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Who Should Get in? The Ethics of Immigration Admissions
Joseph H. Carens*
ow should the immigration policies of liberal democratic states be constrained, even when one assumes a broad sovereign right to control immigration? One might want to challenge the claim that states are generally entitled to control immigration, and I have done this elsewhere.1 Nevertheless, since this entitlement is generally recognized in the practice of the international system and reflects moral views that are widely held by people in Western states, it is important to explore what can be said about the ethics of admissions without challenging it. The conventional view is that acceptance of the state’s broad general right to control immigration means that morality has little role to play with regard to admissions. As Michael Walzer, the most well-known defender of the conventional view, puts it,“The distribution of membership is not pervasively subject to the constraints of justice. Across a considerable range of the decisions that are made, states are simply free to take in strangers (or not).”2 In practice, however, liberal democratic states do not treat their admissions decisions as morally unfettered. Many options that might seem attractive from a self-interested or even a majoritarian perspective are ruled out of bounds on moral grounds. Even a minimalist account of the moral limits widely accepted by liberal democratic states imposes much greater restrictions on the states’ discretion with regard to immigration than the conventional view allows.
My goal here is to identify the norms and principles embedded in the immigration practices of liberal democratic states and reflect critically upon them. This is an immanent critique of immigration, rather than a foundationalist one. The idea is not to try to deduce principles for immigration from some general theory of justice, but instead plunge in medias res, exploring the connections of moral constraints on admissions to other familiar and widely accepted moral views. It is deliberately minimalist, in the sense of trying to appeal to moral views that are widely shared, not just in the United States but throughout North America and across Europe. This does not mean that one cannot criticize particular practices or policies. But I will not attempt here to develop a more radical challenge to prevailing norms. I want only to show that, whatever moral limits ought to be placed on immigration policy, they ought at least to include the ones identified here, and that these are much
My thanks to Christian Barry and two anonymous reviewers for comments that greatly improved this article. An earlier version of the article appeared in Spanish as “Inmigración y justicia: ¿A quién dejamos pasar?” in Isegoria 26 (June 2002), pp. 5–27. 1 See Joseph Carens, “Aliens and Citizens: The Case for Open Borders,” Review of Politics 49 (Spring 1987), pp. 251–73; and Joseph Carens, “Migration and Morality: A Liberal Egalitarian Perspective,” in Brian Barry and Robert Goodin, eds., Free Movement (London: Harvester Wheatsheaf, 1992), pp. 25–47. 2 Michael Walzer, Spheres of Justice (New York: Basic Books, 1984), p. 61.
One might object that control over immigration is so central to sovereignty that states must be permitted absolute discretion. Carens . they continued to admit spouses and minor chil96 dren of those who were already there. as they were being encouraged to do. so long as they are legally present for an extended period. So liberal democratic states act as though they have a moral obligation to permit family reunification. Indeed this right to bring in family members was and is often recognized even when the people bringing their families in do not have permanent resident status. Why? After all. even external criticism. Toward a Theory of Immigration (New York: Palgrave Macmillan. Even states that do not see themselves as countries of immigration admit people for purposes of joining immediate members of their family. one might insist that political communities must be able to decide who will be admitted and who will not because the determination of political membership is at the core of democratic self-determination. See Meilaender. sometimes acknowledged by government ofﬁcials and sometimes pressed by court rulings about the implications of deep constitutional commitments. For example. or visiting workers. Meilaender cites evidence in support of the view that there is actually an emerging norm in international law that requires this. 4 It may no longer be purely self-imposed. Meilaender. It is particularly striking that states permit family reuniﬁcation not only for citizens but also for noncitizen residents. And for the most part these new admissions were not perceived as economically advantageous and were not politically popular. not outsiders.more extensive than the conventional view would acknowledge. To challenge a state’s policies is to call the whole system of state sovereignty into question. These objections confuse process and substance. How should this self-imposed requirement to permit family reunification be morally evaluated?4 It must be kept in mind that family reunification is primarily about the moral claims of insiders. for example as students. even when they do not think it is in their interest to do so. It may be true that no international body ought to try to interfere with a state’s immigration policies. Canada. see Walzer. Toward a Theory of Immigration. 2001). pp. it is one that has emerged from practice and so it does not really change the question in the text. States did this nevertheless because they felt a moral obligation.3 OBLIGATORY ADMISSIONS It is common to hear people say that states are morally free to exclude whomever they choose. the families could have been reunited if the guest workers had gone home. Consider the former ﬁrst. The state’s obligation to admit outside family members For attempts to shield states from external criticism of their immigration policies. especially when the critics appeal to broad moral principles that the states themselves endorse. In a related vein. 3 Joseph H. acceptance of an immigrant normally entails acceptance of his or her immediate family for admission as well. visiting professionals. while many states in Europe ceased recruiting guest workers in the early 1970s and attempted to restrict other avenues of immigration. but it does not follow that those policies cannot be subject to criticism. Spheres of Justice. and Peter C. In states like Australia. 280–81. There is a distinction between the question of who ought to have the power to make a decision and the question of whether the decision is right. In fact. and the United States that do see themselves as countries of immigration. But even if this is a norm. all liberal democratic states recognize moral obligations to admit noncitizens in two categories: the immediate family of current citizens and residents and refugees claiming asylum.
