The Basis for Immigration and Asylum Decisions

For the Purposes of Immigration Law, On What Basis Should States Decide Who To Admit, and Who To Refuse?

Introduction

It is often asserted that states are free to decide which individuals they may admit and refuse entry and settlement to. In creating relevant legislation, Liberal, western states (which will be the focus in this essay) often distinguish individuals by their culture, their financial circumstances, and any human rights issues at play. However, reliance on any of these factors has an impact on the state’s relationship with the global community, and all carry ethical issues of differing weights. In this essay, it will be argued that the paramount concern for immigration authorities is preserving public order, in a similar argument to that of Joseph Carens¹. Public order, in this context, will be argued in the form of economic stability. As a result, immigration restrictions should be levelled at the economic migrant, and should be based on the financial circumstances of the individual seeking entry and settlement. By restricting in this manner, we can tackle the practical problems of immigration and its impact on host states. Simultaneously, it allows us to preserve the stronger moral duty of accepting those from other cultures, and those who face human rights abuses in their home states.

Decisions Based On Financial Circumstances

In his book, Carens argues that immigration should only be restricted on the same basis as any other liberty; to maintain public order and security². In Carens’ typically Liberal view, a person or group may only be restricted from moving across state borders if they represent a risk to the public order. Using Carens as a starting point, it can be argued that migrants often pose an economic risk to public order.

It is a commonly held view that an influx of economic migrants places a huge strain on the host state and its infrastructure; there may be negative effects on the job and property market, or the social welfare system. In light of these concerns, Walzer proposes a somewhat Utilitarian solution. States blessed with abundant space and resources should adopt more liberal immigration policies³, and conversely, poorer states with overcrowding issues could enforce much stricter immigration policies, in order to protect the financial interests of their existing citizens.

This Utilitarian method of determining who to admit and refuse (with finances at its heart) is arguably already in practice in the European Union, by way of Article 7 of Directive 2004/38. Article 7 states that should an EU citizen choose to migrate to another EU State, they must ‘have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State’⁴. The United Kingdom has also adopted this Utilitarian method, permitting migrants with better job prospects to advance through the entry and settlement process quickly by virtue of the Tier system⁵. As a result, to protect economic stability, only those migrants with the best chance of contributing to State growth should be admitted and allowed to settle.

However, the above argument moves from the presumption that mass economic migration serves to damage the economic growth of a state, which may not necessarily be the case. Seglow asserts that, contrary to popular belief, migrants are rarely a burden on their host states. He notes that ‘they are keen, able and ready to work, often in low-paid jobs that locals are reluctant to do, or in dirty, difficult and dangerous occupations’⁶. It is on this view that some, like Barry and Goodwin, argue that in a world where trade is conducted and capital is moved freely across the world, we should also embrace the idea of free movement of workers⁷. Indeed, though operating in accordance with Directive 2004/38, Article 45 of the Treaty on the Functioning of the European Union allows for the free movement of workers – a clause created to strengthen the Union⁸. This policy could realistically be introduced on a global scale on the same reasoning.

However, the prospect of mass economic migration must also be assessed from the perspective of states of origin – the homelands of economic migrants. Borta notes of the “Brain Drain Hypothesis”; the theory that holds that mass economic migration to wealthier, developed states would leave poorer, developing states with a smaller, less skilled workforce⁹. Therefore, by introducing more liberal rules for economic migration, states may be inadvertently damaging migrants’ states of origin. This is particularly true when speaking of only permitting skilled migrants to enter and settle. As Seglow notes, ‘Highly skilled migrants such as doctors or CEOs disproportionately benefit their states of destination’¹⁰. Rules like those to be attached to Tier 2 visa applications in the UK (Non-EU workers in this category must earn at least £35,000 per year¹¹) therefore seem justified, in order to ensure migrants remain in their country of origin, promoting its growth.

