Introduction As state borders become increasingly restricted and


Introduction  

In the midst of a global migration
crisis, can restricting immigration be viewed as a justifiable necessity, or an
unpalatable and unethical act in the face of adversity? As state borders become
increasingly restricted and the allure of inter-state travel increases, Miller
(2005) depicts the topic of migration as “a highly charged political issue” due
to the recent conflicts in the Middle East coupled with the fallout from
implications of global inequality.

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This essay will argue that states can
be justified in restricting immigration, however expresses that there is a
global necessity for states to find conditions for ethical immigration
policies. In order to achieve this aim, this essay will identify the reasons
why individuals choose to migrate, or in other scenarios coerced to leave their
home countries. Firstly, this essay will analyse the position of states
restricting immigration, and questions the extent to which states can justify
such a decision. Secondly, it will examine Carens and Miller’s egalitarian
ideas of immigration which critically analyses the complexities of population
control, the preservation of indigenous communities and the concept of ‘public
order’ and national security which can justifiably allow states to restrict
immigration. It will examine Ypi’s opposing view on the humane concerns which
considers the right to the freedom of movement and the plight of refugees
followed by Yong’s assessment of distributive justice – which conflict with the idea of states restricting
immigration.

 

Ethical immigration policies should
provide liberal immigration rights which permits immigration within reason at a
state’s discretion under the guidance of an international body; however, it is
necessary to understand the political, economic and potential social issues
immigration can provoke.

 

 

The Question of Immigration

In this essay, the concept of
immigration is understood to be inter-state immigration which in theory should
uphold the right of exit, as well as the right of entry from one state to another.

Immigration can be described as the movement of an individual from one state to
another for limited or permanent relocation (Kukathas, 2002). I define the idea
of immigration in this essay to encompass the plight of economic migrants,
refugees, asylum seekers and all other individuals who seek protection and
safety in other states. I shall refer to the receiving state of immigration as
‘entry-state’ and the state within which individuals have either chosen or been
coerced to leave as ‘exit-state’. This essay will henceforth ascertain the
extent to what circumstances can states justifiably restrict immigration.

 

According to the House of Commons
(2017), the main reason why non-EU Citizens chose to migrate to the UK in the
year-ending March 2017 was employment, while formal study was the secondary
reason. These reasons accounted for a third; and a quarter respectively, of
approximately 255,00 interviewed. Moreso, due to civil unrest in various parts
of the world, the Independent reported that more than five million men, women
and children have fled Syria (Dearden, The Independent, 2017). The
displacement of millions of vulnerable people places pressure on prospective
entry-states as these individuals seek basic human rights of shelter and
safety, and are justified in seeking these requirements under International
Human Rights Law. Miller suggests that although entry-states under law, are
required to accommodate the plight of the world’s vulnerable, entry-states are
only permitted to do so by discretion in ways which are deemed compatible with
state affairs and the liberties of members of state.

 

How can states justify restricting
immigration – National Security

States often use national security as a
pretext for imposing immigration restrictions. Carens believes that
  entry-states are justified in restricting immigration on the
grounds of national security (1992). He argues, firstly,
 that  “they would threaten the liberal character of the regime
if admitted and people who pose a serious threat to national security can
legitimately be excluded” (1992, p. 28, 29). Carens does not suggest that
individuals of differing beliefs and values cannot coexist symbiotically as
this would imply racial disjuncture; however Carens’ “claim of asymmetry”
(1992, p. 29) suggests individuals who gain access to an entry-state of
differing political practises with plans of overthrowing the entry-state can be
justifiably restricted. In the scenario of members of an exit-state forming an
alliance against the entry-state, liberal egalitarians would face a difficult
decision in removing the rights of some to defend the safety and protection of
others in a state. This would involve removing an individual’s right of exit
from a state, and does not exactly encompass the right of entry which is also
necessary for the clause of immigration in this essay. It is justifiable
to restrict immigration on these grounds, however, it is difficult to
differentiate an individual’s intention on the basis of national security in
the situation of an immigrant application. It becomes questionable on what
grounds would an entry-state be able to justifiably prove that an individual
seeking to gain access would have the intention to prove a threat to national
security without in some ways invoking racial or cultural bias. Although
unjust, the current President of the United States of America, President Donald
Trump, has signed an executive order which has banned travel into the States
from citizens of seven states including: Iran, Iraq and Yemen due to terrorism
claims (Goodman, BBC News, 2017).

