The one subject in which I differ wildly from most of those who find value in my work is immigration. I favour a significantly less burdensome immigration system, and a far more open embrace of foreigners without government interference. 

Seemingly without exception, when the virtues (or otherwise) of immigration are discussed, a core group in the discourse is at pains to emphasise some distinction between ‘legal’ and ‘illegal’ immigration. This group would always say that they only wish to stop illegal immigration, not legal immigration. 

But, in my experience, these individuals – with only a handful of exceptions – also seek a more (legally!) burdensome immigration system. Coincidence? I think not.

To say one opposes illegal immigration and favours legal immigration is actually to say nothing at all. Everyone favours legal over illegal conduct. Even the ‘illegal immigrants’ themselves would have preferred to have immigrated legally. Nobody defends ‘illegal immigration’ as a good principle. 

We all want people to use the designated ports of entry and exit, at least for their own safety, if nothing else. Dressing the debate up in the terminology of legality is detrimental to the discourse.

Ease, not legality

The real conversation in the immigration debate is not about legality, but rather the ease of immigration. 

Those who ostensibly oppose only ‘illegal’ immigration but favour ‘legal’ immigration in fact oppose easy immigration and favour difficult immigration. Those who seem to (but do not) favour ‘illegal’ immigration in fact oppose difficult immigration and favour easy immigration.

Legality is a façade. 

If legality were truly the problem, the best way to solve it without much effort would be to lessen the burden of the law (or repeal it entirely) and render all presently illegal immigration legal. ‘Illegal’ immigration would then disappear, and all immigrants would be ‘legal’.

This would, of course, not satisfy the immigration restrictionists, because they regard law as a tool to achieve their objective. They do not regard law as the objective itself. They do not care that there is a lot of illegal immigration – rather, their concern is that, in their estimation, there is too much immigration per se.

Issue of the century

Immigration will be the issue of this century. 

The world has become ‘smaller’ economically through the market forces of globalisation. It has become ‘smaller’ socially, primarily thanks to Western popular culture spreading throughout and dominating entertainment all around the world. And it has become ‘smaller’ physically, in a sense, due to the ease with which people can instantly communicate across large distances, and even travel those distances in relatively short spans of time.

This clock is never going to be wound back. The world is now, to a greater or lesser extent, a melting pot.

While a certain brand of nationalism is seeing a global resurgence, it will either have to adapt itself substantially to this reality, or it will feature as nothing more than a momentary blip in the history of human civilisation.

The last major frontier in this process of making the world ‘smaller’ is the question of residency: immigration.

The last two centuries have been ones of finding inborn characteristics and removing them as legitimate factors of political discrimination. Feminism has done it with sex and gender (and succeeded, much to the dismay of modern radical so-called ‘feminists’ who are simply bored Westerners). The same has largely been achieved with race. 

Arguably the most important remaining inborn characteristic that remains on the political table is place of birth.

By the end of this century, if not significantly sooner, the world will have produced an answer to whether or not the place of someone’s birth may legitimately be used as a reason for political discrimination against them.

Real crime

When we discuss real crime, we do not say we favour legal murder but only oppose illegal murder. Legality is not the issue. We use the law as a tool to combat murder. Our problem is murder, not legality. Somehow, when it comes to immigration, the discourse is that the legality rather than the underlying conduct is the problem.

I realise that someone is going to feel compelled, at this juncture, to say that we oppose ‘illegal parking’ because of the legality dimension, without opposing parking per se. I think most illegal parking laws are just as arbitrary as illegal immigration laws, but of course parking in violation of someone’s property rights is a legitimate area for legal punishment. The key thing here is that there is a tangible and quantifiable harm done to a legal subject’s legally recognised interests. The same cannot be said in the case of illegal immigration. 

While illegal immigrants might commit other acts that do, in fact, violate someone’s liberty or property, the mere act of crossing a political boundary does not qualify. This is why the common law, in its many centuries of development, never recognised illegal border crossings as a malum in se.

Coded conversation

If ‘legal’ and ‘illegal’ corresponded exactly to ‘difficult’ and ‘easy’, then one could argue that ‘legal’ and ‘illegal’ are appropriate proxies for the discourse. But this is evidently not the case. Illegal immigration is not always easier than legal immigration, given that it would certainly be easier for me, personally, to travel or even immigrate to some jurisdictions legally than it would be for me to make my way there illegally.

I am not – at least not in this column – trying to convince those who favour more restrictive immigration to drop their preference and to become more open to immigration. 

But given the immense importance of this debate, I am advocating for the sophistry to stop. This will allow the underlying, real conversation (easy immigration versus difficult immigration) to replace the superficial, coded conversation (illegal versus legal immigration) that we keep getting stuck on. 

This will produce a clearer and more constructive discourse.

The views of the writer are not necessarily the views of the Daily Friend or the IRR.

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Martin van Staden is the Head of Policy at the Free Market Foundation and former Deputy Head of Policy Research at the Institute of Race Relations (IRR). Martin also serves as the Editor of the IRR’s History Project and its Race Law Project, and is an advisor to the Free Speech Union SA. He is pursuing a doctorate in law at the University of Pretoria. For more information visit