Restrictions Based on the Cultural Divide

It could be argued that decisions on who to admit and refuse should be made on the basis of cultural preservation. Walzer argues that a ‘lack of internal cohesion’¹² will inevitably follow if states fail to refuse entry and settlement to those of certain cultural backgrounds. This idea of maintaining cohesion, at least in some scenarios, appears reasonable. For instance, in immigration matters, the UK does not recognise polygamous marriages¹³; this is primarily because such an acceptance would have profound effects on UK property and family law, which have developed in line with our monogamous culture. As a result, there are grounds on which host states can refuse migrants of certain cultural backgrounds, in light of cultural cohesion issues.

Matters are only made worse when one considers cultures that are not only different to ours, but fundamentally conflict with our core values. If a state were to ignore the cultural backgrounds of the migrants entering and settling within their borders, there would be no basis upon which to prevent dangerous individuals like white supremacists, Islamic fundamentalists or those who practice female genital mutilation from entering. As a result, it is only in an ideal world where Liberal values are commonly shared that culture-blind immigration policies can exist. Indeed, Carens admits that despite his Liberal outlook on immigration, ‘no state is obliged to admit saboteurs or subversives’¹⁴.

Integration as Remedy?

Perhaps a compromise to the problem of culture would be to create immigration policies that give migrants the opportunity to integrate with host state norms, aiding cohesion. This middle ground is already common practice in the UK with the ‘Knowledge of Life in the UK’¹⁵ test, and the United States of America, which operates a similar naturalisation test¹⁶. Where no efforts are made to integrate people of different cultures, Huntington suggests that the mixture of cultures would eventually result in an ethnic strife similar to that seen in the former Yugoslavia¹⁷. In milder terms, Walzer believes that an absence of integration measures will create a society of ‘a thousand petty fortresses’¹⁸, in which tiny cultural communities will form in isolation from one another. His view is supported by Alba and Nee, who noted that migrants often group together after they have entered and settled in a host state¹⁹, implying a genuine difficulty in integrating. Therefore, it can be argued that immigration restrictions based on cultural differences can be justified; individuals who possess the ability to integrate with host state culture should be admitted and permitted to settle.

The Fluidity of Culture

However, it may be that creating immigration policies on cultural grounds is effectively futile, given the fluid nature of culture. Indeed, (and particularly true in the Information Age) culture is not necessarily physically imported into a state; cultures grow and move beyond the control of borders and laws, often spread by, for example, word of mouth. Conversely, there are cases in which, despite a lack of immigration restriction, cultures stay remarkably different. For instance, Carens notes that the American states of California and Kansas, despite being within one country, are very culturally distinct²⁰. Therefore, it may be that immigration restrictions based on cultural differences would do very little to maintain cultural cohesion.

Moreover, Wax provides an argument that highlights a potential hypocrisy; to refuse the admission of individuals of particular cultures ignores the fact that it was the import of those cultures that ultimately brought our own to its current form. He notes that ‘what is now called western culture by now is incorporating so much more than the traditions of Euro-North America’²¹, and gives the example of the Western alphabet and number system, which originate from Phoenician and Arabic culture respectively. As a result, immigration policies founded on notions of culture are simply misguided.

Human Rights Arguments

Despite being called the ‘chief representative for border restrictions’ by Scheffler²², it is Walzer that notes that ‘the victims of political or religious persecution make the most forceful of claims for admission’²³. However, despite the strong moral justifications for admitting individuals on human rights grounds, there are grounds to suggest that even these individuals must be subject to some sort of scrutiny.

The strongest argument for the scrutiny of migrants who seek to rely on human rights to gain entry and settlement comes from the fact that those same human rights are often exploited. For example, in the European context, sham marriages take advantage of the right to a Private and Family Life, enshrined in Article 8 of the ECHR²⁴. Because these marriages are only entered into for immigration purposes, the right is not being exercised correctly. As such, states like the UK are justified in requiring that evidence be produced to prove that the marriage is ‘genuine and subsisting’²⁵. Additionally, there are individuals who claim to be facing persecution in their home state by virtue of their religion, nationality or political view (which would grant them refugee status under the 1951 Refugee Convention²⁶), even though no such persecution is happening. Exploitation of the human rights system seemingly justifies the need to scrutinise and potentially restrict migration, so as to only permit those with genuine cases.

