Justice in immigration
| Author | David Miller |
| Published date | 01 October 2015 |
| Date | 01 October 2015 |
| DOI | http://doi.org/10.1177/1474885115584833 |
| Subject Matter | Articles |
E J P T
European Journal of Political Theory
2015, Vol. 14(4) 391–408
! The Author(s) 2015
Justice in immigration
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DOI: 10.1177/1474885115584833
David Miller
ept.sagepub.com
Nuffield College, University of Oxford, UK
Abstract
Legitimate states have a general right to control their borders and decide who to admit as
future citizens. Such decisions, however, are constrained by principles of justice. But which
principles? To answer this we have to analyse the multifaceted relationships that may hold
between states and prospective immigrants, distinguishing on the one hand between those
who are either inside or outside the state’s territory, and on the other between refugees,
economic migrants and ‘particularity claimants’. The claims of refugees, stemming from their
human rights, are powerful though limited in scope: they hold against eligible states generally
rather than the specific one to which they apply for asylum. Economic migrants cannot
claim a right to be admitted as such, but only a right to have legitimate selection criteria
applied to them. Particularity claimants, such as those seeking redress for harms inflicted on
them or reward for the services they have rendered to the state, must show why awarding
a right to enter is the appropriate response to their claims. Finally, does justice enable us to
establish admission priorities between these different categories of migrants?
Keywords
Immigration, borders, refugees, human rights, discrimination, reparation
Introduction
Immigration currently comes high up on the list of contested topics in most, if not
all, liberal democracies. What is immediately striking is the large gulf that separates
popular attitudes on this subject – inevitably reflected in mainstream political dis-
course – from the discussions that occur in academic settings. Broadly speaking the
public assumes that states have (and should have) very considerable leeway in
deciding upon immigration policy – who to admit and on what terms – subject
perhaps to some obligation to admit (genuine) refugees; whereas among academics
who write about immigration, border controls are usually regarded with suspicion,
as potentially involving breaches of human rights, and there is a strong disposition
to advocate open borders, again with a small rider to the effect that some control
might be necessary if the inflow turns into a torrent.1 One side sees immigration
policy as barely an issue of justice at all; the other regards current policies, at least,
as inflicting multiple injustices on those who are excluded.
Corresponding author:
David Miller, University of Oxford, Oxford, UK.
Email: david.miller@nuffield.ox.ac.uk
392
European Journal of Political Theory 14(4)
In this article, I develop a framework for thinking about the constraints that justice
places on the regime of immigration that a state may rightfully put in place. Within these
constraints, states are free to select the policy that best realises their other goals, taking
into account considerations such as economic growth, cultural diversity, population size,
the age distribution of the current inhabitants, and so forth. It follows, of course, that
immigration policies may be criticised on multiple grounds: they may be badly judged, or
counter-productive, or ungenerous to immigrants, without being unjust.
It is also important to distinguish between the justice of an immigration policy
and its legitimacy.2 An illegitimate immigration policy would be one that exposed
the state not just to censure but to outside sanction: presumably it would involve a
severe breach of immigrants’ human rights, and therefore be one that the state had
no right to implement. Justice in immigration requires that the policy chosen should
be legitimate, but it requires more than that – for instance, as we shall see later, that
it does not discriminate between prospective immigrants on unjust grounds.
There are broadly two ways in which we may approach the issue of justice in
immigration. On the one hand, we can focus on the specific nature of the relationship
between state and potential immigrant and ask what justice demands within that
relationship. On the other hand, we can look more widely at questions of distributive
justice, either social or global, and examine how a proposed immigration policy might
bear on those questions. For example, we could ask what impact an immigration
regime would have on equality of opportunity within the receiving society, or what
impact it would have on global poverty. In line with the contextual understanding of
justice in general that I have defended elsewhere (Miller, 2002), I adopt the first
approach in this article. I ask what claims immigrants in different categories can
make against the state they seek to enter, and what corresponding obligations of
justice fall upon the citizens of that state. This initial approach is not meant to exclude
the possibility that a policy that may initially appear just when considering only the
relationship between immigrant and receiving state will be compromised when we
consider its wider impact.3 For example, were such a policy to be severely detrimental
to the human rights of those not involved in the practice of immigration itself, this
would certainly count heavily against it. So an initial narrowing of focus to the direct
relationship between immigrant and receiving state is not meant to foreclose wider
questions of social or global justice, even though it may appear perverse to those who
hold non-relational theories of justice, such as utilitarianism or the global difference
principle.4 As I shall try to show, there are ambiguities in that relationship which need
to be addressed if we are going to understand the claims that immigrants have against
the state they are trying to enter. In order to gain clarity, we need to create a frame-
work into which different categories of immigrants can be placed.
A framework
In their relationship to the receiving state, immigrants differ along two main dimen-
sions: first according to whether the immigrant is physically present on the state’s
territory, and therefore already subject to its jurisdiction, or in contrast is attempt-
ing to enter from the outside; second, according to the nature of the claim that the
immigrant is making to justify his or her admission. Let me say a few words about
each of these dimensions and their significance.
Miller
393
In the first case, a line is being drawn between a person who is currently resident
in state A and who makes an application to enter state B, and a person who is
currently inside state B but has not yet been granted permission to enter. This
might be because she has entered illegally or because she has entered on a fixed-
term permit that is due to expire. Now there may also appear to be an intermediate
case, which is that of somebody standing physically at the border between states A
and B, for instance in front of an immigration official at a land border or an
airport. In order to handle this third possibility, we need to know why it matters
whether a person is physically present on state B’s territory or not. To answer this
question, we must call upon a normative account of rights to territory. On the
account that I favour, a legitimate state that claims territorial rights must offer
certain protections to all those who are physically present on the territory in ques-
tion (see further Miller, 2012a). Such a state claims a right of jurisdiction – that is it
claims the right to make laws and apply them to everyone on the territory – and to
make good that claim it must at a minimum protect the basic rights of those
present to a sufficiently high standard (it does not matter for present purposes
exactly how that standard should be set). So, in relation to the prospective immi-
grant who has already arrived on its territory, the receiving state asserts its right to
apply its laws to him – to arrest him if he has committed a crime, for instance – but
in return it has an obligation to protect certain of his rights (see further Miller,
2013b). The point for now is that none of this applies to the person who applies to
join state B while residing in state A. State B does not assert its authority over such
a person; it does not attempt to make her subject to its laws.5 Whatever obligations
the state has to this person do not arise as a corollary of the exercise of jurisdiction.
It is true of course that state B’s decision may have a significant impact on the
life of the state A resident. Indeed from one perspective the impact is the same
whether the person involved is currently inside state B or not: either they are
permitted to become a resident and perhaps future citizen of state B or they
must remain in/return to presumably less attractive state A. But although impact
in this sense is something we will have to consider is due course, I am assuming that
this is by no means the only thing relevant to the justice of an immigration decision
or policy. As indicated earlier, I take for granted here a contextual view of justice,
and from this starting point the relationship between an individual person and the
state under whose jurisdiction he currently falls is normatively significant. By virtue
of being subject to the state’s laws and policies, he has a reciprocal claim against the
state that it should at least protect his human rights, not merely by refraining from
violating them, but by making available the resources and the...
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