Immigration Justice

Front matter

STUDIES IN GLOBAL JUSTICE AND HUMAN RIGHTS

Peter W. Higgins

Studies in Global Justice and Human Rights Series Editor: Thom Brooks

Contents

Acknowledgments

1 2 3 4 5

The Philosophical and Empirical Context Nationalist Approaches to Immigration Justice Cosmopolitan Approaches to Immigration Justice The Priority of Disadvantage Principle

Chapter 1

The title of this book signifies that immigration policy is not a matter of ethics (understood to refer to the moral analysis of individual action and character), but is rather a matter of justice, and more precisely, structural justice. A central contention of this book is that the justice of an immigration policy can be ascertained only through consideration of the pervasive, systematic, and unjust inequalities engendered by the institutions that constitute our social world. This is because immigration policies affect people not as individuals per se, but as members of social groups that are brought into existence by the ways in which formal rules, informal norms, and stable practices (that is, social institutions) unequally distribute opportunities among those implicated in them. That is to say, the way an immigration policy affects a person is not idiosyncratic, but rather is a function of that person’s gender, race, economic class, sexuality, ability, age, and citizenship status, among other things. What I am asserting here, but will argue for throughout this book, is that one cannot wholly determine whether or not an immigration policy is just in our social world, given its present nature, unless one’s principles for making such assessments treat gender, race, economic class, sexuality, and so on, as salient categories of analysis. The institutions that characterize our social world are contingent features of it, and they vary to a considerable extent from one society to the next, both in terms of the social groups they create and the way they distribute opportunities among groups. This complicates the task of figuring out which immigration policies are just in two ways. One is that the justice of an immigration policy cannot be adequately assessed in an a priori way; the empirical circumstances in which a policy is enacted are relevant to the assessment of its justice, and therefore demand careful investigation. This explains my conviction, borne out by the arguments of this book, that methods of reasoning about the justice of states’ immigration policies that do not attend to the contingent but nonetheless relatively stable features of our world that produce social inequality are likely to generate policy recommendations that are, if not simply unjust, at least contrary to the moral goals that motivate them. The second is that, in virtue of morally salient empirical differences between the national social contexts in which an immigration policy may be enacted, it is unlikely that any specific type of immigration policy will be just or unjust universally. Rather, what immigration policies are just will vary from one country to the next.

The chapters that follow fill in and give support to the ideas I have articulated so far. They also challenge, in ways that relate to these ideas, some recurring assumptions that inform reasoning about immigration justice in philosophical, political, and popular discussions. One of these assumptions concerns the nature of states and relations among states. The intensification of processes of globalization, with respect to capital, commodities, and production, renders increasingly anachronistic the related notions that states can engage in purely self-regarding conduct and that states are impervious to the policy decisions of other states. Global interdependence and the mutual vulnerability of states have numerous implications for reasoning about the justice of states’ immigration policies. Whether it appears in the application of principles of political morality to states’ immigration policies, or in the justification given for those principles, appeals to what Thomas Pogge calls explanatory nationalism—the idea that morally significant social phenomena can be explained entirely in terms of domestic factors (Pogge 2002: 15)—should, at this point in human history, be regarded by default with suspicion. Immigration policies themselves have tremendous impacts beyond the borders of the state that enacts them, most obviously for the foreigners who will be granted or refused admission in accordance with them. States’ immigration policies may also have grave consequences for foreigners who do not wish to move, or who lack the resources to do so. The effects of states’ immigration policies on non-migrating foreigners are among the most morally significant since these people are often those most disadvantaged by prevailing national and global institutions.

What focus on social groups disadvantaged by prevailing institutions makes apparent, in relation to the moral analysis of states’ immigration policies, is that the value of freedom of international movement varies among individuals in relation to the social and economic resources each has command over. For a significant portion of the human population (perhaps the majority), the liberty to move about the globe free of state interference at the border has very little value. This observation calls into question another recurring assumption that features in the justification of some philosophical proposals for the just regulation of immigration—the thought that states’ immigration policies might be used as tools for alleviating global poverty. I do not mean to suggest that states’ immigration policies should not be morally assessed for their extra-national economic consequences. On the contrary, while the immigration policies that states adopt are probably not capable of significantly reducing severe global poverty, some may entrench and perhaps intensify existing global economic inequality. Whether this is the case with respect to any particular immigration policy depends, in ways I will describe in subsequent chapters, on the circumstances in which it is adopted. It is my view that the global economic consequences of a state’s immigration policies, particularly for groups disadvantaged by dominant social institutions, are among their most morally salient aspects; this illuminates precisely why thoroughgoing assessments of the justice of states’ immigration policies must not neglect the structural inequalities that are typical of our social world.

