engage those who, asserting the primacy of state sovereignty, contend that the act of illegal entry so fundamentally violates the state’s legal order that it trumps all other considerations. Among the many law-and-order opponents to legalization, Carol Swain in her rebuttal of Carens’ argument contends that “… the longest lawbreakers should be given the harshest penalties—not membership rights. Instead of being rewarded with amnesty, perhaps they should be fined, sent home, and placed at the end of the line. Immigration law should favor those immigrants who have shown respect for the rule of law and those who have made good-faith efforts to comply with its rules and regulations.” 19 This law-and-order argument, which has its myriad equivalents in political discourse, is fundamentally at odds with membership-based regularization arguments. As long as legalization arguments solely rest on the hardships associated with the uprooting of community members, the legalization debate will remain marked by a stalemate between its humanitarian proponents, on the one hand, and its law-and-order opponents, on the other. I propose that if we want to move away from notions of deservingness and meaningfully engage with legalization opponents, we need to complement membership-based justifications with arguments that embrace the law itself as the foundation of a right-to-stay.
The Rule-of-Law Case for Legalization
This article makes a case for a moral claim to legalization that situates a moral right-to-stay in the state’s legal constitution. By focusing on the state, rather than the individual, as the moral source of residence rights, I seek to complement membership arguments by compensating for some of their weaknesses. In particular, I seek to break the deadlock between those who rest their case on a recognition of individual hardship and others who assert the primacy of sovereign law. Rather than positing the interests of the individual against the sovereignty of the state, I argue that sovereignty itself is constitutionally bounded and the relationship between the state and the individual is marked by mutual obligations. Rather than deriving a right-to-stay from moral norms that are largely outside the law, then, this article proposes an understanding of legalization that is rooted in the law itself. The logic of its argument is thus limited to national and—in the case of the European Union—supranational contexts in which the rule of law is firmly institutionalized. Although the argument can be applied to the immigrant-receiving liberal democracies of the Global North, it does not carry over to immigrant-receiving countries where the rule of law is either not legally established 20 or not systematically enforced. 21
Rule of Law and the Principle of Legal Certainty
Sovereignty is never unbounded. The liberal state, while premised on the principle of national sovereignty, is also a Rechtsstaat—a state founded on the rule of law. The concept of the rule of law “first and foremost seeks to emphasize the necessity of establishing a rule-based society in the interest of legal certainty and predictability.” 22 Thus, underpinning the rule of law is the principle of legal certainty (Rechstssicherheit) which, in the civil law tradition, is generally defined in terms of “a maximum predictability of officials’ behavior.” 23 Legal certainty “requires that all law be sufficiently precise to allow the person … to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.” 24 The principle of legal certainty is thus reflected in legal norms such as the prohibition on the retroactivity of law and the requirement that legal statutes be clear to those subject to law. 25 Legal certainty, therefore, is closely related to the concept of individual autonomy because it “permits those subject to the law to plan their lives with less uncertainty. It protects those subject from the law from arbitrary use of state power.” 26
Legal certainty thus is fundamental to the rule of law. It is a general principle of international law and is among the few legal concepts recognized by both the European Court of Justice and the European Court of Human Rights. 27 It is recognized in all European legal systems and particularly well developed in Germany, where legal certainty also includes the clarification of contested legal decisions and relationships in a timely manner. The inclusion of timeliness as a feature of legal certainty is, across legal systems, closely related to the institution of Verjährung (statute of limitation, prescriptive period). Statutes of limitation, which can apply to both civil and criminal actions, limit the period of time within which legal proceedings may be brought. In other words, once the time limit has expired, an offense or crime can no longer be prosecuted and punished. Statutes of limitation are designed not only to ensure that legal proceedings are brought at a time when evidence has not yet become obscured by the passage of time, but also reflect the principle of legal certainty because they recognize the need for individuals to be able to plan their lives. In the words of US Supreme Court Justice Thurgood Marshall, “the statute of limitation established a deadline after which the defendant may legitimately have peace of mind.” 28
Deportation and Legal Uncertainty
Nearly all civil and criminal offenses—except for the most egregious of crimes such as murder—carry statutes of limitations, but this is not the case with violations of immigration law. And whereas today the deportation penalty on unlawful entry does not expire with the passage of time, this was not always the case. As Mae Ngai’s US history of “the making of illegal aliens” 29 shows, until 1917 immigrants could only be deported in their first year—and, after 1917, the first five years—after entry. This early statute of limitation on deportability, however, was not a reflection of the principle of legal certainty, but rather resulted from a relatively rudimentary understanding of territorial sovereignty coupled with the still embryonic development of US legal and administrative institutions. Because immigration controls were confined to official ports of entry—leaving the Southern border virtually unguarded—deportation until the 1920s not only was bounded by statutes of limitation, but also was considered a mere correction to the improper admission of excludable aliens. In other words, migrants who evaded legal inspection—undocumented immigrants—were not yet subject to deportation. Only immigrants who violated the conditions of their admission—by, for instance, becoming a “public charge”—could be deported, subject to the statute of limitation.
