On the Right of Exclusion: Law, Ethics and Immigration Policy

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People do not forfeit their right to be secure in their persons and their possessions simply in virtue of being present without authorization. The right to a fair trial and the right to emergency health care are other examples. The fact that people are legally entitled to certain rights does not mean that they actually are able to make use of those rights.

It is a familiar point that irregular migrants are so worried about coming to the attention of the authorities that they are often reluctant to pursue legal protections and remedies to which they are entitled, even when their most basic human rights are at stake.

This creates a serious normative problem for democratic states. It makes no moral sense to provide people with purely formal legal rights under conditions that make it impossible for people to exercise those rights effectively. Irregular migrants should enjoy most of the civil, economic, and social rights that other workers enjoy. What is to be done? There is at least a partial solution to this problem. States can and should build a firewall between immigration law enforcement on the one hand and the protection of basic human rights on the other.

We ought to establish as a firm legal principle that no information gathered by those responsible for protecting and realizing basic human rights can be used for immigration enforcement purposes. We ought to guarantee that people will be able to pursue their basic rights without exposing themselves to apprehension and deportation. For example, if irregular migrants are victims of a crime or witnesses to one, they should be able to go to the police, report the crime and serve as witnesses without fear that this will increase the chances of their being apprehended and deported by immigration officials.

If they need emergency health care, they should be able to seek help without worrying that the hospital will disclose their identity to those responsible for enforcing immigration laws. I cannot develop the details here, but roughly the same pattern of argument applies to many other areas of legal rights.

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The children of irregular migrants should be entitled to a free and compulsory education in the public schools because that sort of education should be regarded as a basic human right for anyone living within a society. There should be a firewall between the provision of these educational services and the enforcement of immigration laws. Again, these rights can only be effective if they are backed up by a firewall with respect to immigration enforcement. As the list of rights grows, one might ask whether there are any rights that authorized immigrants have to which the unauthorized immigrants are not entitled.

Even these constraints are not absolute, however.

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That applies even in the case of those who have settled without authorization. When people settle in a country they form connections and attachments that generate strong moral claims over time.


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After a while, the conditions of admission become irrelevant. This recognition of the moral importance of the length of stay, even if unauthorized, is reflected in the practices of many states, both in the granting of general amnesties to unauthorized residents which are almost always limited to those who have already been in the country for an extended period and in the common practice of allowing for exemptions from the normal rules of deportation on compassionate and humanitarian grounds, which in turn are almost always linked to long residence in the country.

I do not mean to suggest that everyone accepts this, however. The law almost never recognizes an individual right of unauthorized residents to stay except occasionally with respect to those who have been present as children. Moreover, many would object to amnesties whether individual or collective on the grounds that they reward lawbreaking and encourage more unauthorized immigration. Nevertheless, in my view, long-term settlement does carry moral weight and eventually even provides grounds for a moral right to stay that ought to be recognized in law.

Let me turn now to questions about who should get in. But no one really believes this if pressed. There is no moral carte blanche. One obvious constraint on immigration policies is the principle of non- discrimination. No one today would claim that a democratic state could legitimately bar African and Asian immigrants just because of their racial or ethnic origins, though this is precisely what Canada, the United States, and Australia did quite openly in the past. To exclude immigrants on the basis of race or ethnicity is a fundamental violation of democratic principles.

The same principle applies to religion. There is no possible justification within a democratic framework for excluding people because of their religion. Today, of course, it is Islam that is the focus of exclusion, though religion is often intertwined here with race and ethnicity.

Many people in Europe and North America are afraid of Muslims as in years past they were afraid of Catholics and Jews. Western states know that open discrimination against Muslims is incompatible with their principles, and that is precisely why, if they do seek to exclude Muslim immigrants, they usually try to conceal what they are doing when they restrict such entrants. They do not openly announce these exclusions as they did in their racially exclusive policies in the past , but find other pretexts and justifications—couched in neutral terms but designed to have particular effects.

As the old saying goes, hypocrisy is the tribute that vice pays to virtue. Democratic states are morally obliged to admit the immediate family members of citizens and residents. It is worth noting first that family reunification is primarily about the moral claims of insiders, not outsiders. Democratic states have an obligation to take the vital interests of their own members into account. The whole notion that individual rights set limits to what may be done in the name of the collective rests upon this supposition.

