SelectingImmigrantsbyDavidMiller.

David Miller, ‘SelectingImmigrants’1David Miller (Nuffield College, Oxford)[email protected]CSSJ Working Papers Series, SJ034April 2015Centre for the Study of Social Justice Department of Politics and International RelationsUniversity of Oxford Manor Road, Oxford OX1 3UQUnited Kingdom Tel: +44 1865 278703 Fax: +44 1865 278725 http://social-justice.politics.ox.ac.uk1 Paper prepared for the conference  on  ‘The  Lampedusa  Dilemma:  Global  Flows  and  Closed  Borders.  What  should  Europe  do?’  organised by the EUI Forum on Migration, Demography and Citizenship, European University Institute, Florence, 17-18 November 2014.CSSJ Working Paper SJ034 April 2015 __________________________________________________________________________________2In the developed liberal democracies today, the immigration issue has become intractable as a resultof three conflicting pressures. The first is the increasing number of people from developingcountries who wish to enter, whether to escape poverty or civil war or simply to improve theirmaterial prospects. Polling by Gallup, for example, suggests that 38% of those living in Sub-SaharanAfrica and 21% of those living in the Middle East and North Africa would prefer to migratepermanently.2 The second is the increasing reluctance of citizens within those societies to acceptlarge numbers of incoming migrants. In the UK, for example, an opinion poll in late 2013 found that80% of those who were asked thought that current levels of net inward migration were too high,85% thought that immigration was putting too much pressure on public services such as schools,hospitals and housing, and 64% thought that over the last decade immigration had not been goodfor British society as a whole.3 Broadly the same picture holds across Europe.4 The third is thediminished capacity of governments to control immigration flows by means that are judgedacceptable by international law and opinion. Even setting aside the special case of the EU with itsprinciple of internal free movement, the prevailing human rights culture stays the hand ofgovernments who seek peremptorily either to prevent unwanted immigrants from entering or todeport then once they have gained a foothold inside.Under these circumstances, developing a defensible policy for selecting which immigrants to admit,and on what terms, becomes a priority. In sketching the outlines of such a policy, I make threeassumptions, which I shall not defend here (though I have done so elsewhere5). The first is thatthere is no human right to immigrate: the simple fact of being refused entry by a state does not, initself,  violate  anyone’s  human  rights.6 The second is that democratic states can legitimately shapetheir immigration policies in the light of their overall national goals and priorities, whether these are2 N. Esipova, J. Ray, and R. Srinivasan, The  World’s  Potential  Migrants:  Who  They  Are,  Where  They  Want  to  Go,  and Why It Matters (Gallup Inc., 2010-2011). Overall, 40% of those living in the poorest quartile of countries have expressed a wish to migrate see P. Collier, Exodus: Immigration and Multiculturalism in the 21st Century (London: Allen Lane, 2013) p. 167. 3 See http://www.harrisinteractive.com/vault/HI_UK_News_Daily_Mail_Poll-Nov13.pdf. 4 See  E.  Iversflaten,  ‘Threatened  by  Diversity:  Why  restrictive  asylum and immigration policies appeal to western  Europeans’,  Journal of Elections, Public Opinion and Parties, 15 (2005), 21-45. 5 See  D.  Miller,  ‘Immigration:  the  case  for  limits’  in  A. Cohen and C. Wellman (eds.), Contemporary Debates in Applied Ethics (Oxford: Blackwell, 2005); D. Miller, ‘Is  there  a  Human  Right  to  Immigrate?’  in  S.  Fine  and  L.  Ypi  (eds.), Migration in Political Theory: The Ethics of Movement and Membership (Oxford: Oxford University Press, forthcoming). I am currently completing the manuscript of Strangers in our Midst: the political philosophy of immigration, to be published by Harvard University Press.6 In some cases, however, it might lead to a  violation  of  that  person’s  human  rights:  the  distinction  is  important.CSSJ Working Paper SJ034 April 2015 __________________________________________________________________________________3economic, cultural, environmental, humanitarian etc. An important aspect of national self-determination  is  deciding  who  is  going  to  form  part  of  the  ‘self’  in  future. The third is that this rightof self-determination   is   nevertheless   limited   by   what   I   call   ‘the   weak   cosmopolitan   premise’,  according to which all human beings are entitled to equal moral consideration when agents(whether states or individual people) decide how to act towards them. This means in particular thata prospective migrant seeking to enter must have her claim considered, and if it is denied she mustbe presented with reasonable grounds for refusal. 