Migration and borders

It’s obvious enough by now that support for Trumpism in the US and elsewhere is motivated primarily by racial and cultural animus, and not (or at least not in any direct way) by economic concerns. Still, to the extent that Trumpism has any economic policy content it’s the idea that a package of immigration restrictions and corporate tax cuts[1] will make workers better off by reducing competition from migrants and increasing labor demand from corporations. The second part of this claim has been pretty thoroughly demolished, so I want to look mainly at the first. However, as we will see, the corporate tax cuts remain central to the argument.

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For as long as I can remember, the philosopher’s stock example of a proposition that is morally uncontroversial has been “torturing babies is wrong”. Yet it turns out that torturing babies, or at least toddlers, is US government policy, where that policy involves separating them from their parents, leaving them in acute distress and certainly consigning many of them to a lifetime of mental health problems. And all so that Donald Trump can play at symbolic politics with his base. The justification given to the policy by people like Attorney General Jeff Sessions seems to be that the government is simply enforcing the law.

This discourse, that the law has to be enforced and that unauthorized immigrants are lawbreakers who must be punished, is pretty questionable in itself. But in this case it flies in the face of the US government’s commitments under the Refugee Convention, incorporated into US domestic law, according to which refugees are not liable to criminal sanction for unlawful entry. There’s also the Convention on the Rights of the Child, which the US has signed up to but not ratified. So, even if you think that laws must be followed and enforced, the question of who the lawbreakers are here is one that does not admit of a clear answer. Not that one should have confidence that the Supreme Court of the United States would interpret the United States’ legal obligation under the Convention in a way that that does not reflect partisan political judgement. Government of laws not of men? Not really.

As a European it is tempting simply to point the finger at Trump, but our own well is just as poisoned. Hungary now intends to criminalize those who give assistance to migrants and refugees, including merely informing them of their legal rights. Salvini, the new Italian interior minister, having refused to allow migrants to dock at Italian ports, now contemplates a purge of people of Roma ethnicity from Italian territory and regrets that he cannot deport the ones who have Italian nationality. And then there are Europe’s 34,361 dead migrants. Terrible times, and all the more terrible because electorates, or at best substantial minorities of them, are willing this stuff. We who disagree have to say: not in our name. And we have to do what we can to push back.

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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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.

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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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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Paul Sagar has [a very nice piece at Aeon about Adam Smith](https://aeon.co/essays/we-should-look-closely-at-what-adam-smith-actually-believed), his legacy, and his contemporary relevance. Towards the end of his essay, he quotes a famous passage from Smith’s Theory of the Moral Sentiments:

> [The man of system] seems to imagine that he can arrange the different members of a great society with as much ease as the hand arranges the different pieces upon a chessboard. He does not consider that the pieces upon the chessboard have no other principle of motion besides that which the hand impresses upon them; but that, in the great chessboard of human society, every single piece has a principle of motion of its own, altogether different from that which the legislature might choose to impress upon it. If those two principles coincide and act in the same direction, the game of human society will go on easily and harmoniously, and is very likely to be happy and successful. If they are opposite or different, the game will go on miserably, and the society must be at all times in the highest degree of disorder.

An arresting passage when considered against the background of the nativist immigration policies of countries like the United Kingdom and the United States and one that underlines the utopian (in a bad way) nature of natonalist projects. At present our governments are conducting a war against migrants. In the UK, “foreign criminals” (who may or may not have been convicted of actual crimes) are deported to countries they may be utterly unfamiliar with, landlords and employers are threatened with fines if they house or employ people without the right of residency (and deprive many others of opportunities because they look or sound as if they might be “foreign”), asylum seekers are deported to war zones like Afghanistan (a “safe country”) and thousands of people are separated from partners or children because they don’t earn enough for a spousal visa. Brexit Britain has now cast this shroud of insecurity over EU nationals too. In the United States, Trump is still going on about his wall, thousands of young people who are functionally Americans can’t rest secure because politicians can’t agree how to regularize their status, whilst others who came as children are ripped from their families and deported.

