Basic rights, membership and the UK’s toxic immigration debate

From Monday we’ll be running an online symposium on Joseph Carens’s brilliant The Ethics of Immigration. (It is the book that sets a new standard for what “long-awaited” means.) So stay tuned. Meanwhile, I was speaking yesterday at a seminar organized by Democracy Forum at the House of Commons on “Immigration: Liability or Asset”. My talk, which shows the influence of Carens’s work in many respects, is below the fold.

Immigration: liability or asset?

Many people, asked whether immigration is a liability or an asset, will interpret the question in a straightforwardly economic way. They will wonder what the economic facts are, and whether immigration tends to boost national prosperity or whether it imposes unacceptable costs on that stock character from political rhetoric, “the taxpayer”. Those broadly in favour of immigration, if they suspect the economic facts may be against them, will then sing the benefits of cultural diversity and ethnic cuisine. Those against it will warn darkly of the low tolerance of voters for too much change and point to actual or imagined popular anxieties about the disappearance of the familiar.

I have no special expertise on the economic questions and I am also somewhat sceptical about how far it is a legitimate goal of public policy to promote or defend private tastes and preferences about cookery, diversity or anything else, particularly if doing so comes at the expense of the rights of others. So I intend to take a different tack, noting first that it is an important responsibility of the state to protect and defend the most vital interests of its members, and second that we have to ask “liability or asset for whom?” The first question has to do with a wider range of interests that citizens and others have that go beyond the merely financial, including interests in choosing for oneself the kind of life one wants to lead and where and with whom one wants to lead it, together with interests in not being subject to injustice and unfair discrimination; the second with who gets to be included within the class of people whose interests should be promoted and defended by the state. Both of these raise questions of principle, questions of what a legitimate state must and may do, and who it is answerable to. These are questions that have been pushed to the margins of recent policy debate in the UK, with, I believe, disastrous and immoral consequences. This is, in part, because politicians have been reckless about considerations of principle and guided overwhelmingly by immediate electoral concerns. As a consequence, we get policy objectives like the net migration target, which issue in damaging policies like restrictions on the right to form a family with the person one loves, in attempts to create a “hostile environment” for irregular migrants, and sundry other measures.

To take one example, the right to form a union with the person you love, to settle down, perhaps to have a family, is a pretty basic right. To their great credit, politicians of all parties now recognize that this right should not be arbitrarily restricted to heterosexuals. Similarly politicians have much to say about the importance of the family and family life to British society, they praise “hard-working families” and depict themselves as family-friendly. The right to family life is, of course, also recognized by the European Convention on Human Rights.

The right to family life is not absolute, of course, and we intervene in families when they are sites of violence and abuse and have systems to deal with that. But it is a pretty important right, corresponding to a basic interest that people have. Not one to be lightly disregarded or overridden. Having rights of any kind are an asset to those who have them, a guarantee against interference.

Now we live in an increasingly globalized world. People travel, people meet other people, people fall in love. We had a good example of this in last week’s Masterchef, when we learned that Ping, the winner, had met her husband when he was on his gap year in Malaysia. When people fall in love and form a stable union with someone from another country, they usually wish to settle down and live together with that person. In the normal course of things, they will choose to live in the country of nationality of one or the other of them (Ping lives with her husband and baby daughter in Bath). Recently, in the case of couples with a non-EU partner, government has severely restricted their ability to live together in the UK. Extending earlier requirements, the British government now requires the British partner to have a verifiable income of £18,600 pa, with the sum rising considerably if there are children involved. The prospects of the foreign partner don’t come into it, and if the British partner is, say self-employed, there are more onerous requirements still: income must not fall below £1550 in any single month over the year. If it does, the clock starts ticking again.

As the BritCits campaigning group has demonstrated time and time again, this frequently leads to catastrophic and horrible consequences for couples and their families. Children are often separated from a parent; adults are often confronted with tragic choices between caring for elderly parents in one country and living with husband or wife in another. In some cases, couples will resolve the problem by choosing to live together in the overseas country, and often a highly skilled and educated British citizen is lost to this country forever (and perhaps forever embittered against the country of their birth). Notice that if the other country were to introduce similar rules to the UK, there might be no country where the couple could legally live together.