7Selecting between potential immigrants is justifiable, therefore, but how should it be done? Thereare two dimensions that we need to be consider: the first is the inherent nature of the claim to enterthat the immigrant is making; the second is the nature of the connection (if any) that already existsbetween the immigrant and the receiving state. On one dimension, we have the familiar distinctionbetween refugees and economic migrants, where refugees are those whose claim is based on thethreat to their human rights created by remaining in their current state of residence, and economicmigrants are all those who have an interest in moving to a new society, whether to study, to findwork, or to pursue some personal project, but who cannot cite a threat to their human rights asgrounds for admission. On the second dimension, there are those who qualify as what I call‘particularity  claimants’  and  those  who  do  not.    Particularity  claimants  are  people  who  assert  that  one particular state owes them admission by virtue of what has happened in the past. A clear casewould be one in which a group of people have been led to believe that they had a right to immigrateshould their circumstances require it.8 Another example would be people who have performedsome service for the state, and claim now that being allowed to immigrate is the appropriate form ofrecompense.9 Particularity claimants might also be refugees or economic migrants, but whatdistinguishes them (and justifies the rather awkward label I am applying to them) is that their claim7 Someone might ask why, if there is no human right to immigrate, states have to justify their refusal to those they exclude. But compare applicants for a job: no-one has a right to that job, but they are nonetheless entitled to be selected by a fair procedure, and to be given reasons for why they were not chosen. 8 For example the Ugandan Asians who held British passports but whose right to immigrate was abruptly removed by the Immigration Act of 1971. When Idi Amin came to power and threatened to expel them at short notice, the British Government recognized its obligation and allowed them to enter. The episode is described in R. Winder, Bloody Foreigners: the Story of Immigration to Britain (London: Little Brown, 2004), ch. 22. 9 Consider the case of the Nepalese Ghurkhas who, after serving in the British Army, have sought the right to reside in Britain after retiring. This right was granted to them by a High Court decision in 2008. According to the actress Joanna Lumley who spearheaded their campaign,  ‘The  whole  campaign  has  been  based  on  the  belief that those who have fought and been prepared to die for our country should have the right to live in our country’  (http://www.gurkhajustice.org.uk/).CSSJ Working Paper SJ034 April 2015 __________________________________________________________________________________4is held against one particular state, whereas refugees and economic migrants, although they havechosen to apply in one place, might in many cases find that their rights or interests were equally wellserved by being admitted elsewhere.The distinctions I have drawn suggest two priority rules that states should follow in selectingimmigrants: 1. Refugees as a category should have priority over economic migrants; 2. Within eachcategory particularity claimants should have priority over others. The rationale for the first rule isthat states have an obligation to admit refugees (the nature and extent of which will be exploredshortly) whereas they have no such obligation to admit economic migrants. The rationale for thesecond rule is that a state has more reason to acknowledge a claim that stems from an existingrelationship with the immigrant than one that is general in nature. This, however, does not yetsettle whether a refugee without a particularity claim should always get precedence over aneconomic migrant who has one. Consider the following case: suppose the U.K. Border Agency has(for some reason) to make a choice between two applicants for admission: a refugee from SouthSudan, who can credibly show that her life is in danger because she has been an outspoken critic ofthe regime, but who has no previous connection to the UK, and a young man from Iraq who workedas a translator for the British Army during the Gulf War, but who can no longer find work (so he ispoor but not yet in desperate straits). Who should be taken first? Well, perhaps the Sudanese, sincetime is of the essence and she needs immediate help. But maybe she can claim less than the Iraqieventually: if the Agency has made an arrangement for refugees from Sudan to be accommodated inneighbouring Kenya, that may offer sufficient protection for her human rights. The Iraqi man, on theother hand, may have a desert claim that can only be redeemed if he is provided with theopportunities that come with being allowed into Britain.In presenting this case as a test of our moral intuitions, I have already assumed that the obligation toaccept refugees is not unlimited, and therefore that there may justifiably be selection among thosewho are claiming refugee status. First, it is a responsibility that falls upon all states able to providethe necessary refuge, and each state, therefore, is only required to discharge its fair share of thatresponsibility. Ideally this would be done by entering into an international scheme for placingrefugees  according  to  each  state’s  capacity  to  absorb  them.10 In the absence of such a scheme, it ispermissible for states to enter into bilateral or multilateral agreements whereby states who receivemore asylum applications that they are obliged to accept can pass asylum-seekers on to other placeswilling to take them into, provided always that their human rights will be adequately safeguarded in10 There is a substantial literature on refugee burden-sharing schemes, and the criteria that might be used to judge  each  state’s  quota.    