Transcript The Relationship between Immigration Status and Rights: Exploring the Rationale LSE, 30 November 2010 Sarah Spencer & Jason Pobjoy Corresponding author [email protected].

The Relationship between Immigration Status and
Rights: Exploring the Rationale
LSE, 30 November 2010
Sarah Spencer & Jason Pobjoy
Corresponding author [email protected]
Outline
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Our question
Context: law and policy
Insights from the literature
Method
Findings – allocation of rights
Analysis – exploring the rationales
Conclusion
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Our question
‘I absolutely believe that fairness and equality of
opportunity should be the rights of every single individual
in this country’ (Theresa May, 2009)
Equality Act 2010 provides legal framework
‘to protect the rights of individuals and advance equality
of opportunity for all’ (GEO 2010)
Yet migrants (here: born abroad & non citizens) often
precluded by law from equality of opportunity - complex
pattern of access and restrictions
What is the rationale?
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Our aim
• Not comprehensive analysis but illustrative – exploring 4
rights – framework for further inquiry.
• Premise not equal rights, all respects, all migrants from
day one but, set against value attached to equality in
liberal democracy, as articulated in international human
rights law, to facilitate debate: equality for whom, when,
and on what grounds?
• Note: not examining extent to which migrants in practice
enjoy rights to which they are by law entitled.
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Linda Bosniak argues..
It is common in the literature to come across ‘laundry
lists of the vectors of subordination’ such as race,
gender, class and disability but texts invariably fail to
mention immigration status.
Texts focus on inequality among those entitled to
equality while ignoring those who by law are denied full
enjoyment of social, political and civil rights.
(Bosniak 2006:4)
This paper addresses that gap.
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Context: International &
European law
• ‘Rights’: civil and social rights protected under
international & European instruments: health, education,
housing, family life.
• Minimum standards, not ‘how’, & not absolute.
• But not discriminate - including on grounds nationality,
immigration status within ‘any other status’.
• Unless: pursues a legitimate aim and it is proportionate.
Increasingly, ECtHR requires ‘weighty reasons’.
• Provides legal framework to examine differential
treatment: a ‘culture of justification’ required.
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Domestic equality law
• Equality Act 2010 prohibits direct discrimination &
indirect unless ‘proportionate means to achieve
legitimate aim’.
• But, as in prior legislation: broad exemptions
discrimination grounds nationality, ethnic, national
origins, and indirect discrimination on grounds of length
of residence.
• When: functions under immigration & asylum laws /
regulations.
• No safeguard built in: no equality impact assessment,
proportionality test, Independent Monitor
• Yet still subject obligations under international &
European law.
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Universal or Citizens’ rights?
• Soysal (1994:1) confidence ‘rights and privileges once
reserved for citizens of a nation are codified and
expanded as personal rights’
• But limits on rights often fall below threshold that brings
international norms into play: ‘thus a series of internal
contradictions between universal human rights and
territorial sovereignty are built into the logic of the most
comprehensive international law documents in the
world’. (Benhabib 2004:11)
• This denial of rights undermines liberal values –
including universal franchise. (Hammar 1990)
• Ought to be a presumption in favour of equality. (Baubock
1994)
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Limits on rights a function
of immigration control
• But ‘shifting contours of rights’ for migrants serve functions for state:
defending public purse, labour market & monitoring migrant
behaviour (Morris 2002:104)
• Yet ‘the pervasive and equally powerful rights dynamic in liberal
democracies’ (eg right to family reunion) major factor constraining
states’ capacity limit future migration & deport. (Hollifield 2004)
• Rights also affect decisions & opportunities to migrate, hence states
trade rights v numbers allowed/encouraged to enter. Cannot
separate analysis of rights from analysis states’ aims. (Ruhs 2010)
• The ‘liberal constraint’ has force because institutionalised, eg in
Judiciary, welfare state; and can reflect state’s quest for legitimacy.
But legitimacy also derived from privileging rights of own nationals.
(Boswell 2007)
• IE: need to explore rationale for granting rights as well as denial.
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What are the appropriate limits
of border control?
• When is it legitimate for states to impose restrictions on
rights as condition of entry and when should that
capacity be superseded by the equality principle?
(Bosniak 2006)
• Eg due process of (ordinary) criminal law – equality
principle prevails; in welfare benefits - does not
• ‘What constitutes sufficient justification for that
discrimination?’