That is something we should do only in rare circumstances. The qualiﬁer “normally” is necessary because even basic rights are rarely absolute. So far the term “family” has been treated as though it were unproblematic. To deprive someone of these relationships is to deprive him of his richest and most signiﬁcant bonds with other human beings. residents. States do not have an obligation to admit people whom they regard as a threat to national security. or others who have been admitted for an extended period. Peter Meilaender. If the comparison were simply between the relative moral urgency of claims put forward by outsiders seeking to join family members already inside and outsiders seeking to enter for other reasons. In a world of vast inequalities. who is generally a defender of the state’s discretionary control over immigration. even if they are family members. Toward a Theory of Immigration. than we share with any other people. and the right to family reuniﬁcation cannot be conceived as absolute. it is not a question here of a cosmopolitan challenge to the state’s control over admissions but rather of the responsibilities of liberal democratic states toward those whom they govern. But I have already assumed that the state has a basic right to control entry. p. But the right of people to live with their family clearly sets a moral limit to the state’s right simply to set its admissions policy as it chooses. but the question of who should count as an immediate family member varies in practice and 5 Meilaender. such as needy people seeking a chance at a better life. Even if it is assumed that liberal democratic states have very limited obligations toward outsiders. But no one should be forced by the state to choose between home and family. Whatever the state’s general interest in controlling immigration. many people would like access to rich liberal democratic states. If two people from different countries fall in love. people must be free to leave.5 Why must this interest in family life be met by admitting the family members? Could it not be satisﬁed just as well by the departure of the family members to join those abroad. but relatively few obtain it. People clearly have a deep and vital interest in being able to live with their immediate family members. So. who should get in? the ethics of immigration admissions 97 . it is not obvious that the claims for family reunification would always be stronger. not merely the usual calculation of state interests. Of course. assuming that the state where the other family members reside would permit this? Why is the state obliged to shape its admissions policies to suit the locational preferences of individuals? In addition to their interest in family life. a mixture of love and dependence. people sometimes have good reasons of their own to leave and sometimes face circumstances that require them to make painful choices.is derived not so much from the claims of those seeking to enter as the claims of those they seek to join: citizens. for example. they do have an obligation to take the vital interests of their own members into account. for instance. 182. that interest cannot plausibly be construed to require a complete ban on the admission of noncitizens and cannot normally be sufﬁcient to justify restrictions on family reuniﬁcation. people also have a deep and vital interest in being able to continue living in a society where they have settled and sunk roots. argues that this control is rightly limited by the claims of family: We are bound to our family members through a more richly complex web of relationships. they cannot both live in their home countries and live together. So. Some special justiﬁcation is needed to override the claim to family reuniﬁcation. These relationships give rise to especially intense feelings of mutual affection and concern.
and criteria that discriminate against noncitizen residents are even worse. Immigration Admissions: The Search for Workable Policies in Germany and the United States (Oxford: Berghahn Books. although some limit these claims or undermine them in ways that are morally problematic. David Martin. For example. Often the obstacles to family reunification are not formal but administrative and procedural. pp. Should these relationships entitle them to bring in children for whom they are responsible? Most states resist extending the rights of family reuniﬁcation to either of these two categories of persons. and Hiroshi Motomura. and the moral relevance of minority cultures.. For example. Some states permit adults to bring in their parents. but being able to live with their partner may be just as vital and deep an interest for them as it is for people who are married. or without other children outside the destination country. in practice. Liberal democratic states generally acknowledge the claims of family reuniﬁcation.6 Given the importance of family reuniﬁcation. and functional equivalents and an approach that is ﬁxed and relies on criteria from the dominant culture. dependent. marriage may not be a legal option. it clearly must include a spouse and minor children. almost no state pays attention to 98 cultural differences between groups that may affect the character of the relationship between adult children and their parents. What about multiple spouses. 1997). the United States gives a higher priority to citizens than to noncitizen residents with regard to the admission of spouses and minor children and even sets a numerical limit on the number of noncitizen immediate family members who are permitted to come. and most or all other states in Europe and North America refuse to recognize them. Joseph H. cultural variability. The former leads to a more expansive deﬁnition and the latter to a more restrictive one. numerical limits on the entry of immediate family members are not morally defensible.” in Kay Hailbronner. For example a grandparent might be able to bring in a grandchild whose parents have died. 79–119. Minor children clearly qualify for family reuniﬁcation. and permission to do so becomes more likely if the parents are elderly.can be contested at the level of principle. from polygamous relationships that are legally authorized in the country of origin but forbidden in the receiving country? France used to recognize polygamous marriages contracted before the date of immigration for purposes of family reuniﬁcation but no longer does so. Some states recognize these relationships for purposes of family reunification. multiple wives. “The Family and Immigration: A Roadmap for the Ruritanian Lawmaker. The merits of the alternative approaches are intimately connected to contemporary debates over multiculturalism. From a minimalist perspective. but children who have already grown to adulthood usually do not. although some make exceptions for special circumstances. which creates unjust practices 6 Hiroshi Motomura. should it include people who are not legally married but have long-standing intimate relationships or common law marriages? For some of those in such relationships. while others do not. the neutrality of the state. no matter how narrowly one draws the category of family for admissions purposes. What about former spouses who share parenting responsibilities? In some cultures relatives who are not the biological parents may have roles and responsibilities comparable to those normally undertaken by parents in Europe and North America. All of these examples reflect a tension between an approach to the definition of family that is open to analogies. Carens . such as same-sex partners. eds. On the other hand.