For  a  helpful  review,  see  T.  Kritzman-Amir,  ‘Not  in  My  Backyard:  On  the  Morality  of  Responsibility Sharing in Refugee Law’,  Brooklyn Journal of International Law, 34 (2009), Part III.CSSJ Working Paper SJ034 April 2015 __________________________________________________________________________________5those places. Second the obligation is an obligation to provide temporary sanctuary, and it onlybecomes an obligation to grant permanent residence in cases where it becomes clear that therefugee has no realistic prospect of returning safely to her own society within a reasonable space oftime.On these assumptions, receiving states may have to select, among those can prove their claim torefugee status, people they will take in themselves and others who they will pass on under one ofthe arrangements outlined above. So what grounds for selection are permissible? Consider fourpossibilities:   1)   The   refugee’s   need   for   permanent settlement; 2) The causal role played by thereceiving state in creating the situation from which the refugee is escaping; 3) The likely economiccontribution of the refugee to the receiving society; 4) The degree of cultural affinity betweenrefugee and host political community.1) This seems a relevant consideration. Although the places to which refugees are transferred mustbe human rights compliant, and this means that they provide all the opportunities that are neededto live a decent human life and not just food, shelter and the other immediate necessities, under thekind of arrangement envisaged (realistically one in which rich developed states pass on a proportionof those who apply for asylum to less developed countries) there will inevitably be less assurancethat the same opportunities will continue to be available far into the future. This matters less if thestay is only going to be temporary.2) Consider next situations in which the state to which the asylum-seeker applies is at least in partresponsible for making her into a refugee. These will typically be cases in which it has intervened inher country of origin, creating conflict between national or ethnic groups which expose her tothreats of persecution for example the position of some Iraqi Kurds after the Iraq war. Thegranting of asylum may then be viewed as a form of reparation.11 This makes the refugee intoparticularity claimant, and provides grounds why she should be admitted to the state in questionrather than to some other place her reparative claim is a claim against that state in particular, andmay not be satisfied by a promise of refuge somewhere else (this will depend on the extent of herloss).    As  Souter  argues,  refugees’  choices  about  where  to  claim  asylum gain additional significancein  these  circumstances:    ‘after causing or contributing to their displacement, heeding11 See  J.  Souter,  ‘Towards  a  Theory  of  Asylum  as  Reparation  for  Past  Injustice’,  Political Studies, 62 (2014), 326-42 who provides a detailed analysis of the conditions under which asylum claims of this kind are validCSSJ Working Paper SJ034 April 2015 __________________________________________________________________________________6refugees’  wishes  is  the  least  that  responsible  states  can  do’.12 Indeed they may be able to claim notjust temporary asylum but permanent residence on reparative grounds.3) Many states choose which immigrants to accept by examining whether they bring special skillsthat will contribute to the economy. But can this criterion also be used, legitimately, when decidingwhich asylum-seekers to admit?    Keeping  in  mind  that  the  refugee’s  claim  is  based  on  the  threat  to  his human rights, not on his potential contribution, it might seem arbitrary to give him any kind ofpriority on this basis. Certainly it would be unacceptable if the asylum claim itself were to beassessed more generously in the case of those who were seen as having valuable skills. But assumethat the claim is assessed strictly on the grounds of the seriousness of the threat to the asylum-seeker’s  human  rights,  could  productive  skill nevertheless count at the second stage, when decidingwhether asylum is offered in the state of first entry or somewhere else? I believe this would belegitimate only in cases where the state is offering something more than asylum to the refugeewhen it is offering permanent resettlement to someone who does not automatically qualify for it.States are surely permitted to do this, in the same way that they can offer resettlement to refugeeswho have been