And yet we will win. The “game” is going on “miserably” and human beings who have principles of motion of their own, altogether different from those that polticians seek to impress on them, will carry on moving, fleeing, working, associating, trading with, and loving those of nationalities other than their own, because human beings always have and always will. When we talk of freer movement, of more open borders, of a global order that works for everyone and isn’t just in hock to nativist anxieties in wealthy countries, the conventional wisdom is that this is unrealistic and utopian. Yet the true unrealism and utopianism is the project of keeping human beings in self-contained political orders with others “like them”.

My book, [Does the State Have the Right to Exclude Immigrants](http://politybooks.com/bookdetail/?isbn=9781509521951), comes out with Polity on May 25th.

I have [a review](https://newhumanist.org.uk/articles/5224/reforming-refuge) of Andrew Betts and Paul Collier, Refuge: Transforming a Broken Refugee System (Allen Lane) in The New Humanist. It is a curious book, with some interesting and serious parts, but the whole is marred by an arrogant rhetoric and it risks serving as an alibi for some very bad policies indeed.

Jacob T. Levy [has written a really interesting piece](https://niskanencenter.org/blog/sovereign-myth/) for the Niskanen Center, which has at its centre the myth that the postwar era was one of sovereign and national democratic control and the fantasy that’s what we need to restore, a fantasy that fuels both the current wave of right-wing populism but is also present in *some* of the thinking around Jeremy Corbyn.

> The imagined Golden Age in these kinds of stories of the fall from democratic grace is the postwar era; it’s often referred to as les trente glorieuses, the thirty glorious years of high economic growth, broadly distributed, during which most Western market democracies built substantial welfare and regulative states after World War II. The chronology varies from one country to another, but roughly speaking the Golden Age is taken to have ended sometime around 1970-75, opening political space for a very different political-economic model to take hold — with the election of Thatcher and Reagan, and the reconciliation of Mitterrand’s Socialist government in France to the market. … The people [now] want to take back control of their economies and their societies. Thus, to critics of neoliberalism, the populist upsurge is a kind of dark morality play; we’re being punished for Margaret Thatcher’s sins.

In the lens of Levy’s piece, UKIP and Trump, Theresa May, David Goodhart and “Liberal” Brexiteers like Carswell and Hannan are on the same side of a key dividing line *together* with some left-Rawlsians in political philosophy, and other “relational egalitarians”, with people like David Miller, with Blue Labour, with the Furedites with their enthusiasm for national sovereignty, with Lexiters and national-sovereigntist socialism-in-one-country types like John McDonnell and Jean-Luc Mélenchon. On the other side of that line are cosmopolitans of various stripes and with seriously differing attitudes among themselves to “capitalism”, to property and markets. Sitting uncomfortably in the middle are some of the Labour “mainstream”, the US Democrats, and people like Macron, who want to hang onto the postwar international order but are nevertheless wedded to the nation state and the possibility of control in ways that foster the myth.

Whilst nation states may be unable to produce the level of control for democratic electorates that they falsely promise, they are rather good at classifying, organizing, excluding and generally bullying people, with miserable effects for the people and their families who don’t fit into the neat little containers of nationality and citizenship or who would challenge them. The people in the sovereigntist and middle groups have very different ideas about what they’d do with state power, of course, — some of them benign in aspiration — but they all want to bend state power to the production of their pet outcomes on behalf of democratic electorates within which the interests of the “national”, the ethnically dominant and the sedentary are over-represented compared to all the people who don’t fit. In my view, the renewed fostering of the “we” who want control and to take charge of “our” borders and “our” economy carries serious dangers for those others.

The Guardian has [a piece today on the asylum-system in the UK](https://www.theguardian.com/world/2017/apr/09/its-a-shambles-data-shows-most-asylum-seekers-put-in-poorest-parts-of-britain), attacking the policy whereby asylum-seekers are dispersed to areas of the country with a lot of empty and cheap housing on the grounds that this is burdensome to poor areas and that Labour-controlled local authorities have to host more people than Tory ones do. The entire drift of the piece is to see asylum-seekers as a cost unfairly imposed on poor communities, and an [accompanying article about Rochdale](https://www.theguardian.com/world/2017/apr/09/rochdale-town-conflicted-large-asylum-seeker-population), represented by Simon Danczuc MP (the sort of Labour MP who goes drinking with Nigel Farage), has the predictable white working-class local complaining:

>“[Immigrants] get everything given to them, everything for free; I don’t get anything. It just seems to me that the working class, working people, are being hit the hardest by immigration.”