 

It is fundamental to understand Rawls’
(1971) ideology of liberty forms a firm foundation for the argument which
defends states justifiably restricting immigration as, similar to Carens, Rawls
presents the scenario of “certain disruptions of public order and security
which might form a threat to the freedom of all people” (1971, p. 96) It is
plausible to therefore defend this claim that individuals who present a threat
to the public order can be justifiably restricted as the risk of impeding the
liberties of all members of a state would lead to a “breakdown in public order”
as expressed by Miller and Ypi (2005, 2008). Miller further suggests that
completely open borders of a state would lead to an infringement on the
personal liberties and welfare on all members of a state as this would cause a
strain on vital elements of society (2005). This would therefore suggest that
on the basis of national security, restricting immigration can be justified by
a state.

 

How can states justify restricting
immigration – Preservation of Indigenous Communities

The preservation of indigenous communities
is argued to be a justifiable reason for states restricting immigration. Ivison
(2000) presents the argument of the “protection of indigenous aspirations”
within the context of restoring and maintaining liberal notions of equality of
all members of a state. This notion of preserving indigenous communities is
useful in justifying immigration restrictions when this factor is linked to
high economic performance of a state which ultimately stems from a long-term
legacy or tradition which shows an existing way of life when the majority of
the population is homogenous. This homogeneity is a result of the presence of a
unique culture, language, politics, tradition and history which Carens proposes
would be “threatened by immigration” (2005).

 

Carens presents Japan as a case study
to argue the notion that states can justifiably restrict immigration. It is
notable to understand that Carens suggests Japan is “a preliminary case for
exclusion” as although Japan is not a completely homogenous country, it can be
understood that Japanese culture is so deeply rooted in tradition and a history
spanning over 2000 years, it would be a difficult society to completely adapt
to from an outside perspective due to a distinctive language, politics and
culture. This does not suggest that Japan is averse to immigration, however
Japan is presented as a state which places greater emphasis on the protection
of “cultural cohesiveness” with members of the state residing in the country
already, as opposed to individuals seeking to gain entry to the state as an
immigrant.

 

Miller echoes a similar sentient which
purports the importance of language in the significance of immigration
threatening “one of the community’s most important distinguishing
characteristics” (2014). In the case that the Japanese language were to
disappear due to mass immigration, it is plausible to contend that immigration
would threaten the preservation of an indigenous community such as the Japanese
and therefore can be considered a reason for justifiably restricting
immigration. Miller also argues that on the basis of language, states are
justified in differentiating between prospective immigrants who can or cannot
speak the national language of a state as shown in the government of Quebec.

This example of the government of Quebec suggests that states are able to
select immigrants on the basis of ease of assimilation into a new state. As
individuals gain access to an entry-state entry with prior knowledge of the
language, they would therefore be better equipped to adapting to a new society
by finding work and building social networks with those who speak the same
language. It is therefore credible to ascertain that on the basis of language,
an influx of immigrants who do not speak the native language of the state gaining
access to a state are capable of threatening the preservation of an indigenous
community and hence a considerable factor to justify states restricting
immigration.

How can states justify restricting
immigration – Population Control

Population control is considered to be
a justifiable reason for states restricting immigration. Kukathas argues that
immigration can be determined an issue for states as accepting immigrants
“impose costs on society” (2014). This implies that in a state such as the UK
where a welfare state is present which provides free education, assisted
housing and a health-care system for members of state, immigration places
external pressure on state resources due to an influx of individuals. This in
turn presents a situation which infringes on the liberties and rights of
members of state. Under the similar public order clause, it is therefore
justifiable to restrict immigration on grounds of a population which is
incompatible with state resources.

 

It is important to understand that the
notion that all immigrants are a complete economic drain on state finances is
illusory as immigrants are able to work in the UK for limited periods of time,
and are expected to contribute to the state via National Insurance tax. Carens
presents the brain drain argument which purports that the migration of the
highly skilled from less economically developed states to more economically
developed states in search of better professional opportunities “increases
global inequalities” as their home states are deprived of vital skills and
expertise which is necessary for the economic future of their home state
(2005). Due to this, it can be accepted that immigration still has negative
effects on a global scale as although individuals may experience greater personal
utility, their home states are predicted to face greater economic decline. With
over 255,000 non-EU citizens gaining entry to the UK in 2017 alone, the
prospect of states being able to facilitate a population increase diminishes
due to geographical restrictions over space and natural resources. This leaves
the question – on what grounds can states choose which immigrants to grant
entry to a state, and is this method of selection justifiable?