The second category comprises people who arrive in one of the states of Europe or North America claiming to be refugees and asking for asylum. Since the ways to obtain admission are limited. For many people. however. such as South Asia. It then put the burden of proof on those seeking family reuniﬁcation to establish that immigration to the United Kingdom was not the purpose of the marriage. and Great Britain (New York: Oxford University Press. there are frequent complaints that people with spouses and children in some areas of the world. Remember.even though the policy is formally just. Germany. The upshot of this policy was that the right of family reuniﬁcation in the United Kingdom was more secure for EU citizens who were not British than for the British themselves because the claims of the former to family reunification were gov- erned by EU law. have to wait years for permission for their family members to immigrate because there is a huge backlog of applications. however.7 This sort of policy fails to respect the legitimate right of residents to family reuniﬁcation. It must do so. The questions are how many of them a state is obligated to admit and what criteria should be used in selecting them. Immigration and the Nation-State: The United States. which was a difﬁcult standard to meet. Some people enter sham marriages with citizens or residents with whom they neither have nor aspire to have any intimate connection. that such persons constitute only a tiny fraction of the world refugee population. it is clearly entitled to take measures to prevent this form of fraud.K. for example. within reason and not as an excuse for denying entry to legitimate spouses. Another ethical problem arises in the ways that some states try to prevent the abuse of the right of family reuniﬁcation. REFUGEES From the perspective of justice and immigration. some inevitably try to take advantage of points of access to which they are not entitled. First are those who have been determined to be refugees by some formal process conducted by the UN High Commissioner for Refugees or a potential destination country and who are then selected for resettlement by that country. The claim that such a policy merely prevents fraudulent marriages is a thin disguise for an attempt to prevent an immigration ﬂow that is politically unpopular but grounded in claims of justice. admission to the states of Europe and North America is a scarce and valuable opportunity. In Canada. Focusing on refugees as potential immigrants to advanced industrial societies entails leaving to one side a much broader set of issues about the responsibilities of states for the problems created by forced migration. If the state has the right to control immigration. even if they are acknowl7 Christian Joppke. There are two categories of people to be considered under the heading of refugees. simply for the sake of gaining admittance. Here the first question is whether such people have a claim of justice to be admitted. Here no question arises as to whether the people are really refugees. For example. resident was to immigrate. 2000). who should get in? the ethics of immigration admissions 99 . States have a moral obligation not only to respect the right of family reuniﬁcation in principle but also to develop administrative procedures that ensure that the right will be substantive. one of the key issues is how to assess the ethical questions raised by people claiming to be refugees and seeking to immigrate for that reason. until recently the United Kingdom pursued a policy of refusing admittance to people if the “primary purpose” of their marriage to a U.
and cannot usually put forward a strong claim of justice to be admitted to a new country. States treat the admission of refugees for resettlement as entirely discretionary with regard to both the number accepted and the selection of particular individuals from among the much larger pool of refugees.000 per year during the 1990s. Resettlement The number of refugees accepted for resettlement by liberal democratic states varies from country to country and year to year. For example. This oversimpliﬁes things a bit because in a few key source countries (Cuba. However. for instance. use a points system to select for resettlement those refugees who they think are most likely to adapt successfully and contribute economically. Canadian officials. for a number of years after the end of the Vietnam War. Haiti in the early 1990s) the United States has set up a process for determining whether people would qualify as refugees and for accepting them for resettlement even before they have left their country of origin. the United States took in a very high number of refugees from Southeast Asia. Carens . unlike the refugees seeking resettlement. opponents as well as supporters of the war.edged to be genuine refugees. both the United States and the countries of origin in which these programs have been established have found this a more orderly way to manage a refugee ﬂow that they anticipate would otherwise occur in a clandestine fashion. refugees awaiting or hoping for resettlement have escaped the immediate danger 100 that caused them to become refugees. In absolute numbers the United States generally accepts more than the rest of the world combined—averaging about 100. One minor qualification to this general picture is that states sometimes act as though they have a special obligation to admit particular groups of refugees when the state’s own actions have contributed to the process by which the people have become refugees. the public discussions surrounding the process made it clear that many Americans. no use of racial criteria) apply. as a prerequisite to their being formally determined to be refugees. the United States never treats these programs as policies that it is morally obliged to pursue and certainly never suggests that any particular refugee has a moral right to be admitted to the United States. people selected for resettlement have normally already found asylum outside their country. If this question is answered afﬁrmatively. Vietnam. have some sort of safe haven. Thus. given the background assumption of the right of states to control immigration. the idea of choosing refugees for their economic potential strikes many people as perverse because refugees are in desperate need.8 For this reason. felt that acceptance of these refugees was a residual moral obligation from American involvement in the war that led to their displacement. Although such people do not technically meet the Geneva Convention deﬁnition of a refugee (which must be someone outside his or her home country). the former Soviet Union. Although the United States made no formal acknowledgment of any moral obligation to accept them. but rather that only the normal constraints that apply to discretionary admissions (for example. This is not to say that there are no constraints. one must ask who deserves to be classified as a refugee because states often deny admission to asylum claimants on the grounds that they are not genuine refugees. On the other hand. 8 Joseph H. the argument for admitting refugees for resettlement is usually couched in humanitarian terms as something that is generous but not obligatory. Sweden and Canada have tended to take in the most on a per capita basis over the past few decades. What should be made of this approach to resettlement from a moral perspective? On the one hand.