1.2 SOME SALIENT ASPECTS OF CONTEMPORARY GLOBAL MIGRATION

Large-scale migrations have taken place since the beginning of human history, but contemporary patterns of population movements are distinctive because of their global scope and their economic and social consequences. In 2010, approximately 214 million people—just over 3 percent of the world’s population—lived outside the country of their birth as immigrants for at least twelve consecutive months (UNDESA 2012). The number of people living outside the country of their birth has, moreover, increased six-fold since 1910, and this rate of increase is nearly 50 percent greater than the rate of global population increase. More than half of this increase in the number of immigrants worldwide has occurred in the last forty years (Benhabib 2004: 5).

1.2.1 Patterns of Contemporary Global Migration

Stephen Castles and Mark Miller project that rates of international migration will continue to increase for the foreseeable future, for several reasons: growing inequalities in wealth and opportunities between the developed countries of the “Global North” and the developing countries of the “Global South” will motivate people to move from the latter to the former in search of better living standards; millions of people will be displaced by more frequent and more intense ecological pressures; violent political conflict will drive people out of their countries of birth; and globalization of capital and commodities, especially in the form of newly created areas of free trade, will propel unprecedented movements of labor (Castles and Miller 2009: 5). United Nations Department of Economic and Social Affairs (UNDESA) research corroborates Castles and Miller’s prediction. According to UNDESA, the net number of international migrants to more developed regions is projected to average 2.4 million annually between 2010 and 2050, 96 million in total (UNDESA 2011).

The destination for many (60 percent) of the world’s migrants is indeed the Global North (among whom, 58 percent originate in the Global South) (UNDESA 2012). Thirty-three of the world’s forty-five developed countries have been net receivers of international migrants in recent years. This group includes traditional countries of immigration such as Australia, Canada, New Zealand, and the United States, most of the populous countries in Northern, Southern and Western Europe as well as the Russian Federation and Japan. According to UNDESA projections, the major net receivers of international non-refugee migrants between 2005 and 2050 are projected to be the United States (1.1 million annually), Canada (200,000), Germany (150,000), Italy (139,000), the United Kingdom (130,000), Spain (123,000) and Australia (100,000) (UNDESA 2006). That European countries are among the largest receivers of immigrants is a relatively new phenomenon. Prior to the Second World War, most European countries experienced net emigration (to the “classical countries of immigration”). While Western and Northern European countries have experienced net immigration since 1945, Southern European countries did not become countries of immigration until the 1980s; as of 2009, Central and Eastern European states are becoming countries of immigration (Castles and Miller 2009: 8).

Migration from the Global South to the Global North eclipsed international migration within the Global South for the first time in 2010. Approximately 40 percent of migrants reside in countries of the Global South, 85 percent of whom originated in another less developed country (UNDESA 2012). Several developing countries have been attracting non-refugee migrants in large numbers, including Hong Kong, Israel, Kuwait, Malaysia, Qatar, Saudi Arabia, Singapore, South Africa, Thailand and the United Arab Emirates (UNDESA 2006). Eighty-seven percent of the world’s 15.6 million refugees are hosted by countries of the Global South (UNDESA 2012).

Prior to the Second World War, most international migrants were European. In contrast, Asia is by far the major contemporary source of migrants (1.3 million non-refugees annually), followed by Latin America and the Caribbean (1.1 million) and then Africa (0.4 million). Over UNDESA’s 2005-2050 projection period, more than half of all net non-refugee emigrants from less developed regions are expected to be from Asia, between 25 and 30 percent will be from Latin America and the Caribbean, and the remaining non-refugee emigrants will be from Africa. The countries with the highest levels of net non-refugee emigration are projected to be China (—329,000 annually), Mexico (—306,000), India (—241,000), the Philippines (—180,000), Pakistan (—167,000) and Indonesia (—164,000) (UNDESA 2006).