Ministers have defended these measures by saying that people should not be allowed to import a foreign spouse “at the taxpaxer’s expense” and that in setting the income threshold they were only acting on the advice of the independent Migration Advisory Committee. This latter point is disingenuous. The MAC answered the question that it was asked by the government, a deliberately narrow question, and made a point of observing that there might be other relevant considerations that it was not asked about. Ministers have justified £18,600 as being the level necessary so that the couple will not be taking more in benefits than they pay in taxes, and also as being the level necessary for playing a full part in society. Since incoming spouses are, initially at least, denied “recourse to public funds” the taxpayer rationale looks shaky on its own terms. That the government believes that a level of income higher than either the minimum wage or the “Living Wage” is necessary to function in society is problematic for other obvious reasons.

My objection, however, is more basic. If a right is a basic right of citizenship, the denial of which is catastrophic for a person’s prospects of living a decent human life, it should not be conditional on being a net contributor to the tax system (as if that were the only valid measure of contribution to society). Think of other rights: the right to vote, the right to a fair trial, the right to emergency medical treatment, the right not to be subject to racial discrimination in employment or housing, the right to be protected from serious crime by the police. None of these rights is conditional on being a net taxpayer and most people think that it would be monstrously unjust to make them so. That wasn’t always the case, of course. The right to vote used to be subject to a property qualification, but most people now agree that both rich and poor citizens have the right to participate in elections. If a citizen wishes to live with the person they love in their own country, however, that is now subject to a property qualification. Is this because this right is of lesser importance? It is hard to think so. One imagines that many people would gladly surrender the right to vote for a Westminster MP in return for the right to live with their spouse and see their children again. One might add that there is a peculiar cynicism in a political class that has failed people by arranging the economy so that it is marked by inequality and disadvantage then further penalising those denied opportunities by limiting their basic rights.

Why then, has the government chosen to restrict the rights and opportunities of it citizens in this way? One conjecture is that this is because of its obsession with the net migration target, with an abstract number. Much migration is hard to control because of things like treaty obligations, so the government, wanting to be seen to be doing something about a supposed “problem” and reckless of the basic rights of its citizens, squeezes where it can, and family migration is one place that it can restrict the flow.

Some people might think, in reply to what I’ve just said, that the answer, then, is obvious. If citizens’ basic rights are being restricted because the government cannot control other migration flows then we should change things so as to get those flows under control. Perhaps we should leave the EU or renegotiate its basic principles on freedom of movement? Now it is true that the right to live and work in another country is less basic than the right to live with your spouse and have children. But we have to recognize the fact that it is an important right nonetheless and proposals to restrict intra-EU migration are proposal to deny British citizens an important asset that they currently enjoy. My own father-in-law — made unemployed in the early years of the Thatcher government — ended up taking Mr Tebbit’s advice. He got on his metaphorical bike, left Liverpool, and ended up working in a factory in West Germany, thereby enabled to send money home to support his family. And of course, to this day, many British people resettle elsewhere in Europe either to work or to retire. Freedom of movement is an asset to these people, and governments should be wary about stripping their citizens of rights and opportunities they now have.

I now want to turn to my second question, concerning who immigration is an asset or a liability for. Here’s a truism: the country is made up of individuals, who have interests that they wish to pursue. Ultimately, claims that are made about growth in the economy or the power and influence of the United Kingdom have to be cashed out in terms of the interests of the individuals who compose it. Those individuals have a number of resources at their disposal to pursue those interests: some of these are financial, clearly, but they include basic rights and liberties. Which individuals, then, have the right to have their interests promoted by the UK government? One answer will say that it is the citizens of the United Kingdom. This answer is too quick, for a number of reasons. First, we have to note that many people elsewhere have a right not to be harmed by us, to have their human rights respected, and to have any obligations we have undertaken towards them observed. The UK also has a duty, alongside other governments, to pursue ends that that are the common objective of the state system, and these include upholding international law, acting to mitigate climate change, and protecting those whom the state system has failed, such as refugees. Second, there are those who are not yet citizens who have a claim on us, chiefly members of future generations. Third, we cannot restrict ourselves to current members of the electorate, because we have to ask ourselves who has a moral claim to inclusion, to membership, to political rights. The fact that women were excluded from the franchise before the First World War does not entail that governments then were at liberty just to ignore their interests. Rather, they had a duty to do correct their exclusion.