This early regime of lax US immigration control came to an end with the passage of the 1924 quota laws. With this first comprehensive attempt to restrict immigration, Congress abolished all statutes of limitation for excludable noncitizens and, for the first time, provided for the deportation of illegal entrants. This novel criminalization of illegal entry went hand in hand with the creation of the Border Patrol to guard the country’s southern land border. 30
Although this past statute of limitation on deportation was not based on the principle of legal certainty, today this case can, and should, be made. Most fundamentally, I argue, deportation violates the principle of legal certainty to the extent that it represents an arbitrary act of state power. When can the enforcement of immigration law be described as arbitrary? In the absence of a statute of limitation, deportation can be said to be arbitrary when the state does not pursue undocumented migrants in a reasonably predictable and timely manner. More specifically, deportation is arbitrary when immigration officials turn a blind eye to the presence of illegal migrants at one point in time while pursuing their deportation at another, or when—in the absence of regulation to that effect—officials target for deportation one group of individuals while not pursuing another.
Although deportation in all liberal democracies entails elements of arbitrariness, it is in the United States where uncertainty about the enforcement of immigration law is particularly pronounced. First, compared to virtually any other offense, the likelihood of being apprehended for (successful) illegal entry by US immigration officials is very small. In the United States conviction rates for crimes range from well over 50 percent for the most serious of crimes (67 percent for murder and nonnegligent manslaughter 31 ) to between 10 and 20 percent for the most minor of criminal offenses (motor vehicle theft has the lowest clearance rate at 12 percent 32 ); meanwhile, undocumented migrants without a criminal record face a mere 0.8 percent chance of deportation 33 —a probability that is further reduced to 0.4 percent when excluding individuals with multiple illegal entry records. Significantly, as I have argued elsewhere, 34 the low deportation rate for noncriminal illegal entrants is not simply the result of the incapacity of US immigration agents to locate migrants who are seeking to evade the reach of the state. Instead, it reflects a decision-making logic designed to minimize the political costs that would be incurred by systematically curtailing employer access to cheap migrant labor. In other words, the low deportation rate for illegal entrants in significant measure is the result of the state’s own doing.
Not only do undocumented immigrants in the United States face a relatively low risk of apprehension, but their mode of apprehension is also highly uncertain. Undocumented migrants who have worked for decades for employers known to employ illegal workers may end up in deportation proceedings not because of worksite enforcement, but because they were unlucky enough to get caught in a routine traffic check 35 or because they unknowingly applied for documents that exposed their lack of legal status. The combination of the low probability and the randomness of deportation, I argue, violates the principle of legal certainty, which demands that the consequences of individual action be reasonably predictable. Unlike US citizens who commit minor criminal offenses governed by statutes of limitation, undocumented immigrants will—to return to Justice Marshall—never have “peace of mind.” Even though they may end up spending their entire lives living undetected as illegal immigrants, they will always retain a sense of existential insecurity, lacking the freedom to pursue basic plans—such as raising a family or pursuing a career—free from the fear that they might be thwarted by state action many years down the road.