People have a deep and vital interest in being able to live with their immediate family members. No one disputes this. But why must this interest in family life be met by admitting the family members? Could it not be satisfied just as well by the departure of the family member s present to join those abroad assuming that the state where the other family members reside would permit this?

On the Right of Exclusion: Law, Ethics and Immigration Policy | Taylor & Francis Group

Why is the state obliged to shape its admissions policies to suit the locational preferences of individuals? The answer to this question is that people also have a deep and vital interest in being able to continue living in a society where they have settled and sunk roots. Of course, people sometimes have good reasons of their own to leave and sometimes face circumstances that require them to make painful choices.

If two people from different countries fall in love, they cannot both live in their home countries and live together. So, people must be free to leave. But no one should be forced by the state to choose between home and family. States do not have an obligation to admit people whom they have good reason to regard as a threat to national security, for example, even if they are family members. Some special justification is needed to override the claim to family reunification, not merely the usual calculation of state interests. Most democratic states acknowledge this principle, and that is a major reason why there has been a significant continuing flow of immigrants into Europe even after European states stopped recruiting guest workers.

We now see some European states trying to restrict this right at the margins e. These restrictions deserve criticism because they conflict with the principle of family reunification, but so far no European state has directly attacked the principle itself, nor could any state do so without abandoning its commitment to democratic principles and human rights.

Finally, the concept of family reunification raises interesting questions about cultural variation in the definition of family.


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  • I cannot pursue those issues here, but let me simply assert the proposition that justice requires that democratic states admit same-sex partners for purposes of family reunification. Some states already do this. Now consider refugees. They need new homes. Who should provide those homes? What obligations do we have, if any, to admit refugees? Clearly, we have a moral responsibility to find homes and permanent solutions for refugees who have had to flee their homes because of our actions.

    Americans—whether supporters or opponents of the war— recognized this in the wake of the Vietnam War and took in hundreds of thousands of refugees from Vietnam, Cambodia, and Laos. Americans have the same sort of obligation towards refugees from Iraq and Afghanistan, especially those who have been forced to flee because their lives are in danger as a result of their cooperation with Americans. This issue should have nothing to do with whether one supports or opposes these wars.

    It is deep moral failure that Americans have done so little in this regard. All rich countries have responsibilities for refugee flows that we can already foresee.

    On the Right of Exclusion: Law, Ethics and Immigration Policy - eBook

    We should already be starting to think about who ought to take in ecological refugees—people forced to flee their homes because of global warming and the resulting changes in their physical environment. Clearly the rich industrial states bear a major responsibility for the changes that are already taking place. It is our responsibility, not those of geographically-proximate states, to find a place for these people to live. Given the divergence between what justice requires and what serves our interests in this case, I am not optimistic about the likelihood of our meeting our responsibilities, but that is no reason not to acknowledge them in a philosophical inquiry like this one.

    Finally, we have obligations to respond to the plight of refugees even when we are not responsible for their situation. The failure of other states to respond to the plight of Jews fleeing Hitler is one of the great shames of modern history.

    The Holocaust was an important part of the impetus behind the creation of the modern refugee regime, a regime that promised that no refugee would be turned away, that refugees would be able to find new homes. Some will object that many people claim to be refugees when they are really just economic migrants, looking for a better life.

    There is no doubt that some people, even many people, seek refugee status who would not qualify even under a generous interpretation of the provisions of the Geneva Convention or other refugee legislation. It is also the case, however, that the rich industrial states have systematically tried to prevent everyone who might be able to file a plausible refugee claim from coming. All rich states have imposed visa requirements and carrier sanctions that are entirely indiscriminate in their exclusions Gibney When people do arrive seeking protection, they are often met with narrow legal interpretations that deny them refugee status even though officials cannot send them back where they came from because they know that they would be in danger.

    They wind up in limbo for years. This is a profound moral failure, but I confess that the gap between our interests and our moral duties is so great here that I despair of a feasible solution. Why should borders be open? Borders have guards and the guards have guns. This is an obvious fact of political life but one that is easily hidden from view—at least from the view of those of us who are citizens of affluent Western democracies. If we see the guards and guns at all, we find them reassuring because we think of them as there to protect us rather than to keep us out.

    To Africans in small, leaky vessels seeking to avoid patrol boats while they cross the Mediterranean to southern Europe, or to Mexicans willing to risk death from heat and exposure in the Arizona desert to evade the fences and border patrols, it is quite different.

    To these people, the borders, guards, and guns are all too apparent, their goal of exclusion all too real.