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 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 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 August 30, 2017
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.