But if the state’s general right to control immigration is taken as given. must be permitted to stay. well educated. By contrast if asylum seekers are denied entry and sent back. The degree of our responsibility depends both upon the ways in which our acts are connected to outcomes and upon the institutional contexts of our actions. What is striking about this requirement is that it limits the normal right of the state to control the entry and term of residence of noncitizens.” in Mark Gibney. pp. Critics of contemporary asylum policies sometimes note that asylum seekers tend not to come from the worst off among the world’s refugees. but it is implausible to suppose that we should be held responsible for the consequences of every possible course of action that we do not pursue. So from a moral perspective it can seem odd to give this subset among the world’s refugees a stronger moral claim to entry.. Open Borders? Closed Societies? The Ethical and Political Issues (New York: Greenwood Press. people who arrive in a state and claim to be refugees must be given a fair hearing to determine whether they are in fact refugees and. In such a context. There are good reasons to criticize the injustice of a world order that permits such vast disparities in the life chances of people in different countries and allows so many to live their lives in desperate poverty. the state is directly involved in what happens to them. p. Some would object that this argument rests upon a problematic distinction between acts and omissions. 9 who should get in? the ethics of immigration admissions 101 . 120. Those seeking to harm them could not do so if the destination state did not return them. That means that the moral responsibility for what happens to them is greater. regardless of how one accounts for the causes of these conditions. and wealthy than the refugee population as a whole. We are indeed as responsible for the consequences of some of our omissions as for the consequences of our actions. quite another to send a person back to the country of origin to be tortured or killed. What is required is a contextual account of responsibility. then leaving people in refugee camps once they have a safe haven does not violate any moral obligations. It is one thing to leave someone languishing in a refugee camp. not offering entry to as many immigrants as possible may indeed be morally problematic. ed. 1988). if they are. whereas Peter Singer and Renata Singer.9 What gives asylum seekers a vital moral claim. Leaving people in refugee camps rather than offering them entry is not so different from leaving people in the living conditions of many countries rather than offering them entry. which all the states of Europe and North America have signed.Asylum Under the 1951 Geneva Convention Relating to the Status of Refugees and its 1967 Protocol. 10 Ibid.. Refugees who arrive via asylum are more likely to be adult.“The Ethics of Refugee Policy. Legally this obligation derives from the decision by states to sign the Geneva Convention. but what about morally? Is it just a self-imposed limitation or does this reﬂect a deeper moral obligation toward those seeking asylum? One of the puzzles here is why the obligations of states toward asylum seekers should be so much stronger than their obligation toward refugees seeking resettlement. male. It takes resources and knowledge for people to ﬁnd their way to North America or Europe to make their claims. Refusal of entry to a refugee seeking asylum leads directly to his or her suffering.10 But the distinction is not as ﬂawed as some critics claim. however. 111–30. is the fact that their arrival involves the state directly and immediately in their fate.
pp. will resemble the cases of those just on the other side. however.the refugee seeking resettlement is already safe. stand those who suffer persecution. 13 It is possible to construct more than one category. a refugee is any person who. 31–44. See Joseph Carens. with no moral right to entry. see Joseph Carens. are people who claim to be refugees but who face no real dangers at home. what counts as a well-founded fear? Are the subjective feelings of the refugee claimant relevant or only the conditions in the country of origin? Must there be evidence that the claimant has been personally targeted for persecution. Every refugee determination system. religion. one can give some refugee claimants a more limited form of protection than others.13 Wherever that line is drawn. Carens . but we need to keep it in mind because even with the best possible deﬁnition and the best pos102 sible system for determining who ﬁts under the definition. . or is it sufficient if others similarly situated have been? To qualify as a refugee. sometimes life-threatening persecution. 1 (1992).11 So.12 At the other end. At one end. many of those who fail to gain recognition will be people who had some good reason to file a claim. a lot more than either resembles the cases of people at the ends. with the strongest moral claim to asylum. For example. of course. . to accept Jews seeking asylum in the late 1930s and even the 1940s remains a vivid memory today and provides much of the moral impetus for the maintenance of a refugee regime that includes the right to asylum as one of its components. 1982). There can be no single bright line dividing those who deserve asylum from those who do not. They want to improve their economic opportunities by migrating to advanced industrial states and use the ﬁling of an asylum claim as a way of getting a foot in the door. For example. the cases of those just on one side of the line. European Jews fleeing from Nazi Germany are the archetype of the genuine refugee. having mixed motives for their flight and facing varying degrees of risk. . owing to such fear. “owing to a wellfounded fear of being persecuted for reasons of race.” Almost every word in this definition is subject to interpretation and contestation. who barely qualify as refugees. There is instead a continuum of cases. In deciding who will receive asylum and who will not. nationality. Immigration Admissions. who barely do not qualify. So we should not assume that all failed claimants are acting in bad faith. Martin. no. will have complex legal features that make the interpretation and application of the criteria to particular cases contestable and uncertain. from an oppressive regime. no matter how good. Most asylum claimants are probably somewhere in between. 12 Irving Abella and Harold Troper. That is inevitable. The tragic and shameful failure of many countries. According to the Geneva Convention. is outside the country of his nationality and is unable to or. the legal obligation of the Geneva Convention is not purely contingent but instead is grounded in a deep moral obligation that states have toward asylum seekers. pp. 3–51. including Canada and the United States. 11 Joseph H. unwilling to avail himself of the protection of that country. “The Philosopher and the Policymaker: Two Perspectives on the Ethics of Immigration with Special Attention to the Problem of Restricting Asylum. 1933–1948 (Toronto: Lester and Orpen Dennys. is it necessary for the government itself to engage in For a fuller development of this argument..” in Hailbronner.” Public Affairs Quarterly 6. membership of a particular social group or political opinion. None Is Too Many: Canada and the Jews of Europe. the destination countries have to construct categories that draw a line across this continuum. eds. “Refugees and the Limits of Obligation. Adding categories does not change the fundamental problem raised by the need to draw lines across a continuum. and Motomura.