The spectre of human rights violations means determining which cases are genuine and which are not is incredibly important; as Carens notes, ‘Refusal of entry to a refugee seeking asylum leads directly to his or her suffering’²⁷. Moreover, those seeking to rely on human rights provisions often have little or no evidence to prove the direness of their situation. To make matters worse, judging cases is rarely one hundred percent accurate, or fair. Writing on the immigration system of the United States, Stern notes that ‘even when a refugee presents a strong asylum claim, the INS generally contests the application’²⁸. History also warns us of the over-scrutiny of human rights cases; many German citizens were refused asylum in neighbouring countries in the years leading up to the Second World War, as few were able to predict the catastrophic events that were to follow. As a result, there could never be instances in which refugees are refused entry or settlement in a host state, and, perhaps more importantly, scrutiny of their cases must remain very light.

Conclusion

It appears that moral and practical issues are constantly at the forefront of the immigration debate, and are often in conflict with one another. As a practical matter, there is considerable need to restrict the migration in order to maintain public order and stability in host states, who inevitably put the needs of their existing citizens first. Conversely however, there exists a moral duty to provide human rights to those who seek it, and, perhaps more profoundly, accept the nebulous situation differences in culture places us in. A balancing act must therefore be conducted, so that our greatest moral duties are satisfied alongside consideration of practical issues. Therefore, it seems that financial status is the only basis upon which we can determine who to admit and who to refuse, as refusals in the context of culture and human rights seem far too at-odds with the core values of Western Liberal states.

Footnotes

¹ J. Carens, ‘Aliens and Citizens, The Case For Open Borders’ (1987), The Review of Politics Vol.49, No.2, p.249.

² Ibid.

³ M. Walzer, Spheres of Justice: A Defence of Pluralism and Equality (Basic Books 1984), p.129.

⁴ Free Movement of Citizens Directive 2004/38/ec, Art.7(1)(b).

⁵ Immigration Rules Part 6A.

⁶ J. Seglow, ‘The Ethics of Immigration’ (2005), Political Studies Review Vol.3, Issue 3, p.326.

⁷ B. Barry, R. Goodin, Free Movement (London Harvester Wheatsheaf 1992), p.250.

⁸ Treaty on the Functioning of the European Union (2007) , Art.45.

⁹ O. Borta, Brain Drain Controversy, (Linkoping University 2007), p.19

¹⁰ Seglow (n 6), p.330.

¹¹ See ‘Statement of Intent: Changes to Tier 1, Tier 2 And Tier 5 of The Points Based System: Overseas. Domestic Workers; and Visitors’ (Home Office 2012), available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/117953/tiers125-pbs-overseas-soi.pdf (accessed 24/10/2015).

¹² Walzer (n 3), p.240.

¹³Immigration Rules Part 8, Paragraph 277.

¹⁴ Carens (n 1), p.50.

¹⁵ Immigration Rules Part 1, Paragraph 33B.

¹⁶‘A Guide to Naturalization’, US Citizenship and Immigration Services, USCIS Publication M-476.

¹⁷ In K Johnson, ‘National Identity in a Multicultural Nation: The Challenge of Immigration Law and Immigrants’ (2005), Michigan Law Review Vol102, No6, p.1347.

¹⁸ Walzer (n 3), p.50.

¹⁹ R. Alba, V Nee, ‘Rethinking Assimilation Theory for a New Era of Immigration’ (1997), International Migration Review Vol 31, No4, p.854.

²⁰ Carens (n 1), p.265.

²¹ M. Wax, ‘How Culture Misdirects Multiculturalism’ (1993), Anthropology & Education Quarterly, Vol. 24, No.2, p.112.

²² S. Scheffler, ‘Immigration and the Significance of Culture’ (2007), Philosophy & Public Affairs Vol.35, p.105.

²³ Walzer (n 3), p.49.

²⁴ European Convention on Human Rights (1950), Art.8.

²⁵ Immigration Rules Annex FM 2.0.

²⁶United Nations Convention Relating to the Status of Refugees (1951), Art.1.

²⁷ Carens (n 1), p.47.

²⁸ J. Stern, ‘Applying the Equal Access to Justice Act to Asylum Hearings’ (1988), Yale Law Journal Vol. 97, No.7, p.1459.