Even though it is the case that countries of the Global North are (considered individually) the greatest receivers of migrants and that countries of the Global South are (again, considered individually) the greatest suppliers of migrants, South-North migration comprises only 35 percent of global migration. (Thirty-four percent of migration is South-South, 25 percent is North—North, and 6 percent is North- South.) Most migrants born in Europe, Asia, Africa, and Oceania reside in the same major world area of their birth, and the plurality of migrants born in North America still reside in North America. Only migrants born in Latin American and the Caribbean are more likely to reside outside the major world area of their birth (UNDESA 2012).

1.2.2 Causes of Contemporary Global Migration

As these data indicate, flows of international migration are not haphazard; certain regular patterns of movement can be identified. Yet contemporary patterns of global migration are more complex than is appreciated by the thought that people simply move from poor places to rich ones. It is important to acknowledge foremost that, as Castles and Miller argue, “people tend to move not individually, but in groups” (Castles and Miller 2009: 7). By this claim, Castles and Miller mean both that people tend to go where they know other people or have acquaintances, encouraged by personal ties, and that the reasons individuals move are not anomalous or unique to them; rather, the forces impelling people to take up residence in a new country affect entire groups of people on account of their memberships in those groups. (This explains, for example, why, even though women and men are roughly equally represented among migrants worldwide, there are notable gender imbalances within certain categories of migration, as well as within particular country-to-country flows (Castles and Miller 2009: 12).)

For this reason, among others, Castles and Miller reject what they call the “push-pull” theory of international migration, the traditionally most popular view on the causes of global migration. As Castles and Miller note, the push-pull theory “emphasize[s] tendencies of people to move from densely to sparsely populated areas, or from low- to high-income areas” (Castles and Miller 2009: 21-2). Among those who explain the causes of international migration in this way, commonly cited push factors include “demographic growth, low living standards, lack of economic opportunities and political repression,” while “demand for labor, availability of land, good economic opportunities and political freedoms” (Castles and Miller 2009: 22) pull migrants toward particular countries. “Push-pull” is perhaps a misnomer for the sort of view Castles and Miller describe, however, because in some sense, all theories of the determinants of international migration cite reasons that compel a person to leave her own country and that draw her to some other particular country. What chiefly characterizes the view Castles and Miller call the “push-pull” theory is its focus on poverty, persecution, and overpopulation as the significant forces of emigration.

Castles and Miller argue that the “push-pull” theory does not reliably predict contemporary patterns of international non-refugee migration. Though one might expect on such a view that those with the fewest economic opportunities or lowest standards of living would migrate in the greatest numbers, Castles and Miller point out, first, that “it is rarely the poorest people from the least-developed countries who move to the richest countries; more frequently the migrants are people of intermediate social status from areas which are undergoing economic and social change” (Castles and Miller 2009: 23). Thus, and moreover, the initial effect of economic development in poor countries is, perhaps surprisingly, increased emigration: “This is because the early stages of development lead to rural-urban migration, and to acquisition by many people of the financial and cultural resources needed for international migration” (Castles and Miller 2009: 305). (The economic conditions under which net emigration ceases and is replaced by net immigration takes, Castles and Miller note, generations to develop.)

Second, though the push-pull model predicts movements from densely to sparsely populated regions, there is no correlation between a country’s population density and its rates of emigration or immigration (Castles and Miller 2009: 23). Indeed, reflection on the domestic analogue of this prediction quickly reveals how fantastical it is; the overwhelming tendency is for people to move in the direction of more densely populated areas.) The causes of immigration the push-pull theory cites seem to reflect the reasons sixteenth- to early twentieth-century Europeans migrated to and colonized the Americas, Africa, Australia, and South Asia. While some fled political persecution, tyrannical oppression, and famine, many sought sparsely populated territories containing “un-owned” land to appropriate and cultivate. And so, although Castles and Miller claim that the “push-pull” theory is “individualistic and ahistorical” (Castles and Miller 2009: 22), it seems to me, rather, that the explanations it invokes are better described as anachronistic and culturally particular.