granted asylum elsewhere, and when they do so it is reasonable to take account ofthe  refugee’s  prospective  contribution.134) Can states select in favour of their cultural kin when deciding who to admit as refugees? Therationale for this is set out clearly by Carens, though it is not so clear whether he accepts it himself:As   an   empirical   matter,   it   is   almost   certainly   the   case   that   a   state’s   willingness   to   take   in  refugees will depend in part on the extent to which the current population identifies with therefugees and their plight. Moreover, other things being equal, it will be easier for therefugees themselves to adapt to the new society and for the receiving society to include them,the more the refugees resemble the existing population with respect to language, culture,religion, history, and so on.14To take a concrete example, the wars in Syria and Iraq in 2014 led to calls in some quarters fortraditionally Christian countries such as the UK to give priority to Christian refugees escaping from12 Souter,  ‘Asylum  as  Reparation  for  Past  Injustice’,  pp.  335-6. 13 Could those who are moved elsewhere under a burden-sharing arrangement complain about the unequal treatment they are receiving? I do not think so. The important point is that they are treated equally at the point at which their claim to asylum is assessed, and thereafter in ways that respect their human rights. That the state does more for some refugees than it is obliged to do is not an injustice to the others. 14 J. Carens, The Ethics of Immigration (New York: Oxford University Press, 2013), p. 214.CSSJ Working Paper SJ034 April 2015 __________________________________________________________________________________7these countries. This was in justified in part on the grounds that Christian families were undergoingparticularly severe persecution, but also on the grounds that Christian states had special obligationsto people who shared their national religion. The first part of this claim is clearly relevant, but whatabout the second?Such an argument from common culture seems hard to defend, unless it can be presented as a wayof dividing responsibilities between states. In the Iraq/Syria case it was claimed that Muslimrefugees would be more likely to be offered sanctuary by neighbouring Islamic states such as Jordan.Assuming this is true, and that states more generally are inclined to give precedence to those whoshare  their  citizens’  cultural  or  religious  values,  then  it  would  be  justifiable  for  each  state to take thisinto account. But without such a background, and considering the nature of the obligation towardsrefugees, cultural selection does not seem defensible.I turn now to selection criteria for immigrants who make no claim to refugee status ‘economic  migrants’  in  the  broad  sense.    Since  states  have  discretion  over  whether  to  admit  such  immigrants  in  the first place, it might seem that they have carte blanche as to whom they select, even if this meanschoosing on grounds of race or national origin  (such  as  in  the  notorious  ‘White  Australia’  policy  of  the 1920s and 1930s). How can we show that this does not follow? It might appear to be ruled outby the human right against discrimination. But on closer inspection this turns out to be too weak aninstrument, since there are contexts in which it seems perfectly permissible to discriminate ongrounds,  for  example,  of  gender,  language  or  religion.    It  isn’t  a  breach  of  human  rights  if  a  political  party decides to draw up an all-women short list to select its candidate in a particular constituency, ifa public broadcaster chooses only among those able to read the news in Welsh, or a church confinesmembership to those who belong to its own faith. . So the human right against discrimination mustbe interpreted as prohibiting discrimination on grounds that are irrelevant to the right or benefitbeing allocated. Those who in the past defended selecting immigrants by race or national originthought that they could justify using these criteria by appeal  to  the  ‘character’  or  ‘moral  health’  of  their societies. To defeat these arguments requires showing that such claims are either false, orirrelevant, for substantive reasons.An initially more promising avenue is to argue that selecting immigrants on grounds such as race orreligion is an injustice to some existing citizens, namely those who belong to the group or groupsthat the immigration policy disfavours.15 By discriminating in this way, the state appears to be15 It  is  followed  in  J.  Carens,  ‘Who  Should  Get  In?  The  Ethics  of  Immigration  Admissions’,  Ethics and International Affairs, 17 (2003), 95-110, and at greater length in  M.  Blake  ‘Discretionary  Immigration’,  CSSJ Working Paper SJ034 April 2015 __________________________________________________________________________________8labelling these people as second-class citizens.    