by Chris Bertram on June 4, 2018
I was invited to participate in a panel at Oxford’s Refugee Studies Centre last week on the theme “Democratic legitimacy and the ethics of asylum” alongside David Miller and Mollie Gerver, with Matthew Gibney in the chair. My remarks went something like this:
Our title today is “democratic legitimacy and the ethics of asylum”. There are many things this could mean, but I think that the person who formulated this title probably had it in mind to draw our attention to a supposed conflict between two principles or ideals. The first is our duty as citizens and as the states that we constitute to live up to our responsibilities to refugees (perhaps as understood in relation to the 1951 Convention to which the UK is a party and in subsequent jurisprudence, including its 1967 extension). The second is a requirement that the governments of democratic states be responsive to what their citizens want and should not pursue policies, including in the general area of immigration, that go against those citizens’ wishes. It then looks as if there is a tension or even a contradiction, because the UK’s declared international commitments point to an openness towards those fleeing their countries out of fear of persecution, whereas the general public, often fed a diet of stories alleging that asylum seekers are really economic migrants in disguise, want a generally restricive immigration policy backed up by fairly robust enforcement measures.
But there is much that we can usefully challenge in that brief account of the issue, both in the areas of fact and of principle. Let me deal with some issues of fact first. At least in the case of the UK, the reality is that an extremely hostile and restrictive policy towards refugees corresponds with and is responsive to the putative attitudes of the general public. Despite the propensity of both ministers and the Home Office robotically to utter the stock formula, “The UK has a proud history of providing protection …”, the UK actually hardly takes in any refugees. According to Refugee Action, in mid-2015 there were, 117,234 refugees and 37,829 pending asylum seekers (0.24 per cent of the population). To get a sense of those numbers, if Bristol City’s Ashton Gate stadium (capacity 16,600) were full, that proportion is equivalent to a grand total of 40 spectators. As we know, the UK takes active measures to prevent people likely to claim asylum from arriving on its territory, using methods including visa restrictions and carrier sanctions. The few who slip through the net are made to live in substandard housing, forced to exist on £35 a week, are sometimes detained, are often subjected to harsh reporting regimes that require them to travel long distances, are routinely disbelieved by Home Office staff who often assess their claims incompetently and unfairly (as we know from the high rates of successful appeals), are excluded from the labour market and sometimes from other activities such as study. Failed asylum seekers who cannot return home are forced into destitution; those whose refugee status is recognized often become destitute because of the obstacles in the way of them getting bank accounts, housing etc. I could go on, but there is no need. So it turns out that there is no gap between democratic legitimacy, so narrowly conceived, and the UK goverment’s own miserable conception of its ethical duties to refugees, a conception that it claims to be in line with its international commitments.
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by Chris Bertram on June 3, 2018
by Chris Bertram on May 27, 2018
by Chris Bertram on May 25, 2018
I know you’ve all been waiting expectantly …. My book [*Do States Have the Right to Exclude Immigrants?*](https://www.wiley.com/en-gb/Do+States+Have+the+Right+to+Exclude+Immigrants%3F-p-9781509521951) is published in the UK today by Polity Press (those of you in North America will have to wait until Wiley publish it in July). The book challenges the assumption that lies behind most debates on immigration, namely that states have a discretion to do pretty much as they like and may set their policy according to the interests of their own citizens.
The book has three chapters. In the first, I look at migration today and in history, say something about patterns of migration, why people move and how recent many of the restrictions on movement that we take for granted are. In the second chapter I look at the question of state exclusion from an ideal perspective and ask whether the currently accepted norm of unilateral state discretion over immigration is defensible. You’ll be unsurprised to learn that I think it isn’t. Rather a global migration regime has to be justifiable (in some sense) to everyone subject to it. This doesn’t mean that states never get the right to exclude, but it means that the reasons they use have to be justifiable from an impartial perspective. I also reply to some arguments defending the right of states to exclude. In the final chapter I address the worry that this ideal theorizing is all very well, but we don’t live in an ideal world. I defend the idea that states can have some provisional rights to exclude in a world where other states are not acting justly but that to exercise them they must actively work towards the creation of a fair global migration order and must not undermine existing elements like the 1951 Refugee Convention. Where states fail to work towards justice they lose their authority over would-be migrants who have, in turn, no obligation to obey their immigration laws. That’s a very brief summary of 135 pages. It is a short book, and it argues for a particular perspective. It can’t and doesn’t cover all the bases in the space available, but I hope it is engaging and readable for those without a prior background in the subject matter.
by Chris Bertram on May 20, 2018
by Chris Bertram on May 13, 2018
by Chris Bertram on May 6, 2018
by Chris Bertram on May 1, 2018
In discussion of my recent post about the Windrush scandal, a couple of commenters used the phrase “illegal immigrants”. Tory ministers have since been on the airwaves using it a lot, and telling us that the public expects action on “illegal immigration”. Labour’s Diane Abbot has also been talking about the need to “bear down on illegal immigration” and the journalist Amelia Gentleman, who did so much to break the Windrush story, has protested that scandal of citizens denied their rights is nothing to do with “illegal immigration”.
But here’s why what they all say is wrong. There’s no such legal category as “illegal immigration”, rather there are people who have the legal right to be in the country and, perhaps, to do certain things like work or study. And then there are people who *may* lack the legal right to be present and to do those things. Some of the people with legal rights to be present have those rights because they are citizens; some other people have those rights for other reasons such as having a valid visa, being a refugee, or having some other human rights-based legal basis to stay.
Obviously, to “bear down” on people without the legal right to stay a government needs to (a) determine who they are and (b) take some action against them. Equally obviously, a government official may make a mistake about whether a person has the right to stay or they may use impermissible means against them. So you need a system by which people who have the right to stay but who the government wants gone can contest the bureaucratic decision against them as mistaken.