Furthermore, the push-pull theory overlooks a number of forces in contemporary patterns of migration. I mention three in particular here. First, Castles and Miller argue that international migration is often motivated by social networks linking immigrants in receiving countries to family, friends, and associates in sending countries. They observe that the overwhelming majority of Mexican migrants to the United States obtained legal residence through family reunification policies (Castles and Miller 2009: 28). Indeed, two-thirds of immigrants admitted to the United States annually are granted visas on the basis of family reunification. Second, increasingly common ecological crises displace a growing number of people, already in the millions, each year (Castles and Miller 2009: 4). Third, various aspects of globalization will continue to spur ever-increasing cross-border movements. In particular, Castles and Miller note that the establishment of regional and global free trade areas and agreements will demand the movement of labor (Castles and Miller 2009: 4).

While the plurality of non-refugee migrants tend to go from a poor country to one that is somewhat less poor, it would be a mistake to think that once a person has decided to leave her country of origin, she simply chooses, from among a variety of options, under conditions of perfect knowledge of wage levels and employment opportunities in potential receiving countries, to go to the one were she believes her economic welfare will be maximized. To the contrary, the most salient patterns of contemporary migrant flows follow historical patterns of colonization and military involvement. Castles and Miller remark:

migration from Mexico to the USA originated in the southwestward expansion of the USA in the nineteenth century and the deliberate recruitment of Mexican workers by US employers in the twentieth century. The migration from the Dominican Republic to the USA was initiated by US military occupation in the 1960s. Similarly, both the Korean and the Vietnamese migrations to America were the long-term consequence of US military involvement. The migrations from India, Pakistan and Bangladesh to Britain are linked to British colonial presence on the Indian subcontinent. Similarly, Caribbean migrants have tended to move to their respective former colonial power ... The Algerian migration to France (and not to Germany) is explained by the French colonial presence, while the Turkish presence in Germany is the result of direct labor recruitment by Germany in the 1960s and early 1970s. (Castles and Miller 2009: 27-8)

Castles and Miller defend the “migration systems theory” of patterns and causes of international movement. This theory places significant weight on the effects of historical relations between states and contemporary global economic institutions in initiating, shaping, and propelling large-scale international movements of people.

According to migration systems theory, the economic interests of wealthy states, among the many forces in international migration, explain in large part what patterns of international migration have arisen. On this view, wealthy countries have encouraged and recruited certain kinds of immigration, and adopted certain kinds of immigration policies (to the extent that domestic xenophobic political pressures have allowed), mainly as a way of mobilizing cheap labour for capital. It perpetuate[s] uneven development, exploiting the resources of poor countries, to make the rich even richer . . . labour migration lis] one of the main ways in which links of domination [are] forged between the core economies of capitalism and its underdeveloped periphery. Migration [is] as important as military hegemony and control of world trade and investment in keeping the Third World dependent on the first. (Castles and Miller 2009: 26-7)!

It is unsurprising, for this reason, that Castles and Miller do not recommend the liberalization of wealthy countries’ admissions policies as a remedy for global inequalities of wealth and opportunity. Although increasing international migration is a symptom of these inequalities, it “is not the solution to the North-South gap. Migration will not resolve North Africa’s unemployment problem, or appreciably reduce the income and wage gap between the USA and Mexico, or make a significant impact on rural poverty in India” (Castles and Miller 2003: 284).

1.3 FREEDOM OF MOVEMENT AND INTERNATIONAL LAW

The role of international law in regulating cross-border movements of people is very limited. For the most part, this can be attributed to the reluctance of states to cede their sovereign power to admit and to exclude foreigners according to criteria of their own choosing. While some regional initiatives constrain the authority of states to restrict admission (most significantly the 1992 Maastricht Treaty, which allows citizens qualified freedom of movement within the territory of EU-member states), states are largely free to admit or to exclude at their own discretion. The most significant exceptions to this are Articles 13, 14, and 15 of the Universal Declaration of Human Rights (UDHR), adopted by the UN General Assembly in 1948, and the 1951 Convention and 1967 Protocol Relating to the Status of Refugees.