Well, there’s an obvious point to be made, both to him and to the authors of the main article. Asylum-seekers are provided with accommodation that nobody else wants and made to live on £5/day. If they got more then our bitter member of the “white working-class” would complain more about the unfairness, but if you are going to have to live on that kind of money they you had better not be made to live in Kensington and Chelsea. I’d support increasing the allowance (a lot) for asylum seekers, maybe making it variable depending on area of the country, providing more resources to local authorities to help with schooling and permitting asylum-seekers to work (banned by Labour). Apart from giving more money to local authorities, none of these sensible changes is backed by Labour, no doubt worried about being seen to give people “something for nothing”, yet they are essential if you are going to have anything like a different system of geographical dispersal. There is the further issue, of course, that many of the asylum-seekers are in fact refugees who the government hasn’t got round to recognizing as such yet, and keeping refugees in limbo for years is a stain on the UK’s human rights record.

I have [a blog piece with Helena Wray and Devyani Prabhat](http://legalresearch.blogs.bris.ac.uk/2017/03/the-uks-spousal-and-family-visa-regime-some-reflections-after-the-supreme-court-judgment-in-the-mm-case/) at the University of Bristol Law School Blog. The final para:

> Family and spousal migration is only one part of migration policy, and there is the broader issue of what values migration policy should serve generally. In recent political argument in the UK, three sets of voices have been prominent, virtually to the exclusion of all others. First, the proverbial “taxpayer”, the net contributor to government spending. Second, the needs of “business” for skilled and not-so-skilled workers. Third, the “legitimate concerns” of so-called “ordinary people”, constructed as the “white working-class” worried about cultural and demographic change. Largely absent from the discussion have been the autonomy interests that all citizens have in being able to have a valuable set of life-choices available to them, about being able to live, work and settle where they wish, and in being able to make their life with a partner of their choice and maybe start a family. Rather, those interests – that ought to be of central political concern for a liberal society – have been crowded out of the migration debate. This has meant that many of our fellow citizens and their partners have been thwarted in their pursuit of central life goals or forced to pursue those aims through compliance with arcane rules and at the mercy of an unfathomable bureaucracy. If we aspire to the values of a liberal society – as is the official consensus position of all major political parties – our policies ought to reflect them.

Kwame Anthony Appiah, of whom I have only had positive feelings up to now, [has produced an opinion for the Ethicist column for the New York Times](https://www.nytimes.com/2017/01/25/magazine/should-you-report-a-green-card-marriage.html) that it is “a good thing” when citizens report violations of immigration law to the US authorities. He produces this opinion in the context of a question about “green-card marriage” entered into merely in order to gain an immigration advantage, so it is unclear how far he relies on the specific features of the case he describes to generate a more general moral conclusion, but I, for one, find his reasons highly problematic.

First, he operates on the assumption that US migration policy is reasonable and reasonably fair and that states have the right to set their immigration controls unilaterally. Whether or not legitimate states have the right to set their immigration controls unilaterally (I’m a sceptic), I think it hard to argue that US policies are currently fair given who they exclude (and *a fortiori* who they are now excluding). Appiah argues that people who enter by unlawful means are queue jumpers who thereby act unfairly towards others. But the very idea that there is an immigration queue that people can join and wait their turn is preposterous. There is no such queue and many many people will never be in a position where they can realistically have a chance of a visa. The claim of unfairness to other would-be migrants is therefore unfounded.
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Donald Trump’s order that the US be closed to the nationals of several Muslim-majority countries is a particularly egregious intensification of the racist immigration policies that many “liberal democracies” have pursued in recent years. It isn’t clear at the moment how this story will develop, with various US courts taking action against the order but with Homeland Security apparently indicating that they will continue to enforce it. As everybody now knows, it is being enforced even against US permanent residents who were on trips abroad, against people transiting US airports on their way back to other countries, against students in the middle of their courses. It is separating loved ones, including parents from children (a very prominent case being the British-Somali athlete Mo Farah). It also seems to be the case that the US is failing to allow people to claim asylum and have their cases properly assessed, as the 1951 Refugee Convention requires as well as US law, and that the US has engaged in some breaches of the non-refoulement obligation towards those seeking asylum.

