1 NO LAND’S MAN: IRREGULAR MIGRANTS’ CHALLENGE TO IMMIGRATION CONTROL AND MEMBERSHIP POLICIES 1 Andrei Stavilă 2 1. Introduction In this paper I want to raise the problem of the rights irregular migrants 3 can enjoy before and after regularisation, with a special focus on voting rights. My claim is that irregular status cannot be tolerated; a first consequence of this claim is that it is not an acceptable policy to offer undocumented individuals almost all citizenship rights while at the same time refusing to regularize them. Indeed, such a policy would simply mean that the host state tolerates irregular status. This goes against Joseph Carens’s firewall proposal meant to ensure social and economic rights for illegal immigrants even in the absence of a regularisation program. I also argue against Linda Bosniak’s suggestion of conferring rights based on territorial presence and not on status: the combination of territorially-based enjoyment of rights and continuous irregular status is either normatively defective or (since it cannot oppose offering irregulars voting rights too) renders citizenship status irrelevant (section two). In consequence, if irregular migrants cannot enjoy civil, social, economic and political rights while being in an irregular status, only two other options are available: deportation (triggered by their illegal status) or regularisation (supported by the fact that in time undocumented persons become members of the host society) (section three). However, none of the reasons for which states can legitimately exclude foreigners can justify irregular immigrants’ expulsion; as such, deportation is not a solution to the problem of irregular migration (section four). This leaves states with only one option – that is, legalisation of their status. However, none of the regularisation programs experienced by now are able to eradicate the existence of illegal status because they are based on the ‘long-term residence threshold’ proposal. The latter is not only violating existing international and domestic legal norms; it is also practically ineffective. However, since this proposal cannot be altogether dismissed, I argue for a short-term residence threshold (section five). The last two sections discuss the problem of irregular migrants’ franchise in both origin and host states, both before and after regularisation. If an origin state actively supports its citizens-with-irregular-status-abroad, then it may generate serious diplomatic conflicts: a good example is that of the diplomatic tensions between Romania and France regarding irregular- migrant-European-citizens’ right to freedom of movement. This is indicative of the serious diplomatic tensions an origin state would generate if it had actively supported its citizens-with- irregular-status-abroad’s voting in national elections. On the other hand, once regularised (let 1 Draft paper prepared for the 6th ECPR General Conference, Reykjavik, Iceland, 2011, panel ‘Rights at the margins’. Please do not quote without permission. 2 PhD Researcher, Social and Political Sciences Department, European University Institute, Florence, Italy; e-mail: andrei.stavila@eui.eu. 3 For the purposes of this paper I am using the terms ‘irregular immigrants’, ‘illegal migrants’, ‘undocumented migrants’ and ‘clandestine migrants’ interchangeably, setting aside various problems raised by using each term.