State’s Discretion and the Challenge of Irregular Migration – the Example of Permanent Regularization Practices in Spain and Switzerland

In the heated debate around irregular migration, the so-called regularization measures represent one of the main bones of contention – presented by some as the only possible solution to irregular presences and contested by others as rewards for illicit behaviour. Despite their many differences, such measures have a common core – discretion. They are, in fact, gracious concessions of the State to those who, by entering and staying within its borders in breach of its laws, have challenged its sovereignty. The present paper will use an operational definition of discretion to analyse two European regularization mechanisms that, because of their manifest similarities as well as their different empirical outcomes, lend themselves particularly well to comparison: the Swiss “cas de rigueur” procedure and the Spanish “arraigo”. The juxtaposition between the two schemes will be used to investigate how the powers of the State decline, through discretion, different answers to the challenge posed to national immigration models by irregular entries and stays.