The above critique of deportation as an act of arbitrary state power is most applicable to undocumented migrants living in environments marked by relatively low levels of immigration law enforcement. A second way in which deportation violates the principle of legal certainty is the practice of many states, such as Germany, to issue serial temporary stays of deportation to large numbers of migrants without legal status. In these cases, migrants are well known to the state but, for a variety of reasons, cannot be deported to their country of nationality. However, what was originally intended as a short-term delay of deportation in many instances becomes a semipermanent state of toleration that can extend over many years. I argue that where the state decides to resume its deportation effort after years of toleration, the principle of legal certainty is no longer upheld, as individuals are unable to make long-term plans for their lives in the absence of predictable state intervention.
To advance arguments for legalization by means of a statute of limitation, then, puts the onus on the state to enforce law in a timely, and reasonably predictable, manner. If the state is unwilling or unable to do so—in particular in contexts where individuals do not actively obstruct its enforcement efforts—the principle of legal certainty demands that the state cut its losses, so to speak, and recognize the right of individuals to move on with their lives. Although this demand may seem radical in the contexts of today’s highly politicized immigration debate, it already has well-established legal precedent in the area of civil and criminal law. In the United States, the statute of limitation on most federal criminal offenses is five years, a figure that happens to correspond to Carens’ legalization requirement of five years post-entry. Because of the recognition that statutes of limitation conflict with the need for punishment, they generally are limited to offenses that do not impose severe and long-term harm on their victims. 36 This condition is clearly met in the case of illegal entry and stay, which does not impose severe harm on individual citizens. From a moral point of view, then, I cannot think of any compelling argument for why we should treat illegal entry on par with the crime of murder—or, for that matter, any other crime punishable by death in the United States—by denying it a statute of limitation. 37
Making a legalization case on the basis of the principle of legal certainty, then, does not stand in conflict with arguments that emphasize the rule of law. On the contrary, the legitimacy of the legal order ultimately depends on its boundedness. Unlike hardship-based membership arguments, which do not have their equivalent in existing constitutional principles (there is no right to rootedness, though some countries recognize the right to a family life), a rule of law case for legalization can rely on the already established constitutional principle of legal certainty. The remainder of this article will explore a number of cases in which the courts, drawing on the European Convention of Human Rights, have asserted the principle of legal certainty when seeking to determine the deportability of undocumented residents.
Judicial Responses to Indeterminate Precarious Status
Precarious Status and the European Court of Human Rights
Article 8 of the European Convention of Human Rights (ECHR) enshrines a legal right to respect for the individual’s “private and family life.” Starting in the 1980s, the European Court of Human Rights began applying Article 8 ECHR to immigration cases, thereby “ending the immigration law’s traditional status as a human rights exclave.” 38 Since then, the Court has identified three distinct situations where immigration enforcement may violate Article 8 ECHR. First, in cases where noncitizen residents face deportation as a result of a criminal conviction, the Court has asserted the state’s duty to balance between the maintenance of public order, on one hand, and the preservation of family life, on the other. 39 Second, on the question of family unification of spouses and minor children, the Court requires the state to balance the prerogatives of immigration control with the right to a family life. Third, and most important for the purposes of this article, with Ariztimuno Mendizabal v France 40 the Court for the first time asserted the state’s obligation to grant a residence permit under the Convention’s right to a private life.