The UDHR provides for a handful of rights related to freedom of movement. Article 13 guarantees each person “the right to freedom of movement and residence within the borders of each state” and “the right to leave any country, including his own, and to return to his country.” In other words, citizens may move freely within the borders of their own state, and, having left, may re-enter; each person may emigrate from any country. Article 15 also guarantees certain related rights: it holds that “Everyone has the right to a nationality,” and “No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.” That is, states may neither expel their own citizens, nor may they prevent them from leaving.

With the exception of the right of emigration, the rights set forth in Articles 13 and 15 are rights of citizens. International law makes significantly fewer demands on states on behalf of foreigners. While Article 14 of the UDHR holds that “Everyone has the right to seek and to enjoy in other countries asylum from persecution,” this right is subject to substantial qualification produced in subsequent international law. The 1951 Convention and 1967 Protocol Relating to the Status of Refugees provide minimal protections for refugees who are already present in and have been legally recognized as refugees by the receiving country, but neither makes any demand on states that they admit foreigners seeking asylum.” Similarly, international law assigns no duties to states to admit as immigrants (or to exclude) foreigners who are not fleeing persecution, whose admission is the subject of this book’s inquiry.

1.4 THE PHILOSOPHICAL SIGNIFICANCE OF IMMIGRATION AND IMMIGRATION POLICY

International law is not alone in its lack of attention to transnational migration. Prior to 2000, philosophers had said very little on the subject. The philosophical literature on immigration policy has expanded notably since then, but is still modest, and philosophical attention to the topic is probably still not commensurate with the moral gravity of the issues it raises. On the face of it, one would think that immigration policy would be (and would have long been) a central concern of political philosophy.

1.4.1 Why should Political Philosophers be Concerned with Immigrant Admissions?

Political philosophers have traditionally been concerned with the internal justice of states: they have asked whether and how the modern state’s monopoly on coercion within its territorial boundaries can be justified, and how domestic social institutions must be arranged in order to be just. Somewhat more recently, political philosophers have also questioned what obligations states and their citizens have to other states and to individual foreigners. Political philosophers have, for the most part, not examined the moral basis for the distinction between citizens and foreigners, even when they have argued that citizens and foreigners are morally equal. They have also rarely challenged the moral legitimacy of states’ discretionary authority to admit and to exclude foreigners from their territory.

Often political philosophers have disregarded questions of admissions and membership on the implicit assumption that these questions can be addressed later in ways that are consistent with the internal principles of justice they defend (Cole 2000: 194). In many cases, questions of admissions and membership are not merely overlooked, but are explicitly excluded on the basis of artificial assumptions about the nature of the state that are built into theories of justice (Benhabib 2004: 1). For example, in Political Liberalism, John Rawls writes:

A democratic society, like any political society, is to be viewed as a complete and closed social system. It is complete in that it is selfsufficient and has a place for the main purposes of human life. It is also closed . . . in that entry into it is only by birth and exit from it is only by death . . . Thus we are not seen as joining society at the age of reason, as we might join an association, but as being born into a society where we will lead a complete life. (Rawls 1993: 41)

Rawls’ idealizing assumptions exclude questions about the justice of various immigration policies from the concern of political philosophy. On the other hand, when explicitly addressing matters of international justice in The Law of Peoples, Rawls does not effectively annihilate international migration by stipulation, but rather maintains that it is nonetheless irrelevant to political philosophy, as “the problem of immigration is . . . eliminated as a serious problem in a realistic utopia” (Rawls 1999: 9). In a realistic utopia the causes of international migration (which Rawls asserts are persecution, political oppression, famine, and overpopulation) would no longer be present; for this reason, Rawls argues, theories of international or global justice need not concern themselves with questions of immigration justice.

Despite what Rawls’ omissions and exclusions suggest, the criteria states use to determine which foreigners should be admitted and which should be excluded is worthy of critical moral analysis. I take for granted that it is important for political philosophers to determine whether or not states are internally just, and to determine the principles by which this evaluation may be made. In fact, much contemporary political philosophy has been devoted to answering important questions such as “By what principles of justice must states distribute social goods among members?” However, one cannot entirely answer this question without first specifying the criteria by which the membership of states is constituted. (That is, whether principles of internal distribution are just or not depends on what principles of membership are in place.) For the most part, one has access to the goods states distribute only if one is amember. And whether or not one is a member of a certain political community may have more significance for one’s opportunities and well-being than whether or not the distribution of social goods within one’s community is just; the poor of an affluent community may be better off than the middle class of another. In other words, questions of membership are morally prior to questions of distribution. No distribution of goods can be just if the group of people among whom the goods are to be distributed has not been justly constituted (that is to say, if some people are being unjustly excluded from the domain within which the distributive principles operate).