As  Michael  Blake  has  put  the  point,  ‘the  state  making  a statement of racial preference in immigration necessarily makes a statement of racial preferencedomestically   as   well’.16 This will often provide states with strong reasons not to pursuediscriminatory admissions policies, but a limitation of this approach is that it would not apply to astate that was already religiously or ethnically homogeneous and whose members wished it toremain so.17 Notice also that the argument hinges upon the injustice that is done to existing citizenswhose status is lowered by the discriminatory policy, not on any wrong that is done specifically tothe excluded candidates for admission, and this seems to put the emphasis in the wrong place.Although an economic migrant cannot assert a right to be admitted, she does typically have a strongclaim, based on how her interests will be advanced by moving for example through working in adifferent kind of job, or for a much higher wage, than she could hope to obtain at home. Accordingto the weak cosmopolitan premise stipulated above, to turn down such a claim without givingrelevant reasons for the refusal is to show disrespect for the person making it. It is to treat her asthough she were of no moral significance. This extends also to the selection of immigrants from thepool of applicants. It is not sufficient merely to put forward the general reasons in favour ofimmigration controls. If John is going to be granted entry while Jaime is turned away, the lattermust be offered relevant reasons for his unequal treatment.This appeal to weak cosmopolitanism explains why the state is not entitled to use merely arbitrarymethods in choosing which immigrants to admit, but it does not yet settle which reasons shouldcount in making the selection, and so far, therefore, does not explain what is wrong about usingrace, ethnicity, and other such criteria. One way to narrow down the list is to say that the reasonsmust be ones that the immigrants themselves can accept. It is obvious enough that no immigrantwill regard her own skin colour as legitimate grounds for exclusion. But a problem then arises incases where the receiving state and the prospective immigrant hold different views about whatshould count as relevant. Suppose, for example, that a state decides to admit only high-skilledimmigrants on the grounds that it has a greater economic need for these than for low-skilledworkers. An immigrant without the relevant skills might reject this on the grounds that he (andothers like him) deserves a chance to improve his condition. So it is asking too much to say that thePhilosophical Topics 30 (2002), 273-89  and  M.  Blake  ‘Immigration’  in  R.  Frey  and  C.  Wellman  (eds.)  A Companion to Applied Ethics (Oxford: Blackwell, 2003). I also used the argument in an earlier discussion: D. Miller, National Responsibility and Global Justice (Oxford: Oxford University Press, 2007), ch. 8. 16 M.  Blake  ‘Discretionary  Immigration’,  p.  284.   17 This  is  conceded  by  Blake  in  Blake,  ‘Discretionary  Immigration’,  p.  285.  See  also  M.  Walzer,  Spheres of Justice (Oxford: Martin Robertson, 1983, pp. 35-51  and  the  discussion  in  Blake,  ‘Immigration’.CSSJ Working Paper SJ034 April 2015 __________________________________________________________________________________9reasons  the  state  gives  must  also  be  ones  that  the  immigrants  can  accept  (if  ‘can  accept’  means  ‘will  in fact accept once these reasons are explained’).    Instead  the  relevant  condition  is  that  the  reasons  the state gives for its selective admissions policy must be good reasons, reasons that the immigrantsought to accept given the general aims of the policy.18A more difficult question is whether it can be justifiable to select in favour of those who already havethe political or cultural attributes that will enable them to fit more easily into the society they arejoining. Consider political attributes first: can liberal democracies choose immigrants who havealready demonstrated their democratic credentials as opposed to those who espouse other politicalvalues, assuming that this can be reliably established? Most commentators, including strong liberalssuch as Carens, agree that states may exclude people who pose a threat to national security byvirtue of the beliefs that they hold, such as those liable to engage in terrorist acts.19 But in suchcases it is the disposition to act, rather than the beliefs themselves, that forms the reason forexclusion. What about those whose political beliefs are such that they do not acknowledge theauthority of the state they wish to join, even though they have no intention of sabotaging it byviolent or other means? All states, not least liberal states, depend on their members complyingvoluntarily  with  their  laws  most  of  the  time,  and  presumably  a  belief  in  the  state’s  legitimacy  is  one  of the main sources of compliance. Someone who lacks that belief may keep the law for otherreasons (prudence, respect for the rights of others) but is likely to be less reliable in carrying out herduties as a citizen. So there is some reason for favouring committed democrats when choosingimmigrants. On the other hand, liberal democracies do not require all of their existing citizens tosign up personally