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by Chris Bertram on April 26, 2018
In the UK we are living through one of those moments when the public briefly realises that immigration control has significant human consequences and can be bad not just for the stock “illegal immigrants” of tabloid caricature, but for citizens too. The background is that Theresa May, now Prime Minister but then Home Secretary progressively [introduced what she called “a really hostile environment” for “illegal immigrants”](https://www.telegraph.co.uk/news/uknews/immigration/9291483/Theresa-May-interview-Were-going-to-give-illegal-migrants-a-really-hostile-reception.html), a regime continued by her successor, Amber Rudd. [This has involved turning ordinary citizens and civil society institutions into border guards so as to deprive people without the proper documentation of the means to live a tolerable existence.](http://latitudelaw.com/news/business-work/immigration-and-the-hostile-environment-how-nasty-can-it-get-for-non-migrants/) So those who cannot prove their right to be in the country, by producing, say, a passport, can lose their job, their home, their bank account and be denied medical services. Well, guess what? Thousands of people, particularly people born overseas as British citizens but legally resident in the UK for decades, lack the documentary proof required. So they have indeed lost jobs, homes and been [denied cancer treatment](https://www.theguardian.com/uk-news/2018/apr/24/windrush-scandal-albert-thompson-gets-cancer-treatment-date). Others have been subjected to detention in immigration removal centres, some may have been removed or deported from the country, and others have gone abroad and visited relatives only to be refused readmission.
This has not had an even impact on all sectors of the population. It turns out that having a black or a brown skin makes it far more likely that you will be left destitute and without healthcare or that a prospective landlord with be inclined to check your identity and leave you homeless. So much for all citizens being equal before the law. Indeed, so much for the “rule of law”, much promoted by the Conservatives as a “British value” under the Prevent Strategy. The rule of law requires not just that people obey the law (as Tories seem to think) but that it be possible for people to regulate their conduct on the basis of laws that are reasonably knowable and that they are able to assert their rights effectively in the face of state power. This is totally undermined by the fact that those people caught up in the hostile environment are often poor and vulnerable and lack the means effectively to challenge the bureaucrats who have wrecked their lives. The rules people are expected to follow are complex and ever changing and the evidence they are expected to provide is often refused as inadequate by civil servants who hold onto essential documents for years on end and often lose them. To further undermine the ability of citizens and migrants to defend themselves, the UK government removed legal aid for immigration cases. Unable to establish their status to the satisfaction of the Home Office, people have been left in limbo for years.
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by Chris Bertram on April 22, 2018
by Chris Bertram on April 15, 2018
Taken last week on a walk with Harry Brighouse. I had the thought at the time that we were not so far from regular photo-commenter Alan White.
by Chris Bertram on April 1, 2018
by Chris Bertram on March 31, 2018
During the past term, I was on strike for fourteen days and I’m now on “action short of a strike” and, like my colleagues up and down the UK, I’m waiting to vote in a consultative e-ballot next week that may determine whether we reach a settlement with the employers and go back to work. But this post isn’t about the rights and wrongs of the dispute, it is about what it has felt like to be on strike — the highs and the lows — and about how the shared desire for a better university that has emerged from our unity and solidarity may be helped or hindered by how the strike is resolved and by the stories we tell ourselves about it.
A big part of striking (at least for those who choose not to sit at home) is picketing. I’ve been on picket lines (a long time ago) where the purpose of picketing was to stop people from going to work, but our picket lines now have been more symbolic and demonstrative. They’ve been about standing together, feeling a sense of comradeship, and sharing jokes and conversation. In this we’ve been joined by many of our students, giving rise to a renewed feeling of the university as an intellectual community bringing together teaching and research staff, other university staff and students and joining us together across disciplinary boundaries. This experience, together with associated demonstrations, teach-ins lunches, coffees and social events, has been the source of a growing sense of collective determination that a different kind of university is possible and that we mustn’t go back to the normality of submission to bullying micromanagement, the obsessive chasing of metrics and rankings and individualized anxiety and self-loathing.
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by Chris Bertram on March 26, 2018
I spoke yesterday at the Oxford Literary Festival in debate with Sunday Times journalist Sarah Baxter on the theme “Is there too much immigration?” Something like the following constituted my opening remarks.
The title of this panel asks whether there is too much immigration? I’m inclined to wonder whether this question is simply a mistake. My own focus in a forthcoming book [Do States Have the Right to Exclude Immigrants?](http://politybooks.com/bookdetail/?isbn=9781509521951) is not so much on whether immigration is good or bad for the country, but on whether states have the rights that politicians, pundits and journalists simply assume that they do, to regulate migration according to whether it is good or bad for the economy, strains public services, makes some people better off or worse off, and so on.
My book is a work in political philosophy rather than an intervention in current debates (though it can’t help being that to some extent). Let me just sketch the main argument and then I’ll get on to some further remarks about our current predicament. States are compulsory and coercive bodies. Legitimate states use that coercive force to limit the freedom of people subject to them. But there’s normally a quid pro quo involved: the state limits our freedom but also protects us from the threat that we, as individuals, pose to one another’s freedom. This tradeoff provides us with reasons to comply with the state’s authority. But unlike resident citizens would-be immigrants get all of the coercion with none of the protection. The world is divided into many states, some of which do a much better job for their subjects than others. And mobility is something that human beings have practised since forever. To make the regulation of migration legitimate, states ought to comply with principles that ought to be acceptable to everyone. Insofar as such principles don’t exist, legitimate states need to be working towards creating them (just as they regulate other areas of international life).
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by Chris Bertram on March 18, 2018
We’ve just had our second late-in-the-year dose of snow in the UK, although this photo is from 2013.