• Takes us to our research question: What justifications
have successive governments in UK provided in practice
– for allocation or denial of rights? Are they sufficient?
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Research questions
• The allocation of rights.
• The rationale for the provision or denial of rights.
8 categories of migrants:
• EEA nationals, labour (PBS Tiers 1 and 2); non EEA students (PBS
Tier 4), dependants, refugees, asylum seekers, refused asylum
seekers.
4 rights:
• Healthcare, education, social housing, family reunion/union.
• Methodology.
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The allocation of rights
• A complex pattern of restrictions for migrants.
• Constantly shifting.
• An attempt to map out the existing allocation of the four
rights to eight categories of migrants, in order to identify
current gaps in protection.
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Example:
Access to health care
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Exploring the rationales
• ‘The state is not a monolithic entity whose decisions are
always rational in the sense that they result in policies
that maximise a clear set of objectives in a transparent
manner. In practice, the “state” comprises various state
institutions including different government departments
with varying responsibilities, interests and capacities in
the making and implementation of public policies’.
(Ruhs and Anderson 2007: 6)
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Exploring the rationales
Arguments used by government to justify provision of rights
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Economic objectives
Social policy objectives
Human rights obligations
Professional ethics
Practical considerations
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Exploring the rationales
Arguments used by government to justify denial of rights
• Immigration control
• Economic objectives
• Social policy objectives
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The provision of rights
Economic objectives
• Economic benefits of a healthy and educated society
(but, what about further/higher education; restrictions on
treatment for HIV/AIDS?).
• Attracting highly skilled and skilled labour migrants, and
students (for example, by allowing to be accompanied by
family members).
• Free movement rights of EEA nationals (underpinned by
economic objectives).
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The provision of rights
Social policy objectives
• ‘The imperative duty to protect public health’.
• Education for those of compulsory school age (currently
5-16 years) to ‘secure the future success of our country
and society’.
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The provision of rights
Human rights obligations
• Access to health care
• Family union and reunion.
• Human rights arguments often used to criticise current
restrictions on rights (including, occasionally, arguments
for equality).
• Legal obligations (ECHR domestically enforceable via
HRA)
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The provision of rights
Professional ethics
• Health professionals
Practical considerations
• The cost of enforcing restrictions (for example, access to
health care).
• The need for restrictions to be ‘practical, proportionate
and cost effective’.
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The denial of rights
Immigration control
• To deter arrival of those perceived to be attracted by
access to services and to encourage irregular migrants
to leave (on both of which evidence challenged)
• Restrictions on entry to the UK of marriage (concerns
about immigration evasion/forced marriage – underlying
concerns re immigration numbers?).
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The denial of rights
Economic objectives
• The cost of providing public services.
• Access to the NHS (but not access to education
services?).
• Recent consultation re compulsory health insurance for
some categories of migrants.
Social policy objectives
• Appeasing public concern. For example, pressure on
government in allocation of social housing.
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The missing rationale
The advancement of equality
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Labour Government’s last Business Plan for the Government Equality Office
(2010-2011) cited three reasons why its vision was for a ‘fair and equal
society for all’:
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‘Fairness and equality are important for individuals. We should all have the right to achieve
our potential, regardless of our background or personal characteristics such as gender, race
or age, and it is unacceptable that factors such as where we are born should have a
significant and lasting difference to our ability to realise our aspirations.
– Realising this ambition will be critical not just for each of us as individuals, but is also critical
for our society and for our economy, and for a return to sustained growth……A key element
of the Government’s strategy to increase prosperity for the future therefore will be to ensure
that we draw on, develop and retain all the available talents, and that goods and services are
accessible by all.
– An equal society is more cohesive and at ease with itself’.
(GEO, 2010).
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The missing rationale
•
In November 2010, Theresa May, Minister for Women and Equalities
stressed that equality ‘is at the heart of what [the] coalition government is
about’:
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‘Morally, everyone would agree that people have a right to be treated equally and to live their
lives free from discrimination. Anyone who has ever been on the receiving end of
discrimination knows how painful, hurtful and damaging it can be and why we should seek to
eliminate it from our society. And anyone who has ever witnessed discrimination would want
to stamp it out.
So equality is not just important to us as individuals. It is also essential to our wellbeing as a
society. Strong communities are ones where everyone feels like they have got a voice and
can make a difference.
