But the problems go deeper. The emergent multi-bit immigration reality briefly and only partially described earlier is an increasingly active socio-political ecology that undermines traditional notions of border control. Further, this emergent reality is partly fed and strengthened by the fact that the estimated 500 annual deaths among illegal crossers due to current US border control policy are becoming unacceptable on normative grounds—whether social justice norms, human rights, or religious values.
Any Policy Bits to Match the New Immigration Reality?
Accepting the fact of a new emergent immigration reality and the serious limitations and even unsustainability of militarized borders does complicate governments’ efforts to control immigration. The EU offers some interesting options, even though EU member states are foundationally different from the US in their political culture.
Over the last two decades, the EU has actually accumulated a series of innovations that move it towards governing, rather than controlling, immigration inside the EU. This move towards governing is gaining strength even as national governments in the EU continue to speak of unilateral control. Yet when it comes to immigration from outside the EU, strengthening control is what the EU has been gearing up to for the last decade. We can learn something positive from the EU’s internal efforts, and, in a way, the EU can learn something negative from the US border control policy—how not to do it.
One foundational outcome from years of EU negotiations that can illustrate the specificity of the EU approach and its contribution to notions of governing rather than controlling immigration is the Treaty of Amsterdam (2003). It formally allows a shift of immigration policy and its coordination out of the third pillar, where it gets handled as part of justice and home affairs, to the first pillar, whose legal provisions become part of European Community law and are binding on each member state. Further, it is possible to argue that since individuals will have the legal capacity to invoke first pillar laws and bring them to bear against member states, the changes of the Treaty of Amsterdam may give the judiciary, here the European Court of Justice (ECJ), more authority over immigration too. The treaty calls for enforcement of non-discrimination principles within member states, with enforcement through the European Court of Justice. The treaty’s formal commitment to human rights could strengthen the ECJ’s authority over member states and contribute to strengthen the notion of rights-bearing individuals who can move across the member states with their portable rights.
More generally, beyond human rights there is a far larger case to be made: multiple different types of international law are becoming part of the fabric of national law, both through legislative law making and through use in judges’ interpretations. This contributes to partly denationalize aspects of national law. Thus one of the foundational transformations lies in the extent to which a good part of the EU’s project inhabits and gets structured inside the complex institutional apparatus of the state. Similarly, in the case of the US, much of globalization gets structured inside the state. In both cases, this often happens in the language of the national—national law, national economic regulations, national monetary policy, and so on. We need to decode this language of the national rather than take it at face value: though formulated as national, these structurations may have little to do with the national as historically constructed.
Finally, a few words on borders. Borders are institutions, and as such they are undergoing change and stress. In my research I have tried to track the formation of a whole range of novel types of bordering capabilities—types of controls that are not embedded in the notion of geographic borders as produced in the historic process of nation-state formation.13 These bordering capabilities do not pivot on geographic border controls. They are highly technical capacities which have multiple institutional locations beyond the “border” per se. For instance, in global finance, there are multiple such bordering capabilities (many inside financial institutions rather than in government offices) that have replaced the older traditional national borders. Free trade agreements certainly open up countries, but multiply processes of certification at point of production, again not the typical border. When “borders” are looked at through these lenses one can see a wide range of possibilities. The sharpest and most developed case at this time, when it comes to these new bordering capabilities and people flows, are the portable rights of the new transnational professional class. These rights are derived from free-trade agreements, discussed earlier, as well as the IMF and other institutions deeply engaged in global processes; as rights they become operative inside the countries that are signatories. There is no similar regime for working-class migrations today, but it is one possible regime in the future, perhaps as part of a flexibilizing of migration flows (which would enable return and circular migrations).
This paper has examined the institutional insertions of the immigration question in a far larger and complex map than current immigration law can fathom. We need more such close examinations in order to understand the micro shifts that are amounting to a new immigration reality. This new immigration reality comprises a variety of bits. These include changes in the position of the state in a world that is not only increasingly interdependent but also one where the national is itself being partly denationalized through state action. This begins to unsettle the distinction national-foreign, as epitomized by Fox’s visit described earlier and by more foundational shifts, such as the institutionalizing of the human rights regime and claims for rights made by unauthorized immigrants in all major immigration countries. Immigration is beginning to play on a far broader register than that represented by the “immigrant” in her relation to immigration policy narrowly defined. There is a whole new research agenda, well represented in this website, that is not concerned with the familiar issues of geographic border controls and the binaries of inside/outside. Such analysis dislodges the immigration question from narrow national versus foreign dimensions as made emblematic in militarized border control. It helps expand the analytic and policy terrain within which to examine the question of immigration, immigrant rights, and the governing of immigration.