Over the years, with rising inequality in development, several unions, nations and entities have debated and attempted to define migration policies that are ethically and economically beneficial for themselves and the international community. Questioning the legal status and global mobility of migrants has been at the forefront of future international policy. This article aims to give you an understanding of all sides of the story, with arguments supporting liberal and conservative thought.
The free-movement trilemma
As a result of countless years of momentous study regarding the topic, there appears to be a fundamental ‘trilemma’ posed by the conflicting interests that nations face. It stems from the arguments presented by international lawyers and philosophers alike, regarding individual freedom, social justice (a fair division of resources and opportunity) and self-government (the right to self-determination). Some supporters of open borders claim that no one deserves to be restrained to a rich or poor country and that they should reserve their right to improve their economic state by migrating to a wealthier society, thus producing an argument involving social justice. Others believe in a view concerning individual freedom, which declares that just as people can voice their opinions (without slandering others), they should be allowed to move around nations as well, assuming that these migrations do not cause serious harm. To round up the trilemma, the third group of theorists believe that immigration control is a matter concerning nations and their right to self-determination, giving them the capacity to have a stake in their territory and citizens.
The concept of a trilemma comes into play when we understand that nations and states alike cannot fulfil all the aforementioned needs, due to their contradictory nature. Ergo, they are left with a choice, that affects the freedom of their citizens, the moral concept of social justice, and even the existence of nations and governments as a whole.
Libertarians preach the latter. They believe, in the pursuit of both individual freedom and social justice, which lies at the expense of democratic states. Alas, this would result in one large nation-state, namely ‘Earth’, which allows for internal migration and a massive redistribution of wealth. It is easy to see the naivety in this approach.
A second possibility is to combine the goals of global justice and national democracy if one is ready to sacrifice free movement. Massive resource transfers and external aid could provide alternatives for migration. The problem with this approach is not only that it sacrifices an important liberty, but also that it tends to ignore that the onset of development can trigger stronger outmigration (since the development of infrastructure, say an airport or a temporary increase in monetary means can lead to citizens wishing to emigrate due to their new-found affluence) and that migration can play a positive role in reducing global inequalities.
Finally, there is the pursuit of democracy and individual freedom. Although they seem to be antithetical concepts, they form a coalition when you begin to consider free movement as citizenship and not a human right. This would mean that democratic states commit to promoting international mobility for their citizens through concluding free movement arrangements with other states. Although it seems morally incorrect to sacrifice global justice for mobility, this approach allows states to pursue separate programs which contribute to social justice through resource transfers and controlled migration, which may stop states from outright rejecting citizens from particular states. Accordingly, this seems to be the best option, at least for now.
Immigrant legalization; a dilemma between justice and the rule of law
Immigrant legalization allows unauthorized migrants (illegal immigrants) to gain some form of legal status in a nation-state. This section questions whether legalization should be made a regular part of immigration law.
These policies cause an ethical dilemma for most democracies, having to balance liberal interpretations of justice and the rule of law. On one hand, these liberal thoughts are invoked, with several arguments for legalization. These arguments consist of ideas relating to recognizing the social ties migrants have developed, rewarding their contributions to the host society, and protecting migrants from exploitation. On the other, there is the rule of law, which demands the regular, impartial application of legislation. Consequently, it contradicts the aforementioned libertarian ideas, since the rule of law cannot allow iconoclasts who break migrant law to gain status, irrespective of their contributions. This would not only negate any penalties suffered by the migrants but may reward and incentivize others to follow suit.
Arguments for legalization
To justify legalization, most turn to an approach rooted in social justice, with moral arguments supporting these claims. The most prominent ones include ideas regarding social membership, contribution, and vulnerability.
First, the social membership argument says that unauthorized migrants should be granted the right to stay in their host country because they have already become members under the social ties that they have developed. When migrants have been settled for some time, they become full social members and are thus entitled to the right to stay and the opportunity to become citizens. This notion has been reciprocated positively, with many international bodies willing to accept migrants as an homage to their social contributions.
The second argument focuses on the migrants’ contributions to their host country. Boosting the economy with their labour, purchases and taxes, is a fair argument for legalization. Moral contributions also matter, especially for migrants who work in less profitable sectors, such as agriculture, household work and caretaking. Unauthorized migrants that undertake significant risks, like military personnel, are already offered citizenship in countries. Although this concept is largely reciprocated, a common criticism is that the citizens never consented to receive benefits from unauthorized migrants, who enter nations without legal permission. Here, a conflicting moral sense is invoked, especially in certain situations, such as the frontline workers during the COVID pandemic, who bore significant risks and saved many, even if they weren’t consented to do so. Thus, it can be argued that citizens must credit unauthorized migrants with their due gratitude, irrespective of the citizens’ sentiments.
The third argument for legalization is grounded in concern about the vulnerability of migrants to exploitation and subordination. In a society of equals, distinctions based on a society’s personal biases are rendered morally objectionable. Systematic inequality between groups renders some vulnerable to exploitation and subordination at the hands of others. Although we can respect the right of states to turn down migrants, if a migrant is inside their respective country, ethical arguments state that they should be subject to fair treatment by the authorities.
Arguments supporting the rule of law
Like most other composite issues, there are two sides to a coin. Individuals who believe in anti-legalization sentiments generally defect to arguments based on the rule of law. The basic idea of the rule of law is that those who exercise the state’s coercive power should not use it whenever and however they want; they must be bound by law in some meaningful sense.
To understand why legalization poses a dilemma between the rule of law and justice, it is important to clarify and distinguish the two values. Justice is concerned with the rights and material goods that the state owes to individuals, whereas the rule of law is concerned with the procedural standards that the state must respect in making and administering the law. While both justice and rule of law require respect for certain basic rights, the rule of law imposes weaker moral constraints than justice, making it fundamentally incompatible with the concept of justice. If one views laws enacted by legislators as legitimate, then one will regard immigration laws enacted by that body as legitimate even if unjust.
Three main rule of law arguments frequently arise, which relate to immigrant legalization.
The first is that it rewards and endorses lawbreaking. Unauthorized migrants violate immigration laws by crossing borders illegally or outstaying their legally determined time. Amnesty programs are often critiqued since they allow rule-breakers to be acquitted without facing the consequences of their illegal actions (as set by the law). It can be argued that the rule of law requires enacting harsh measures to deter further unauthorized migration.
A second way in which both collective legalization and individual regularization programs are said to undermine the rule of law is by endorsing ‘queue jumping.’ Many future migrants wait for many years to be admitted through traditional immigration forums. From their point of view, it is clear to see that unauthorized migrants, who are acquitted of their crimes, are seen as privileged. This can be viewed as unfair to those who have played by the rules and have been waiting for years to gain admission through the regular immigration system.
The third argument moves beyond the actions of specific rule-breakers or the particular harms experienced by others directly affected by rule-breaking to focus instead on moral hazards. Specifically, the concern is that legalization programs incentivize future unlawful actions by those not yet directly engaged in the immigration system—in particular, that large-scale amnesties create incentives for new unauthorized migration. When prospective migrants learn about amnesty programs, they may be encouraged to migrate without authorization instead of seeking admission through the legal immigration system.
This article has aimed to convey to you, the intricate predicaments faced by international policy-makers, and the different approaches towards migration policy that are frequently talked about, be it the free-movement trilemma, which examines the conflicting decisions that governments have to make, where they are forced to rethink their preferences, or the dilemma of immigrant legalization, which weighs the morality of illegal yet contributing immigrants versus the rule of law, that establishes a sense of equity.