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In recent years, the ‘refugee crisis’, the Brexit vote, the Windrush scandal, the ‘hostile environment’, conditions in immigration detention centres, and the Covid-19 pandemic have focused attention on the government’s migration policies. It’s common to question the justice of this or that policy, but there remains a widespread assumption that ultimately countries should be free to set their own immigration policies. While many agree that there are some important limits to state discretion—for example, states should not violate people’s human rights in the process—it is usually assumed that states have a ‘right to exclude’ non-citizens from entering and remaining in their territory and from becoming citizens. It might seem obvious they should have that right. Let’s take a moment to reflect on that assumption by examining two possible justifications in support of the state’s ‘right to exclude’.
One familiar answer is that states have a right to exclude because of something to do with democracy. The argument might go like this. Democracy is government by the people, and the people must have a say in the making of the laws, including the rules about who may enter, settle and become members. It is for ‘the people’ to decide. Right away, though, this line of thinking runs into some difficulties. The first question is ‘who are “the people” with the right to decide? Is it ‘all and only the adults in a state’? That would include some ‘non-citizens’, such as tourists, foreign students and workers, but it would exclude citizens abroad. Maybe it should be ‘all and only the citizens’, then? But this just invites us to ask ‘who are “the citizens”’? And who decides the rules around access to (and removal of) citizenship? What if the ‘democratic’ majority wanted to remove the citizenship rights of a persecuted minority? So what looked straightforward is actually more complex and requires a lot more thought.
Another well-known response is that the right to exclude is connected in some way with sovereignty. Sovereignty loomed large in the debates about Brexit. Supporters of Brexit argued that the right of EU citizens to move freely within the EU was incompatible with the UK’s sovereign right to control immigration. Sovereignty is usually understood to mean ‘supreme authority within a territory’. As a sovereign state, no one else should have the authority to tell the UK how to manage its own affairs, right?
But again, things aren’t quite so simple. We don’t need to look too far to see that states cannot always be trusted to uphold the rights of their own members, let alone to respect the rights of non-members. We know that unlimited state sovereignty can be a very dangerous thing. So it’s not necessarily the case that ‘more sovereignty’ concentrated in the hands of the state is a good thing. Furthermore, states claim that the right to control immigration is an essential component of sovereignty. But note that, in the past, states claimed that control over emigration was an essential component of sovereignty. In other words, what is considered an ‘essential component of sovereignty’ changes over time.
Once we start thinking carefully about the state’s supposed ‘right to exclude’, it turns out that what seemed obvious is not quite so clear cut after all.
By Sarah Fine
Images from wiki commons:
https://commons.wikimedia.org/wiki/File:UK_New_Blue_Passport.jpg