persecution or is it sufﬁcient if the government fails to prevent persecution by others. which means that it has to adopt the deﬁnition. “Who Is a Refugee?” Ethics 95 (January 1985). in principle. what should matter the most is the seriousness of the danger and the extent of the risk. 274–84. Thus. and they have policies and administrative arrangements in place designed to regulate this ﬂow. and then interpret and apply it through its own legal procedures. 30–51. states clearly are morally free to take in as many or as few of these immigrants as they choose. people ﬂeeing a violent civil war do not qualify as refugees under the convention. Still other states fall somewhere in between. sometimes in modified form. DISCRETIONARY ADMISSIONS The duties to admit immediate family members and refugees who come as asylum claimants are the only moral obligations that require people to be admitted by virtue of falling into particular categories. A number of scholars have criticized the convention definition on the grounds that it focuses too narrowly on targeted political threats as opposed to other dangers to human well-being that are even greater and against which the state of origin provides little or no protection. So. like many of those in Europe. 1991). From a moral perspective. of those covered.. in the current political climate. however.14 From a moral perspective. the great weakness of the deﬁnition is that it can be construed so narrowly that it excludes people from refugee status who clearly have ﬂed in fear of their lives and need external assistance. Refugee Policy: Canada and the United States (Toronto: York Lanes Press. for reasons of family reunification and shelter of refugees. They expect to admit new immigrants every year. Aristide R. people ﬂeeing the war in Bosnia were often denied formal refugee status in Europe under the convention. How do liberal democratic states behave toward potential immigrants whom the state has no special obligation to admit. even if the war itself is profoundly marked by religious and ethnic conﬂict. Escape from Violence: Conﬂict and the Refugee Crisis in the Developing World (New York: Oxford University Press.” in Howard Adelman. In practice. However. “The Refugee Concept: On Definitions. any attempt to modify the deﬁnition would be a mistake because. they are not morally free to use Andrew Shacknove. For example. Even though they may feel obligated to take in some immigrants. do not see themselves as countries of immigration. Given the background assumption of this article. Zolberg. admitting a limited number beyond their obligations for speciﬁc purposes. Some states adopt a much broader interpretation than others. and the United States. pp. like Canada. and the Careful Use of a Scarce Resource. not an expansion. 14 who should get in? the ethics of immigration admissions 103 . 1989). Astri Suhrke. ed. under many interpretations. the definition should be revised to reﬂect this wider perspective. not the source of the threat or the motivation behind it. consider themselves to be countries of immigration. such as “private” death squads? What counts as “membership in a particular social group” for purposes of gaining refugee status? What harms are serious enough to qualify as persecution? In practice each state has to implement the Geneva Convention through its own internal legislation. Politics. Other states. they try not to take in any immigrants whom they are not obliged to admit. Australia. and Sergio Aguayo. and how should they behave? States’ policies toward this sort of immigration vary widely. pp. Some states. but they do not exhaust the ways in which immigration policies are morally constrained. and David Martin. any change would almost certainly lead to a contraction. perhaps even a substantial number.
so long as some attention is paid to context. national security may be defined too broadly or interpreted too expansively. or. of course. use of this criterion is not unreasonable. The former are used to identify people who will not be admitted. and we choose among applicants on the basis of criteria. There are many areas of society quite apart from immigration in which there are more applicants than spaces. In these cases. the United States. Canada. some states may use the criminal law to repress political dissent. others are just as clearly morally impermissible. But this merely uses the term “discrimination” to mean nonrandom choice. For example. and others as morally impermissible. religion. Again. Some people may object to the use of any criteria whatsoever in deciding whom to admit. Carens . This is far too broad a constraint. or religion. States also often prohibit people with significant criminal records from entering. what may states take into account? One may distinguish between criteria of exclusion and criteria of selection. although the concern is public safety and the maintenance of law and order rather than national security. Consider admission to universities or hiring for jobs. what forms of choosing are discriminatory (using the term in a narrow sense to refer to morally objectionable forms of choosing). In the wake of September 11 a concern for national security has clearly become much more central to discussions of immigration in the United States. to put it another way. believe that the United States risks returning to the exclusionary excesses of the Cold War or has already done so. the real question is what forms of discrimination (using the term in a broad sense) are morally acceptable. In choosing among potential immigrants whom they are not obliged to admit. No state may legitimately exclude potential immigrants on the basis of race. and liberal states should be wary about reinforcing that practice by refusing admission to those so convicted. In one sense of the term. however. or ethnicity. while others think it has not yet gone far enough in excluding threats to national security. but I cannot pursue this issue further here. Some criteria are regarded as morally permissible. on the grounds that these criteria are inevitably discriminatory. In practice. Criteria of Exclusion All states use some sort of security screen. Some people. gender. and Australia all used explic- 104 Joseph H. even though the perpetrators themselves were present as visitors rather than immigrants. So. including me. such as test scores and grades. it is true that any criterion of selection discriminates against those who do not have it. No state is obliged to admit saboteurs or subversives. If some criteria of exclusion are clearly morally permissible. such as race. There is nothing problematic about this in principle. it reflects an important public interest. denying admission to people perceived to be threats to national security. There is obviously a public interest here. and any criterion of exclusion against those who do. we often select among applicants on the basis of some criteria that we regard as relevant to the position being ﬁlled. states are entitled to set numerical limits but not otherwise to distinguish among those seeking entry. we do not reject all criteria and insist on a random selection process. This is not just a hypothetical point. In this view.whatever criteria they want in deciding which ones to admit. the latter to choose who among those eligible for admission will be taken in. as was the case in the United States at the height of the Cold War.