to their founding principles: they are prepared to tolerate anarchists, fascists andothers, leaving them free to express their beliefs and to attempt to persuade others of theircorrectness within the limits of the law. On balance, then, selection on political grounds would bejustifiable only in cases where illiberal or undemocratic immigrants were applying in sufficientnumbers that their presence would create social conflicts or disrupt the working of democraticinstitutions.20The argument that can be made for cultural selection raises different questions. We arecontemplating here immigrant groups whose cultural commitments are different from those of the18 A  rather  similar  position  is  taken  in  Blake,  ‘Immigration  and  Political  Equality’,  where  it  is  formulated  in  the  language  of  ‘reasons  that  immigrants  could  not  reasonably  reject’  (p.  971). 19 Carens, The Ethics of Immigration, ch. 9. 20 As  Carens  puts  it  ‘the  problem  is  not  with  any  single  immigrant’s  views,  but  with  the  collective  effect  of  ideas  hostile  to  democracy’.  (Carens,  The Ethics of Immigration, p. 176).CSSJ Working Paper SJ034 April 2015 __________________________________________________________________________________10majority of existing citizens though we should also distinguish between cases where the existingstate is already multicultural and has enacted multicultural policies (e.g. Canada), and cases in whichit is more culturally homogeneous (e.g. Japan): the issue becomes more pressing in the lattercircumstances. Immigrants who speak a different language, practise a different religion, or have adifferent lifestyle from the majority may pose two kinds of problem. The first is simply the cost ofincorporating them into the host society on terms of equality. There will, for example, be the costof translating public documents into a new language or of providing translators in courts and socialservice agencies; or if religion is the source of the division, the cost of accommodating religiouspractices where these impose different requirements on believers outside of the mainstream. Someof these costs can be passed to the immigrants themselves, but others will be borne by the state,and indirectly, therefore, by citizens at large.There are of course likely to be compensating benefits that come with increasing cultural diversity.The point is simply that if we look at (economic) immigration as a practice that is governed by thelogic of mutual advantage, both costs and benefits need to be factored in when consideringselection policy. Some of the costs may only be apparent with hindsight, as it becomes clear whatthe equal treatment of minority cultures actually requires. This also applies to the second potentialproblem. Culture is not only a matter of belief or of practice, but also of identity. This raises aconcern about the way in which culture can come to constitute a line of fracture within a politicalcommunity,  possibly  leading  to  the  formation  of  ‘parallel  societies’,  whose  members  have  very  little  contact with those beyond their own community; and also a concern about the effects of culturaldiversity   on   social   trust,   and   through   that   on   people’s   willingness   to   support   welfare   states   and  other instruments of social justice. These are by no means inevitable consequences of admittingimmigrants with cultural backgrounds different from those of the majority, but they are possibleconsequences, and avoiding them may again prove to be somewhat costly, this time in the form ofsupport for active integration programmes. This  is  the  point  at  which  the  state’s  existing  cultural  character becomes important: a state that is already well-equipped with multicultural policies canmore easily tackle these problems than one that is not. There is, however, no independentrequirement that a state should embrace multiculturalism prior to deciding upon its admissionpolicy. Democracies are entitled to decide how far they wish to protect their inherited nationalcultures, and how far to encourage cultural diversity within their borders.To sum up, selective immigration requires that states give reasons for the policies they apply, andthese reasons must relate to the legitimate purposes of the state itself, as manifested in its otherpolicy decisions. Selection on economic grounds is the least controversial example, but other formsCSSJ Working Paper SJ034 April 2015 __________________________________________________________________________________11of positive discrimination cannot be ruled out: if a society wants to enhance its sporting reputation,for example, I cannot see why it should not seek to attract immigrants who will later qualify for thenational teams. Giving reasons of this kind shows sufficient respect for those who are refused entry,disappointed though they may be. Recall that the later part of the discussion relates only toeconomic migrants. Where refugees are concerned, there is much less scope for selecting ongrounds  other  than  the  refugee’s  own  need  for  sanctuary  and  the  opportunity  for  a  decent  life.