The Ethics of Immigration symposium: Right arguments, wrong order

by Kieran Oberman on May 29, 2014

Why the case for open borders is crucial to defending the rights of resident migrants

Joseph Carens’s important, engaging and superbly written book aims to offer “a general account of how democrats should think about immigration” (p10) based on “fundamental democratic principles” that Carens believes most people in Europe and North America already hold (p5). This methodological stance dictates the structure of the book. What is most controversial is pushed to the back. Chapters 11 and 12 make the argument Carens is most famous for: the case for open borders. Chapters 1-10 set that all aside to address a range of everyday migration controversies, from naturalisation to religious dress codes, under the assumption that states have a broad right to control immigration as they wish. The boast of the book is that it can adopt this underlying assumption and still defend a set of progressive policy proposals requiring states to extend a variety of rights to migrants. The case for open borders is meant to be Carens’s encore – a treat performance once the main show is over – not a premise upon which the whole thing hinges. Does Carens pull it off? In my view, no. Most of the arguments that Carens makes for migrants’ rights in Chapters 1-10 fail unless the right of states to control immigration is called into question. Conversely, if one accepts not only the common assumption that states have a right to control immigration but also the common beliefs that lie behind that assumption, then one has reason to resist the extension of rights to migrants.

The common beliefs that I am referring to here include (1) that the ability to control immigration is an essential aspect of national self-determination; (2) that states are justified in prioritising the interests of their citizens over foreigners; and (3) that immigration can threaten some of the most important interests of citizens in terms of employment, culture, welfare, social trust, security and so forth. As Carens correctly argues in chapters 11-12, these beliefs, when properly assessed, do not provide a plausible justification for immigration restrictions. I have very little to say against Carens’s arguments in chapters 11-12. I am, in fact, in warm agreement with them and have sought to support and extend them in my own work. The problem with Carens’s book is not that Carens makes the wrong arguments but that he makes the right arguments in the wrong order.

Irregular migrants

Let me present this line of critique by considering first Carens’s treatment of irregular migrants in chapter 7. There, Carens argues that irregular migrants who have lived in a state for many years are entitled to have their status regularised. Long-settled irregular migrants are members of society and as such are owed amnesties. Moreover, even recent migrants are entitled to access a variety of basic goods – education, health care, criminal justice etc. – without fear of deportation. To achieve this, a “firewall” must be created to block information passing from institutions that provide these goods to immigration enforcement agencies. States violate the human rights of irregular migrants, Carens argues, if immigration enforcement agencies are able to deport irregular migrants whenever they seek to exercise their human rights.

In arguing for rights for irregular migrants, Carens is keen to remind his readers that he is still assuming that states have a broad right to control immigration. States are perfectly entitled to deport irregular migrants within their first years; it is just that they cannot deport long-settled irregular migrants or use information from hospitals, schools, courts etc. to track down recent arrivals. Carens’s opponents should be able to accept amnesties and firewalls since the arguments for them rest on “fundamental democratic principles” – respect for membership and human rights –that everyone already accepts.

This is the trick Carens seeks to play. By adopting the assumption that states have a broad right to control immigration, Carens lends the impression that he has generously adopted the starting point of his opponents. Since he adopts their starting point and argues from shared democratic principles, it seems hard to see why they should find his conclusions objectionable. In fact, however, Carens does not adopt the starting point of his opponents, for as already indicated, their starting point is not merely the assumption that states have a broad right to control immigration but a set of beliefs that lie behind that assumption.

Those that oppose greater rights for irregular migrants do not merely accept that states have the right to control immigration; they are passionate about it. They are passionate about it precisely because they believe in the importance of self-determination and the protection of citizens’ interests and contend that uncontrolled immigration is corrosive to both. Irregular migration is, by definition, uncontrolled migration. In so far as migrants enter without authorisation, states are failing to determine their own immigration policy and failing to protect their citizens from any harm that immigration imposes.

Had Carens really adopted the starting point of his opponents then, he would have, like them, sought to ensure that states have the means to actually control immigration. This would have made him reluctant to support amnesties, which incentivise irregular migration, and firewalls, which hamper immigration enforcement. Carens might still have been able to argue that the denial of amnesties and firewalls imposes morally troubling costs upon migrants (or perhaps not – see below), but he would have been forced to at least consider the possibility that immigration enforcement is something of such importance that it is worth the costs it entails. As it is, Carens is able to avoid even acknowledging that there is a trade off to make, not because he has shown that the right to control migration is any less important than his opponents claim, but rather because he has chosen to ignore their arguments for this right: until, that is, the crucial chapters 11-12.