1995). Sometimes people object that these sorts of criteria are being applied inappropriately or arbitrarily. This is incompatible with respect for human freedom and human dignity. States like Canada and the United States that take in large numbers of immigrants routinely screen applicants for admission to determine whether they will be able to support themselves ﬁnancially. If the immigrants have been selected because of their economic potential. AIDS activists have objected that the risks of contracting HIV from someone who has AIDS are much smaller than the risks of contracting other equally dangerous diseases that are not seen as grounds for exclusion. Or people may object that the authorities are wrong to assume that a particular medical condition. and no liberal democratic state uses such criteria for exclusion today. that might put unusually high demands upon the health-care system. such as a physical disability. to 15 Peter Brimelow. For example. In practice. but many immigrants are admitted primarily because of their family connections. That is why race. As with the case of race and religion. religion. such as kidney disease requiring dialysis or a transplant. The role of such criteria was not ofﬁcially eliminated until the 1960s. So. these guarantees have proven very difﬁcult to enforce. and one can hear voices today advocating a return to such policies. such as contagious diseases like tuberculosis or communicable ones like AIDS. Although these immigrants have no speciﬁc moral claim to admittance. or whether they have medical conditions. States often require domestic sponsors—people already in the country who can demonstrate that they have adequate economic resources for themselves and who will promise to support the immigrants if necessary so that they will not become dependent on the state’s social welfare system. and ethnicity cannot be used as criteria of exclusion. even though they otherwise would be. homosexuality was grounds for declaring potential immigrants inadmissible to the United States. who should get in? the ethics of immigration admissions 105 . To this list of morally impermissible criteria should be added sexual orientation. Similarly. Are these grounds for exclusion morally permissible? Let us distinguish ﬁrst between objections to particular applications of this principle and objections to the principle itself. but potential immigrants who cannot ﬁnd domestic sponsors may not be accepted. that might harm the health of the existing population. states often screen potential immigrants who have passed some preliminary hurdles to determine whether they suffer from illnesses.itly racial criteria to exclude potential immigrants in the past. creates a likelihood that the person affected will have unusually high medical costs compared with a range of other conditions that are not treated as grounds for exclusion. Yet no plausible interpretation of liberal democratic principles is compatible with the exclusion of people on such grounds. Alien Nation: Common Sense about America’s Immigration Disaster (New York: Random House. they still have a right to be treated fairly and not to be subject to a stigmatizing form of discrimination.15 In the nineteenth century the immigration of Catholics and Jews was often portrayed as a dangerous threat to American society in language that was remarkably similar to the language used today to construct Muslim immigrants as threats to liberal democracy in Europe and North America. the use of homosexuality as a criterion of exclusion reﬂects deeply rooted prejudices that cannot be defended publicly as rationally related to the common good. For many years. this is not an issue. Two commonly used criteria of exclusion are more ambiguous: financial need and medical conditions.
Some states give no weight to these relationships in their admission policies. but few are chosen. and still others. and knowledge of the dominant languages. 16 Joseph H. economic potential. give them quite a bit of emphasis. Borjas. however. aunts. those excluded on this basis have good grounds to complain that they are not being treated fairly. In practice. states do employ both financial criteria and medical conditions as justiﬁcations for excluding immediate family members. which gives only a little weight to such family ties and emphasizes instead qualities like education. but not connections that qualify the applicants for admission under the principle of family reuniﬁcation.16 George J. Criteria of Selection Many with no moral entitlement to admission seek to enter. 1990). as in the Canadian system. States violate no norm of justice and no obligation to the pool of potential immigrants in taking these relationships into account. training. Friends or Strangers: The Impact of Immigration on the U. These considerations would not be sufﬁcient to justify the exclusion of immediate family members or refugees seeking asylum. grandparents. First. as opposed to its application to particular conditions? This involves giving decisive weight to the risks and burdens of those in the destination state in making decisions about whom not to admit. from a pool among whom none is morally entitled to be admitted. Carens . Current members of a society do not have a vital enough interest in these secondary family ties for states to have a moral obligation to admit such family members. such as a genuine threat to national security. but typical examples would be siblings.the extent that the choice of these medical conditions as grounds for exclusion reﬂects popular prejudice and uninformed fear rather than a reasonable calculation of risks or burdens. Economy (New York: Basic Books. and ethnic ties in selecting among potential immigrants. What about the general principle. and paying attention to this interest violates no moral claims that the applicants have. This is an area in which states are morally free to exercise their discretion. a state may decide that these less intimate connections will play a positive role in its admissions decisions perhaps on the grounds that it is easier for those with such connections to adjust to living in a new society or because the connections matter to people who are already members of the community. some object that the emphasis on family ties leads to a selection of immigrants who are less likely to succeed economically than would be the case if the selection process focused more directly on factors relevant to economic success. and uncles. like Canada. What counts as a close enough relationship to 106 gain admission varies somewhat from one state to another.S. give them a little consideration. For example. Because of the obligations to admit people in these categories. however. like the United States. whether citizens or not. and George J. On the other hand. cousins. cultural afﬁnities. Heaven’s Door: Immigration Policy and the American Economy (Princeton: Princeton University Press. This preference has been criticized on a number of grounds. All of these approaches are morally permissible. the justiﬁcation for exclusion ought to pass a much higher threshold. The use of such criteria is morally permissible because there is an important public interest at stake. What criteria do states use and what should they use in selecting these relative few? States often use family relationships. 1999). American immigration policy gives unusually heavy weight to these sorts of family connections. while others. “Family relationships” means connections to people who are already living in the destination society. Borjas.