And those people within communities who are allowed to fall too far behind are more likely to
get caught up in social problems like crime, addiction and unemployment.
That brings me on to the third reason why equality matters. Economically, equality of
opportunity is vital to our prosperity. It is central to building a strong, modern economy that
benefits from the talents of all of its members.
So equality is not an add on or an optional extra that we should only care about when money
is plentiful – it matters morally, it is important to our well-being as a society and it is crucial to
our economy’.
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(May, 2010).
Conclusions
• Categorised different rationales that have been used by
government to justify the provision or denial of particular
rights to particular categories of migrants.
• Have identified an additional rationale, which has
received scant attention: the advancement of equality.
• This ‘missing’ rationale finds support in
– (a) the value attached to equality in a liberal democracy, as
reflected in recent review and reform of the legal framework to
protect against discrimination and promote equality in the United
Kingdom; and
– (b) international and European human rights standards.
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Conclusions
• Any one of these rationales (though likely a combination)
might provide an ‘objective and reasonable’ justification
for differential treatment between citizens and migrants,
or between different categories of migrants.
• In order to undertake this ‘balancing exercise’ it is
important that any justification is explicit, and that it has a
solid evidential foundation. (that is, we need to promote
a ‘culture of justification’).
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Conclusions
• At present, in the context of allocating rights to migrants,
a general ‘culture of justification’ is lacking.
• Two potential reasons for this:
– An assumption that the right to be discriminated against simply
does not apply to migrants (consider Schedule 3 and Schedule
23 of the Equality Act 2010).
– An assumption that status as a migrant will automatically provide
an objective and reasonable justification for differential
treatment; that is, sufficient justification for the hierarchical
allocation of rights.
• Both assumptions are unwarranted and incorrect as a
matter of law.
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Conclusions
• It is necessary for for the government to critically
examine conflicting pressures and rationales, to identify
if and where the balance might need to be redrawn.
• In our view, that examination should be anchored in
principles of equality and non-discrimination.
• Only a thorough analysis of the evidence on which any
exclusion from rights is based, and the consequences of
that exclusion, will make it possible to assess whether
government is indeed justified in ‘taking the border
inside’ to restrict the rights of those individuals.
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Equality Act 2010
Schedule 3, Part 4
‘Nationality and Ethnic or National Origins’
17 (1) This paragraph applies in relation to race discrimination so far as relating to
(a) nationality, or (b) ethnic or national origins.
(2)Section 29 does not apply to anything done by a relevant person in the exercise of
functions exercisable by virtue of a relevant enactment.
[A ‘relevant person’ is defined in 17(3)-(4) as a Minister of the Crown or a person
required or authorised to act by a Minister or by a relevant Act or instrument under an
Act.]
(5)The relevant enactments are— (a) the Immigration Acts, (b) the Special
Immigration Appeals Commission Act 1997, (c) a provision made under section 2(2) of
the European Communities Act 1972 which relates to immigration or asylum, and (d)
a provision of Community law which relates to immigration or asylum.
[except sections relating to powers of arrest, entry and search].
Note: Section 29 makes discrimination in public services unlawful
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Equality Act 2010
Schedule 23
General exceptions
1 (1) This paragraph applies to anything done—
(a) in pursuance of an enactment;
(b) in pursuance of an instrument made by a member of the executive under an enactment;
(c) to comply with a requirement imposed (whether before or after the passing of this Act) by a
member of the executive by virtue of an enactment;
(d) in pursuance of arrangements made (whether before or after the passing of this Act) by or
with the approval of, or for the time being approved by, a Minister of the Crown;
(e) to comply with a condition imposed (whether before or after the passing of this Act) by a
Minister of the Crown.
(2) A person does not contravene Part 3, 4, 5 or 6 by doing anything to which this paragraph applies
which discriminates against another because of the other's nationality.
(3) A person (A) does not contravene Part 3, 4, 5 or 6 if, by doing anything to which this paragraph
applies, A discriminates against another (B) by applying to B a provision, criterion or practice
which relates to—
(a) B's place of ordinary residence;
(b) the length of time B has been present or resident in or outside the United Kingdom or an area
within it.
Note Parts, 3, 4, 5 and 6 of the Act cover discrimination in services, public functions,
premises, employment and education
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