Ariztimuno Mednizabal v France was brought by a female applicant of Spanish Basque origin whose refugee status, granted in 1976, was revoked by the French state in 1979 following a change in political conditions in Spain. Until 1989, the plaintiff received annual residence permits, but from 1989 to 1993 permits were issued only on a quarterly basis. For the following ten years, permit duration was reduced further, on occasion to a few weeks. The Court estimated that until 2003, when the claimant was finally granted the carte de sejour on the basis of European Community law, her permits had been renewed sixty-nine times. In Court held that the French state had violated the plaintiff’s right to a private life under Article 8 ECHR and awarded her €50,000 in compensation. 41
Although this case did not strictly concern the right to stay—at the time of filing her case, the applicant had been issued a residence permit—the Court’s ruling has potential implications for cases in which residency is at stake. Significantly, the Court’s ruling hinged on the impact of a prolonged precarious legal status on the individual. Accordingly, what was at stake was the “precarious and uncertain situation the applicant sustained for a long period… [which] had important consequences for her in material and psychological terms (precarious and uncertain employment, social and financial difficulties ….).” 42 Thus, the Court judged the state’s excessive delay in granting a long-term right to stay to amount to a violation of the applicant’s right to a private life because of its serious consequences for her personal, social, and economic relations.
This is not to assert that the Court’s ruling established an equivalent legal claim for undocumented migrants. In the case under consideration, the Court ruled that the plaintiff’s precarious status was not in accordance with the law. Yet, the substantive justification of the Court’s decision—that the prolonged precariousness of the applicant’s legal status did infringe on her private life—suggests that the Convention could also be applied to the case of migrants without legal status. This becomes apparent in a ruling by the Higher Administrative Court of the German Land of Baden-Württemberg in favor of the legalization of a migrant under a temporary stay of deportation.
Temporary Stay of Deportation and the German Courts
German immigration law allows for the discretionary grant of a temporary stay of deportation (Duldung) in instances where deportable noncitizens cannot be repatriated for reasons that concern either the individual’s circumstance (loss of passport or illness) or the situation in the country of return (civil war or natural disaster). Although the grant of a Duldung renders the individual’s stay nonpunishable, it is not intended for the legalization of stay but rather allows for a temporary—ranging from a matter of days to up to 6 months—suspension of deportation. Yet, given the prolonged impossibility of deportation for many migrants, the temporary stay of deportation regularly results in years of “sitting on packed suitcases” 43 —what is commonly referred to as a “chain of temporary stays of deportation” (Kettenduldung). Thus, of the close to 90,000 migrants with stays of deportation in 2010, 53,000 (61 percent) had been in this status of “unpunishable illegality” 44 for over 6 years, with 29,000 individuals having lived with Duldungen for over 10 years. 45
It was one of these instances of Kettenduldung that resulted in the unprecedented ruling in favor of legalization by the High Administrative Court (Verwaltungsgerichtshof) of Baden-Württemberg in 2010. The claimant was a girl born into an Iraqi family in Germany who had been in continual receipt of Duldungen since 2002, with each stay being issued for three months at a time. The Court ruled in favor of the applicant on the basis of Article 8 ECHR. The Court argued that the applicant’s return to her country of nationality was deemed “unacceptable” because of the incompatibility of her western lifestyle with the conditions she would encounter in Iraq. At the same time, a continued issuance of stays of deportation would constitute a violation of her right to a private life, as “the recognition of the right to a private life encompasses the sum of personal, social, and economic relationships that are constitutive of the individual and which, with increasing length of stay, are of central importance for the free development of a human being.” 46
What is of particular significance here is that the Court applied Article 8 to an individual without legal status. In the Court’s own words, “Article 8 ECHR can demand the legalization of stay in individual cases where the denial of a residence permit disproportionately interferes with the private life of an individual under a temporary stay of deportation.” 47 In its ruling, the Court asserted that the still-open question of whether Article 8 ECHR applied to individuals under stay of deportation (i.e., without a legal status) was to be answered in the affirmative. Importantly, the Court justified its position with the state’s passivity in relation to enforcing the deportation of the applicant: “These ‘Kettenduldungen’ (chain of stays of deportation) are not the result of the applicant’s lack of cooperation or other abuses of legal privileges, as travel document applications were completed [by the applicant’s family]. Rather, it appears that the state did not deem it tolerable for the applicant to return to her home country [sic] as it took, and continues to take, no action to coercively enforce the applicant’s duty to depart.”