Naturally, there are calls for European politicians to protest. Theresa May, just back from Washington and then from selling fighter-planes to Turkey’s Erdogan seemed reluctant to do so at first, but someone from 10 Downing Street has now issued a weakish condemnation. Well, ok, but what’s new here? Both European states and the US have long given people a harder time based on their country of origin and poor people from a long list of states have no chance of entering the territory by non-clandestine means. We all know of the appalling death toll in the Sahara, the Mediterranean, up through Mexico and in the Arizona desert. Wealthy states, such as Australia and the US under Clinton, have already breached the non-refoulement provisions of the Convention on many occasions, and now often pay poorer states on their periphery to send people back on their behalf (or just keep them locked in). Migrants present on the territory without authorization face “hostile environment” policies aimed at depriving them of work or accommodation, which also expose them to crime and exploitation, policies put in place by politicians who also make speeches about “human trafficking” and “modern slavery”. And Theresa May herself is no stranger to policies that abruptly refuse students entry at the border or that separate partners or parents from children. In the UK, aliens, even those present from birth, can be deported to homelands they have never seen, without due process, if law enforcement deem them “foreign criminals”. And then we have France, among others, criminalizing people who offer assistance to irregular migrants and refugees, and countries like Hungary constructing physical barriers to keep them out. So nothing much new.

Or maybe something, which matters somewhat: Trump and his henchmen feel able to do openly and proudly what those other politicians have usually done hypocritically and shamefacedly. Not for him speeches such as the ones Theresa May (and Cameron before her) make about a “proud record” of helping those fleeing persecution, speeches made whilst they condemn the persecuted to risking death and then incarcerate them in detention centres. To be honest, I prefer the hypocrisy, because at least then there is some chance of holding them to account for the betrayal of the values they publicly profess. That Trump doesn’t care is terrifying.

(Protest and campaign, of course. But one thing you can also do is to volunteer to support refugees or to donate to a refugee charity. [Bristol Refugee Rights](https://localgiving.org/charity/brr/) is one such in the town where I live, but there are many others in Europe and North America.)

The world is watching the denouement in Aleppo, with stories emerging of massacres, particularly of young men (and probably by young men). A [story I read from Patrick Cockburn in the Independent](http://www.independent.co.uk/voices/aleppo-fall-latest-syria-civil-war-bombardment-bashar-al-assad-rebels-advance-a7470716.html) reported that such is the shortage of manpower for the Syrian army that other young men, emerging from eastern Aleppo, are being immediately conscripted into the Syrian army. A Syrian refugee I heard speaking the other day said there was no choice but to leave because you would either be killed, or you would be forcibly enlisted and forced to kill others. And many of the young Eritreans who find their way to Europe are also fleeing conscription (they face indefinite military service). This is hardly a new thing. The last major exodus of Americans fleeing the jurisdiction of their state was of young men who were evading the Vietnam draft.

James C. Scott, in his wonderful [*The Art of Not Being Governed*](http://yalebooks.com/book/9780300169171/art-not-being-governed) writes of state conscription as one of the main reasons why the subjects of states flee to the hills, to a zone outside of state control. There are few such zones today, and those that there are may be governed by forces even less appealing that the states that conscripts are fleeing from.

This all got me thinking about some of the media narrative on refugees over the past few years. The preponderance of young men has been treated by those who want to keep refugees out as a reason for suspicion. The “genuine” refugees for the newspaper columnists are mothers and children. It is the toddler drowned on the beach, like Aylan Kurdi, who elicits public sympathy. But young men are often the ones with most reason to flee. It is they who face the starkest choice between killing and being killed. No wonder they predominate.