44
Introducing ‘unwanted’ noncitizens
accompany criminal activities, and the deprivations associated with an irregular
status might push people into illegal activity, but irregular migration itself seems
more like an administrative infraction than a dangerous crime. The reference here
is to ‘immigrants’ rather than ‘migrants’ as the discussion for now relates to the
relationship between such persons and the State(s) where they are currently in situ.
Not everyone agrees. Peter Schuck, for example, argues that one should ‘call
the activity what it manifestly is, “illegal”, rather than “irregular”, an arguably
amoral euphemism’.4 From a very different perspective, Nicholas De Genova
argues that ‘irregular’ is a ‘less obnoxious but not less problematic’ proxy for
‘illegal’.5 For De Genova, migration that circumvents administrative systems is
not illegal in the usual sense of the word and so it is not irregular. He advocates
‘undocumented’ as the most honest term since the anomaly being highlighted is
one of documentation.6 However, this risks excluding: someone whose presence
is irregularly documented; someone whose presence is regularly documented,
but whose employment is not; or someone whose documentation has elapsed.
The focus here is upon the deviation from the status quo, the irregularity.
The term ‘extra-legal’, suggested by Catherine Dauvergne prima facie provides a
useful alternative.7 It locates the activity outside the law rather than against it. This is
initially attractive, but in reality, irregular immigrants may well follow the law, pay
tax, and support a State’s legal systems. They may be forced in some instances to
contravene regulations because of the way their relationships with a State have been
constructed. It seems likely that such individuals do not feel like they have a supralegal relationship, but rather have an agonistic one with the law, fearing detection
because they are unavoidably contravening administrative prescriptions.8 The relationship they have with the State(s) concerned is not extra-legal, but irregular.
A person is considered to be an ‘irregular’ immigrant if her/is presence or work
within the State where s/he is present or working is in contravention of that State’s
administrative regulations governing entry, residence or work. This includes those
who have committed serious crimes in their home countries and now live abroad to
avoid punishment, alongside child soldiers who have fled torture and being forced
to kill, but are now unable to prove their age, identity, and the validity of their need
4 Schuck, with Rogers Smith, has gained notoriety by lobbying to block jus soli American citizenship
for the children of irregular immigrants; see for example Peter Schuck and Rogers Smith (1996)
‘Two Yale Professors argue against the concept of … Citizenship Without Consent’, The Social Contract Fall 1996; Peter Schuck and Rogers Smith (1985) Citizenship Without Consent: Illegal Aliens in
the American Polity, Yale University Press; Peter Schuck, Response to ‘Forum: The Case for
Amnesty’, initiated by Joseph Carens, Boston Review May 1 2009, http://bostonreview.net/forum/
case-amnesty/moral-argument-details-matter-peter-schuck (accessed 4 April 2017).
5 Nicholas De Genova (2002) ‘Migration ‘Illegality’ and Deportability in Every Day Life’, Annual
Review of Anthropology 31 p. 420.
6 De Genova 2002, ibid.
7 Catherine Dauvergne (2008) Making People Illegal: What Globalisation Means for Migration and
Law, Cambridge University Press.
8 For example, see discussion by Jose Antonio Vargas in his 2013 film, Documented, as he discusses the difficulties he experiences in regularising his status.