who should get in? the ethics of immigration admissions 107 . A second commonly used criterion of selection is the immigrant’s potential economic contribution. however.Whether Canada’s selection process really generates a pool of immigrants more likely to adapt successfully is a contested point. because relatively few people from Europe wanted to immigrate. but it does not raise any issues of justice. the policy of family preferences gave rise to a pattern of chain migration in which the overwhelming proportion of new immigrants during the past three decades has come from Asia and Latin America. the Canadian immigration process assesses potential immigrants in a complex calculation that gives weight to a number of factors. and work experience. This was explic- itly intended to restrict the flow of immigrants from outside Europe and to maintain the ethnic and racial composition of the United States. To discriminate on the basis of family connections is not self-evidently objectionable in the way that discriminating on the basis of race would be. The use of secondary family ties is not arbitrary because there are reasons for using it related to assumptions about what is good for the existing community and its members. education. So it may be right to condemn the intentions behind the policy as unjust. that would not make it unjust. The only plausible moral objection then is that this criterion perpetuates the racial and ethnic status quo. any criterion may be construed as discriminating against those who do not possess it. Even if the American policy were inefficient or unwise from certain perspectives. To say that it discriminates against those without relatives in the United States is to overlook that the potential immigrants have no claim to be admitted. although it has some merit. intentionally or not. The question is whether the criterion is arbitrary or otherwise morally objectionable. A number of European countries that have traditionally not had any 17 Brimelow. That is the point of having a criterion in the first place. The United States also relies upon an assessment of economic potential in its selection of immigrants who do not have family ties. This criticism is not ultimately persuasive. The policy did not work as intended. Indeed this is precisely what those who are opposed to the increasing ethnic and cultural diversity in the United States object to in the current policy. so that the family preferences are a disguised form of racial and ethnic discrimination. So.17 It is hard to maintain that the policy should be seen as unjustly discriminating on the basis of race and ethnicity. Again. Alien Nation. There is something to this objection. From the 1920s to the 1960s American immigration policy had a “national origins” quota that tied the number of spaces available for immigrants from other countries to the proportion of people from those countries already in the United States. For example. many of which. It is also true that the replacement of this policy in the mid-1960s with one that abolished overt forms of racial discrimination and introduced the system of family preferences was defended by its proponents on the grounds that it would perpetuate the patterns of the old policy without employing their explicitly invidious categories. A second objection is that the American emphasis on family ties is unjust because it discriminates against those who do not have relatives in the United States and is intended to reproduce the existing racial and ethnic makeup of the country. are assumed to be indicators of the immigrant’s potential for economic success in Canada. such as age. which is unfair to minorities. This was indeed a racist and unjust policy.
This is surely the lesson to be drawn from the European experience with guest workers in the 1960s and 1970s. the original terms of admission had become irrelevant. their admission is often restricted in order to ensure that they really do perform these tasks. In my view. especially if the tasks are considered undesirable from the immigrant’s perspective. however. In the face of their obvious deep connections to the places where they had moved. As a general matter. this is another criterion that seems morally permissible. such as live-in caretaking. Carens . Of course. The guest workers had been told from the outset that they could not stay permanently and had agreed to come under those terms. so long as they are strictly limited with regard to time and so long as the conditions 108 imposed are reasonable. temporary residents are entitled to become permanent ones. If consent were all that mattered. Sometimes immigrants are admitted because they possess particular skills that are in short supply in the domestic labor market. this should have made it legitimate to send them back when economic conditions changed and they were no longer needed. But the European states were unable to do this. or are willing to do certain kinds of work that local workers are unwilling to undertake. the stronger their claims become to be treated equally. the destination country is not acting altruistically in adopting this sort of immigration policy. That is an admirable course. The risk is probably greatest when their permission to enter and work is limited to one particular employer rather than to a type of work. whatever the similarity of their formal legal rights. Joseph H. such as computer programming. however. As I noted. some might think that is what justice requires. To be sure. The admission may be limited in duration as well. These restrictions on the kind of work that temporary workers do and where they do it are closely connected to the underlying rationale for having temporary workers in the ﬁrst place—the need for a certain kind of labor in certain areas. but it is not morally obligatory. It is selecting immigrants on the basis of its perception of the national interest. But since the country is morally free not to take any immigrants at all from the pool under consideration here. When immigrants are selected not for their general capacities but because of the specific labor needs of the destination country. The time must be limited because the longer people stay and work in a society. such arrangements are morally permissible. In my view. These sorts of restrictions create a clear gap between the rights of immigrants admitted conditionally and other members of civil society. given the initial assumption of this article.formal programs for recruiting immigrants have begun to consider recruitment on this basis. including immigrants who are permanent residents. so long as they are not more restrictive than is necessary for the economic function. the fact that it is guided by its own interest in its selection of some for admission cannot be a decisive objection. states are equally free to adopt a more generous policy. For that reason some people regard any such restrictions as deeply morally problematic. Perhaps the greatest danger is that the unique restrictions that temporary workers face render them much more vulnerable to mistreatment by their employers than are ordinary workers. the restrictions are permissible. taking in those whom they judge to be in greatest need. One could not eliminate the restrictions altogether without eliminating the basic idea of temporary admissions. As time passes. but even in the latter case their status renders them vulnerable.