Although the Court in its decision was careful to distinguish between individuals “known to the state” (those under stays of deportation) and those whose presence the state had no record of (undocumented migrants), it is not inconceivable that future judicial rulings will hold that the latter also hold enforceable rights to a private life under the Convention, just as Baden-Württemberg’s Higher Administrative Court extended the circle of migrants to whom the European Court of Human Rights had previously applied Article 8 ECHR.
Conclusion
Both the European Court of Human Rights and the Higher Administrative Court of Baden-Württemberg have argued that the experience of living under prolonged precarious immigration status can amount to a violation of the right to a private life under the European Convention of Human Rights. In doing so, they have affirmed that the principle of legal certainty can be applied to noncitizens, including migrants under stays of deportation. In a second important development, the Higher Administrative Court justified its ruling by emphasizing the state’s failure to enforce immigration law in a timely manner, thereby in effect holding the state accountable for the settlement of certain deportable migrants.
These cases illustrate the potential empirical applicability of this article’s normative argument. I have argued in favor of a right-to-stay grounded in the rule of law, rather than in the individual’s civic membership. My argument suggests that the (re)establishment of a statute of limitation on illegal entry would recognize that, in many instances, the hardship associated with the deportation of settled migrants is ultimately grounded in the failure of the state to enforce immigration law in a timely, and predictable, manner. Legalization via a statute of limitation not only draws on existing legal precedents in criminal and civil law, it also acknowledges the state’s responsibility to enforce law in a non-arbitrary manner—thereby strengthening, rather than undermining, the rule of law.
Critics might object that a statute of limitation on illegal entry will create incentives for undocumented migrants to elude authorities for prolonged periods of time, effectively rewarding those who successfully evade apprehension. There is no doubt that undocumented migrants will face incentives to avoid detection. But these incentives are strong already, given the enormous costs that detection, and subsequent deportation, impose on undocumented residents and their families. Given the immense determination of many undocumented migrants not only to remain, put also to pursue illegal reentry after deportation even in the absence of the possibility of legalization, it is unlikely that a statute of limitation would further prolong illegal stays. What about the argument that a statute of limitation rewards those who evade detection by the state? This objection can be advanced against statutes of limitation more broadly and has to be tempered by the reasons these statutes were enacted in the first place. Although the evidence required for the prosecution of illegal stay is unlikely to weaken with the passage of time—the absence of legal documents is generally sufficient—other rationales underlying statutes of limitation easily pertain to illegal entry, such as the value of prompt police work and the importance of closure for offenders and the community alike.
What does remain unresolved in my argument is the standing of migrants under removal orders whose acts of resistance 48 have succeeded in preventing their deportation. In general, statutes of limitation do not apply in cases where a conviction has been obtained or a search warrant issued. In other words, statutes of limitations likely would not apply to individuals who, after having been identified by immigration officials and issued deportation orders, abscond or otherwise obstruct their removal by, for instance, destroying their identity documents. Here the failure to deport is not of the state’s own doing, but rather the result of purposeful action taken by the individual. Have these migrants forfeited their right to legal certainty, and thus, legalization? If we are to answer in the affirmative, I suggest two conditions have to be met. First, given that many individuals who obstruct enforcement are rejected asylum seekers, we need to have full confidence that our asylum systems really do protect those who are in need of protection. In many cases, there is good reason to doubt this. Second, given deportation’s momentous implications, a statute of limitation on illegal entry should apply after a fairly short time of illegal residence, certainly no longer than five years. Whatever our answers turn out to be, the (re)establishment of a statute of limitation constitutes an important step toward holding the state accountable for its failure to enforce immigration law in ways that are compatible with the principle of legal certainty. By curtailing administrative arbitrariness, a statute of limitation on illegal entry would strengthen, rather than undermine, the rule of law.
Footnotes
Acknowledgements
I would like to thank Rogers Smith, Linda Bosniak, David Plotke, and the Politics & Society editorial board for their insightful and constructive comments, and Jan Boesten for valuable research assistance. Earlier versions of this article were presented at the Politics & Society workshop “The Rights of Non-Citizens” and at the International Conference for Europeanists, and benefited from comments by fellow participants and audience members.
Declaration of Conflicting Interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
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