In practice, the harmful exclusion of those who have a moral right to inclusion and membership has two dimensions, one social the other legal, and both of these are endangered by current policy and by the character of the immigration debate. The social aspect is that policies that tacitly take as normative a notion of British identity that is based on native white stereotypes tend to exclude and devalue people who don’t fit that template. Policies that start from the perceived anxieties and “legitimate concerns” of Mrs Gillian Duffy, tacitly devalue the anxieties and concerns of British citizens from other ethnic and cultural backgrounds. This privileging of some identities in the the political debate too easily translates into discrimination and unequal treatment on the ground. Increasing regulation of the labour market to prevent the employment of irregular migrants and the new provisions imposing penalties to landlords who let accommodation to such migrants will predictably have an effect on people with a legal entitlement to be here. Employers and landlords will err on the side of caution, and many British citizens will rightly be offended at being asked to prove their status whilst their white counterparts are waved through. This is a real cost imposed on our fellow citizens by these measures. The only way to implement these policies in a non-discriminatory way would be to impose some national identity scheme on everyone, a proposal that has been defeated in the past because of its onerous nature, its cost and its implications for civil liberties.

The second way in which the current debate has been massively harmful to the interests of people who have a right to membership in our society is that it has prevented us from having a principled conversation about granting rights to citizenship. In fact, things have gone alarmingly in the opposite direction, with the Home Office making statements about citizenship being a “privilege not a right” and new powers being taken to deprive naturalized citizens of their citizenship at the discretion of the Home Secretary, thereby creating another class of people whose citizenship rights are lesser and different to those of others. This is in addition to making the requirements to acquire citizenship for long-term residents, people who have grown up in this country, may even have been born in it, more onerous than ever. Nobody knows how many people there are in the country with irregular status, but it may be around 600,000 of whom perhaps 120,000 will be children, half of who will have been born in the UK. Some of these people have a moral claim to membership of our society on the basis of long residence, social connection, family ties etc. The prevailing discourse from the Home Office and politicians is that “illegal immigrants” need to be removed, but in practice everyone knows that this is not going to happen and that the blanket condemnation of all such people as lawbreakers deliberately ignores a complex social reality.

We need to address the status of persons in this category for two reasons. First, because the imperative of survival for people with irregular status, exposes them to exploitation, crime and abuse in all kinds of familiar ways and denies them effective remedies. This cannot be in the public interest. Second, it is a basic principle of democratic legitimacy that those subject to the law should have a say in making it. Both of these reasons support giving such people a path to regularize their status and, ultimately to acquire citizenship. The trouble is that the current anti-immigration rhetoric is such that a sensible conversation around the status of irregular migrants cannot even be had.

The topic of this debate is “immigration: liability or asset?” My contention has been that this debate has been too narrowly framed in economic terms. Rights and liberties are assets too and the rights and liberties of ordinary people — the people who actually compose the country — are being abridged and endangered by the current politics of immigration. Worse, when we think of the liabilities of that debate, they fall disproportionately and unjustly on a few people particularly on the poorest and most vulnerable. They fall on people with the ill luck to fall in love with a foreigner and earning too little to beat the new restrictive rules. They fall on citizens who don’t fit the stereotype of what a British person is supposed to look like and may face discrimination in employment or housing. And they fall on people with a claim to inclusion in our society, including children born here, whose voices cannot be heard over the clamour to restore “control over our borders”. The rights of these people are a valuable asset to us all, and they need protecting.