The use of religion as a criterion of selection would violate deep liberal democratic norms about religious freedom and religious toleration. ethnic. and so on. Agnes Heller. or religious identity.19 Another criterion of selection that is used by some states in selecting immigrants and that is often seen as closely related to culture is ethnicity. Moreover. This is a reasonable view. So. U. By contrast. Italy. that constructs Muslim immigrants as cultural threats to the receiving society. Potential immigrants with ethnic ties to the dominant group in the destination society are given preference in selection. although 18 For a critique of that discourse. but it is hard to imagine any plausible interpretation of them that would be compatible with systematically favoring one religious group or disadvantaging another in the selection of immigrants. nieces and nephews. cousins. There are other aspects of culture whose use in selection would be far more problematic. no state in Europe or North America could announce that it was going to give preference to Christian immigrants or disfavor Muslim ones in its selection processes. in part on the grounds that the existing population will ﬁnd it easier to accept their arrival. than Muslim ones.K. One that would clearly be morally impermissible would be religious afﬁliation. however. stretching back over generations and involving no speciﬁc link to a particular individual in the receiving country. it would probably be accurate as an empirical matter to say that a signiﬁcant proportion of the population in many of these states would find it easier to accept Christian immigrants. there is no reason for objecting to the use of linguistic competence as one factor in the selection of immigrants. This case involves so many other complex and contested issues that I cannot pursue it here. pp. who should get in? the ethics of immigration admissions 109 . Indeed. It is important to distinguish here between ethnicity and family ties.18 Yet. Indeed a whole discourse has arisen. other things being equal. For example. eds. the cultures of all European and North American states are deeply shaped by the Christian tradition. and Aristide R. and a number of other states still do today. Moreover. and Germany. especially in Europe.. The use of ethnicity as a basis for immigrant selection is deeply problematic.: Avebury Press. Family ties involve personal relationships of descent or marriage: aunts and uncles. What these norms require is often contested. The Challenge of Diversity: Integration and Pluralism in Societies of Immigration (Aldershot. “Muslim Minorities in Liberal Democracies: The Politics of Misrecognition. knowledge of English and French is something that anyone can acquire and is not a covert marker of racial. After all.” in Rainer Bauböck. Sometimes fellow ethnics are favored not only in the initial admission decision but also in forms of social support and in access to citizenship. 19 Israel’s Law of Return presents a special case here because it employs a criterion that might be regarded as a hybrid of ethnicity and religion.A third criterion that is sometimes used in the selection of immigrants is cultural afﬁnity. it may be denied that fellow ethnics are really immigrants at all. Japan. as was the case with Germany’s postwar Aussiedler policy. English and French. It might be useful to ask why that is so. well supported by empirical evidence. In the past. The rationale behind this practice is that knowledge of the dominant language will facilitate economic and social integration. Canada’s system of selecting immigrants gives weight not only to economic potential but also to knowledge of Canada’s official languages.in part on the assumption that it will be easier for these immigrants to adapt. the United States and Canada had immigration policies favoring those with ethnic ties. 1996). see Joseph Carens and Melissa Williams. Zolberg. 157–86. an ethnic connection is something more distant. of course.
although the ethnic tie remains fundamental.: Duke University Press. 2000). reﬂected in the practices of most states in Europe and North America. In fact. In that respect. States are morally obligated to admit refugees seeking asylum and also to admit the immediate family of people who are already citizens or established residents.it may sometimes be justiﬁable in special circumstances. people of German descent in Eastern Europe and the Soviet Union were subject to discrimination and worse. In that context. if imperfectly. states should not discriminate for or against applicants on the basis of such criteria as race. 21 Ruth Rubio-Marín. and Citizenship in the Struggle for the Soul of the New Germany. West Germany’s Aussiedler policy had a more plausible justiﬁcation in decades past than it does today. in such a way as to include all of those who are subject to its political authority over the long term. Under its Aussiedler policy.22 ETHICAL CONSTRAINTS ON IMMIGRATION Even if one accepts the widely accepted premise that states have a right to control immigration. which serves in part to make this appear more like selection on the basis of cultural afﬁnity. the people of the political community. N. there are still signiﬁcant moral constraints on how that control may be exercised. and religion. all the more so when it is ethnicity alone that is the crucial factor. and cannot create special access for those who share only an ethnic link but no substantive social ties to members of the dominant ethnic group.” Yale Journal of International Law 18 (Winter 1993). 155–211. “Wer Sind Wir Wieder?” 20 Joseph H. such as the descendants of Turkish guest workers. pp. Ethics of Citizenship: Immigration and Group Rights in Germany (Durham.20 These policies were widely criticized both inside and outside Germany as being incompatible with liberal democratic commitments because they identiﬁed the political community with an ethnic group. even as a proxy for national security. Any morally satisfactory conception of liberal democracy has to construct the demos. ethnicity. Moreover. 22 Kanstroom. It implicitly calls into question the status of members of the society who come from other ethnic groups. To give preferential treatment to people with a certain ethnic background is to establish that ethnic group as having a privileged position in relation to the political community as a whole. while it effectively excluded from citizenship other people who had lived in Germany their entire lives. Carens .21 The only justiﬁcation for using ethnicity as a criterion for the selection of immigrants is when that ethnic identity is connected to a disadvantage elsewhere in the world.C. 1998). These moral constraints are not merely a theorist’s construction of the world as it ought to be. Immigration. In the period following World War II. it may have been reasonable to give special preference to them if they sought entry 110 to Germany. for example. Immigration as a Democratic Challenge: Citizenship and Inclusion in Germany and the United States (Cambridge: Cambridge University Press. Germany now limits the number of Aussiedler admitted each year and will phase out this special admissions track in the next decade.Moreover. Daniel Kanstroom. That has ceased to be a plausible rationale since 1990. Germany gave extensive social support and easy access to citizenship to people whose ancestors had left Germany hundreds of years before and who sometimes spoke no German. They are already widely. in deciding whom to admit on a discretionary basis. and William Barbieri. Germany now requires more evidence of cultural afﬁnity such as knowledge of the German language from those who are admitted in this category. German policy implicitly recognizes the increasing difﬁculty of defending that policy in the current context. “Wer Sind Wir Wieder? Laws of Asylum.
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