Someone ardently opposed to the philosophical examination of the moral justifiability of states’ membership decisions might argue that we can set membership questions aside, assuming that they have been just, and then reason about how states ought to distribute important social goods among members. However, states’ membership decisions affect distributional patterns, domestically and internationally. States’ decisions about how many and which foreigners to admit can alter the opportunities and well-being of present members; and, as I note in Chapter 2, members who belong to social groups that are already disadvantaged are the most vulnerable to the negative impacts of states’ admissions decisions. Moreover, political philosophers who believe that states and their citizens can have obligations to other states and to individual foreigners may not dismiss the moral significance of states’ membership decisions for two additional reasons. First, most obviously, the opportunities and well-being of prospective immigrants are profoundly influenced by states’ admissions decisions. Second, equally significantly, but less often appreciated, states’ decisions about how many and which prospective immigrants to admit may have grave consequences for economic and human development prospects in poorer countries.

1.4.2 Preliminary Objections: Immigration in a Realistic Utopia

In this subsection and the next I consider arguments that deny that immigration policy is a significant topic for political philosophy. The first comes from Rawls, who argues in The Law of Peoples, as I just noted, that assessing the justice of states’ immigration policies is not an urgent task for political philosophers. Rawls derives his theory of international justice by reasoning about what obligations states (or, as Rawls would have it, “Peoples”) would have to one another in a “realistically utopian” international order (or “Society of Peoples”). Given the circumstances that characterize the realistically utopian international order, Rawls infers that very little transnational migration would occur in it. Thus, he concludes, “The problem of immigration. . . is eliminated as a serious problem in a realistic utopia” (Rawls 1999: 9).

Rawls defines a realistically utopian international order as one in which all domestic political orders are liberal (that is, they possess an internally just constitutional democratic government) or at least “decent” (in which internal institutions are hierarchical, but nevertheless allow for the right of citizens to play a substantial role in making political decisions) (Rawls 1999: 17). A realistically utopian Society of Peoples excludes other kinds of domestic political orders, including “outlaw states” (regimes that refuse to comply with a reasonable Law of Peoples, and that engage in aggressive war (Rawls 1999: 90)), burdened societies (“societies whose historical, social, and economic circumstances make their achieving a well-ordered regime . . . difficult if not impossible” (Rawls 1999: 4)), and benevolent absolutisms (which honor human rights but deny members a meaningful role in political decision making (Rawls 1999: 3)).

There are four causes of immigration, in Rawls’ view, and each “would disappear in the Society of liberal and decent Peoples” (Rawls 1999: 9). The first is “the persecution of religious and ethnic minorities, the denial of their human rights,” and the second is “political oppression of various forms” (Rawls 1999: 9).° Third, “often people are simply fleeing from starvation,” which, Rawls says, is typically “caused by political failures and the absence of decent government” (Rawls

1999: 9). Finally, immigration may be caused by “population pressure in the home territory” (Rawls 1999: 9). Rawls cites the social inequality and subjection of women as the primary cause of overpopulation, but notes, “once that inequality and subjection are overcome, and women are granted equal political participation with men and assured education, these problems can be resolved” (Rawls 1999: 9). Since each of immigration’s four causes are due to political dysfunction in sending countries, and since such political dysfunction does not occur (by definition) in liberal and decent societies, immigration will not occur on a scale, or for reasons, that warrant the attention of political philosophers in a realistically utopian international order.

We must ask, then, why Rawls takes the realistically utopian Society of Peoples as the starting point for international political philosophy. Rawls invokes a utopian conception of the international order that abstracts away from many of the particularities of the actual international order in order to allow the derivation of general principles of international justice that apply in worlds other than this one.* However, this utopian conception of the international order must be realistic if it is to apply to our world.