Firewalls and human rights

Indeed, it is worth asking whether the denial of amnesties and firewalls really carries the moral costs that Carens claims it does. Much has already been written on Carens’s support for amnesties; so let me focus here on his argument for firewalls. That argument, in my view, cannot succeed as long as we assume, as Carens does, that states have a broad right to control immigration. To see this, consider the following example: suppose that Anna, a recently arrived irregular migrant living in country X, has cancer and is in need of treatment. Country X has no firewall separating the health system from immigration enforcement. If Anna goes to hospital, she may receive some immediate medical attention but she will soon after be deported. Carens would argue that country X is violating Anna’s human right to healthcare. But is it?

Let us imagine that Anna’s home country Y can offer Anna the same treatment that she seeks from country X. In that case, Anna could access the treatment she needs upon her return to country Y. If she chooses not to access health care for fear of deportation and her health suffers as a result, it is far from clear that she can blame country X for her predicament. She never had any right to be in country X, we are here assuming. If she chooses to stay in the country without accessing healthcare for fear of deportation, she must take responsibility for her actions, much as you and I would if we refused to go to the hospital when we know we are sick.

Now suppose, conversely, that country Y lacks the treatment that Anna is seeking. If that is the case, Anna must receive treatment in country X or she will die. Even in this case, however, it seems false to say that country X violates Anna’s right to healthcare by promising to deport her if she seeks medical attention (assuming again that Anna never had a right to be in country X). For there will be many more cancer sufferers living back in country Y who, like Anna, are in need of treatment. Carens would not say that country X violates the human rights of these other cancer sufferers if it prevents them from entering country X. But there seems to be no morally relevant difference between Anna and these other cancer sufferers. It is true that Anna is currently within country X, while these other cancer sufferers are outside. But this mere difference in location cannot do the moral work. Neither Anna nor these other cancer sufferers is a long-settled resident of country X. Neither has any right to be in country X. If country X does not violate the human right to healthcare of these other cancer sufferers, then it does not violate Anna’s human right to healthcare when it promises to deport her if she seeks medical attention.

None of this is to deny that Carens can make a powerful case for rights for irregular migrants. But to make that powerful case he needs to show that the beliefs that underlie the assumption that states have a broad right to control immigration are misguided. He also needs to show that irregular migrants like Anna, as well as her compatriots back in Country Y, have legitimate reasons to live overseas and engage in important activities there, such as seeking medical care. Carens does all of these things in chapters 11-12. Again, the problem is not with his arguments but the order in which he makes them. The horse (chapters 11-12) should be in front of the cart (chapters 1-10), not behind it.

Voluntary migrants

I have so far focused on Carens’s treatment of irregular migrants but much the same point can be made regarding Carens treatment of the rights of regular migrants in chapters 2-6. There, Carens argues that all migrants are entitled to some rights and the longer a migrants stay the greater their entitlement. “At some point, a threshold is passed” and migrants must be awarded full citizenship (p50). As I point out in my article, “What is Wrong with Permanent Alienage?”, Carens overlooks a principle that could justify lesser rights for at least some migrants: the principle of consent. Some migrants migrate voluntarily and their decision to migrate could be taken to signal consent to the terms of their admission. Voluntary migrants, being voluntary, need not be awarded the generous package of rights that Carens claims they are entitled to.

Carens does not seem to address this argument in the book, but he has addressed it elsewhere. In his article, “Citizenship and Civil Society: What Rights for Residents?”, Carens notes that “every plausible moral view sets some limits to consent” (p115). This is certainly true. Some basic rights are inalienable and migrants cannot be said to waive them by crossing international borders. The problem with this reply is that not all rights are inalienable. Most of the rights Carens sets out to defend, up to and including the right to citizenship, are non-basic rights that migrants could consent to waive and still lead fulfilling lives in relative safety and security.

To defend the rights of voluntary migrants requires reference to the sorts of arguments Carens makes in chapters 11-12. If people have a right to cross international borders, it would seem unreasonable to take their choice to cross international borders as a sign of consent to the terms of their admission. To any state that tells a voluntary migrant, “You consented to our terms of admission when you came here”, the migrant can reply, “When I came, here I was not consenting to your terms of admission, I was simply exercising my rights”.

The mistake that Carens makes is to regard the debate over immigration restrictions as separable from the debate over the rights that migrants should enjoy once they are resident within a country. In fact the two are closely linked. Arguments for the justifiability of immigration restrictions work as arguments against extending rights to irregular migrants. The claim that immigration restrictions are justified supports a consent argument for the permissibility of denying rights to voluntary migrants. To defend the rights of irregular and voluntary migrants then, Carens must confront arguments for the permissibility of immigration restrictions at the outset. As it is, Carens’s book is like an upside-down house, with the foundations of the house placed at the top. The bad news is that, if uncorrected, the house will collapse. The good news is that all the materials are there to build something strong and enduring. All we need do is turn the house aright.

Kieran Oberman is Chancellor’s Fellow in Politics at Edinburgh University. His work has appeared in a range of journals including Ethics, Political Studies and Res Publica.