 

However, the individuals who are
typically granted entry into the UK under legitimate immigration status are
considered to be refugees and asylum seekers who have been forced to leave
their countries due to civil unrest and persecution – seeking safety and
protection in another state. Under Article 3 of the Universal Declaration of
Human Rights which expresses the law of “right to life, liberty and security” a
state such as the UK is obligated to grant entry to vulnerable individuals,
however if these rights are to infringe on the collective rights of others, states
are justified in restricting immigration to an amount which does not affect
members of the state negatively as a whole.

 

On what basis can states not justify
restricting immigration – Right to Freedom of Movement

The right to freedom of movement is
believed to be a fundamental human right and is justified by the vital
interests that it protects (Griffin, 2001; Nickel, 1987; Shue, 1980) and
therefore renders states unable to justifiably restrict immigration absolutely
on these grounds.

 

Ypi presents an argument which debates
that the right to exit should also facilitate the right to entry as “the
asymmetry between emigration and immigration points to a serious moral
deficiency in theory” (2008). This argument addresses the current
incapabilities of immigration law which permits individuals the right of free
movement within a state, and also the right to leave and return to their home
state (UN General Assembly, art. 13, 1948). The exception of the right to gain
entry to another state is questionable as the decision of the right to entry is
determined solely by a state, on a state-by-state basis. With the parameters of
this verdict left to each individual state, and not enshrined in international
law, there is an undeniable risk of discriminatory and possible racial bias –
which in turn does not allow all members, and prospective members of state to
exercise said right to freedom of movement. Ypi further argues that “open
borders would resolve the problem of inter-state migration” as this would
allocate new pressures on the state internally and would thus lead to another
potential intra-state migration problem (2008). This does not suggest that open
borders would create a utopia, but moreso shows greater compatibility with
migration law.

 

There is a premise for asylum seekers
and refugees to receive protection from the entry-state, however, Miller
suggests the right to freedom of movement “serves only as a remedial right”
(2005). In this situation, an individual can only be granted entry to a state
justifiably on the premise that their basic needs cannot be met in their home
country. Thus it is credible to ascertain that states cannot justifiably
restrict immigration absolutely on the grounds of providing immediate protection
for the most vulnerable who would otherwise perish as they are unable of
facilitating basic human needs in their home state.

On what basis can states not justify
restricting immigration – Distributive Justice

 

Under the clause of distributive justice,
it is argued that states cannot justifiably restrict immigration. Yong’s
description of distributive justice is based on Rawls’s Difference Principle
which “licenses inequalities in economic prospects that work to the
greatest benefit of the least advantaged” (2016). This suggests that
distributive justice prevents entry-states from prioritising current members of
state over the needs of prospective members of state under art. 1 of the
Universal Declaration of Human Rights which promotes the equality of all
in dignity and rights. Yong further proposes that labour immigration leads to
“skill-selective immigration policies” and increased economic prospects as
skilled individuals who are granted entry to a state would therefore contribute
towards the state in the form of taxes.

 

Carens compares citizenship to a fixed
‘feudal’ status as this has a direct influence on an individual’s
opportunities, and henceforth Miller suggests it is “fundamentally unfair that
people are condemned to relative poverty” in a situation that is beyond their
control (2014). Miller further argues that distributive justice will grant all
individuals their fundamental human right to live and work at a basic human
level. It is however questionable to what extent can an individual claim
distributive justice and also, how can this justice be manifested. The concept
of distributive justice can allude to directly assisting vulnerable individuals
seeking to gain access to an entry-state, but can also imply ensuring that an
individual’s rights are simply respected. It is however agreed that everyone
has a right to a decent standard of living and therefore suggests that due to
distributive justice, states cannot restrict immigration justifiably as this
denies individuals basic human rights.

Conclusion

 

Thus, the concept of states restricting
immigration is indeed justifiable, as arguments proposed by Carens and Miller
suggests issues such as population increase has an overall negative effect on a
state. It is difficult to absolutely define states as unjust to restrict
immigration, and should therefore permit states to allow immigration to a
certain limit to maintain a degree of distributive justice. However, Ypi’s
proposal of introducing a general principle of justice in migration will provide
an impartial foundation for immigration policies encompassing all states;
therefore, enabling a spectrum on which states can mutually operate to reduce
mass immigration pressure on select states (2008). As illustrated, states are
justified in restricting immigration but these decisions must uphold
fundamental human rights of all and move together towards inclusive immigration
policies. 

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