Are Skill Selective Immigration Policies Just?

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1 Are Skill Selective Immigration Policies Just? Douglas MacKay c 2014 Douglas MacKay

2 Are Skill Selective Immigration Policies Just? Many high income countries have skill selective immigration policies, favoring prospective immigrants who are highly educated and/or highly skilled. In recent years, these policies have proven controversial as some scholars object to them on the grounds that they contribute to the brain drain of the highly educated from low and middle income countries. In this paper, I investigate whether it is permissible for high income countries (HICs) to adopt skill selective immigration policies. In addressing this question, my aim is to provide realistic guidance to policy makers of these countries. Since such policy makers work within the context of our current international institutional system and largely accept it as morally justified, my investigation proceeds on the basis of assumptions they can be expected to share. I therefore assume that legitimate states possess a right to exclude, as this right is characterized by international law, and are morally permitted to exercise this right to exclude foreigners; I assume that legitimate states possess a right to self-determination and are permitted to exercise this right to a reasonable degree; and I assume that HICs have a duty to aid residents of low and middle income countries (LMICs). By addressing the question of skill selective immigration policies in this way, I adopt what Joseph Carens calls a realistic approach to the ethics of immigration. 1 Rather than ask what immigration policy ought to be in a just world which may or may not be a world divided into sovereign states I address the question of the ethics of immigration within the constraints of existing moral, institutional, behavioral, and political realities. 1 See Joseph Carens, Realistic and Idealistic Approaches to the Ethics of Migration, International Migration Review 30 (1996):

3 I first address the question of whether skill selective immigration policies are just in principle. Here, I ask whether it is in principle permissible for states to take skill as a reason for inclusion, that is, a consideration in favor of selecting one prospective immigrant rather than another. I argue that it is. The goals of economic growth and ensuring a sufficient tax base are legitimate purposes of states and so it is in principle permissible for high income countries to design their immigration policies to realize them. I present this argument in part 1. In part 2, I consider the justice HICs skill selective immigration policies in light of their likely effects on residents of low and middle income countries. I argue that such policies are not unjust, even in cases where they are harmful to residents of LMICs. HICs are permitted to exercise their right to self-determination to a reasonable degree, which includes favoring skilled prospective immigrants from LMICs. However, I do argue that HICs skill selective immigration policies contribute to an unjust relation between HICs and LMICs to the extent that these policies are a factor in HICs nonfulfillment of their duty to aid residents of LMICs. 1 Is Skill a Legitimate Reason for Inclusion? May HICs take skill as a reason to favor one prospective immigrant over another? Most would no doubt agree that HICs may not take sex, gender, sexual orientation, ethnicity, race, or religion as either a reason for exclusion or inclusion. The best justification for this is that prospective immigrants are free and equal persons, and states have a duty to treat them as such whether they are citizens or not. 2 This does not necessarily mean that states must provide prospective immigrants with the same rights and benefits that they provide their citizens; after 2 See Michael Blake, Immigration and Political Equality, San Diego Law Review 45 (2008):

4 all, states subject their citizens, but not prospective immigrants, to a coercively enforced legal system and are accountable to them for the way that they do so. 3 However, states must decide whom to include and exclude on the basis of reasons that prospective immigrants can be reasonably expected to accept qua free and equal persons. 4 Just as states may not discriminate amongst their citizens on morally arbitrary grounds, so too they may not include or exclude prospective immigrants on the basis of such grounds. Like the grounds cited above, skill seems to be arbitrary with respect to many questions regarding the treatment of persons, and also seems to be dependent on characteristics e.g. talent and access to higher education that are similarly arbitrary. Does this imply that states may not take the possession of skill as a reason for inclusion? No. Consider first that it is a mistake to claim that all characteristics of persons are morally arbitrary simpliciter, and so can never provide agents with a reason to treat those having such characteristics one way rather than another. Instead, the moral arbitrariness of many characteristics is dependent on the normative domain that is in question. 5 A characteristic may be morally arbitrary with respect to some normative domains e.g. the allocation of some good such as income or occupational opportunities but not necessarily with respect to all such domains. Consider religion. It is wrong for government employers to take religious identification as a reason to employ one person rather than another; it is not wrong for religious institutions to do so in cases where the position in question involves the performance of clerical duties. 3 Ibid, Ibid, Seana Valentine Shiffrin, Incentives, Motives, and Talents, Philosophy and Public Affairs 38 (2010),

5 Like religion, skill is morally arbitrary with respect to a number of important normative domains. Arguably, skilled citizens should not be given preferential treatment in the distribution of scarce medical resources, at least when such resources are allocated by means of a government-run insurance program. Skilled citizens should also not be exempt from the duties of citizenship, including jury duty and military service when conscription is necessary (though skill may, in the latter case, be relevant to how such citizens should carry out their service). But, skill is not morally arbitrary with respect to the allocation of occupational opportunities. Within the framework of a just system of social cooperation, it is permissible for employers including government employers to take skill as a reason to favor one prospective employee over another when making hiring decisions. By contrast, it is usually impermissible for employers to take race, ethnicity, sex, gender, or sexual orientation as such a reason. These factors, unlike skill, are morally arbitrary with respect to the distribution of occupational opportunities. 6 What explains this difference? Part of the explanation is that economic growth and ensuring a sufficient tax base are legitimate aims of states. Additionally, states have a responsibility to ensure that their citizens have access to certain goods e.g. health care and education. Within limits therefore, states may in principle enact laws and policies concerning the allocation of occupational opportunities that permit employers to favor skilled citizens i.e. take skill as a reason for selecting one potential employee over another. This point is relevant to the question of immigrant selection. States can pursue the goals of economic growth, ensuring a sufficient tax base, and providing their citizens with access to certain goods by means of domestic policy initiatives, but also by means of immigration policy, 6 Ibid. 4

6 for example, by favoring prospective immigrants whose skills are in demand. Since these goals are legitimate ones, it follows that states may in principle take skill as a reason for selecting one prospective immigrant rather than another. 7 In doing so, states still respect the free and equal nature of prospective immigrants since the grounds of selection are not morally arbitrary with respect to their legitimate goals. Skill is therefore a legitimate reason for inclusion; there is nothing wrong in principle with HICs favoring skilled prospective immigrants. But, it does not follow from this that HICs skill selective immigration policies are just. HICs may have duties of justice that place constraints on the design of their immigration policies. 2 The Duty to Aid and Skill Selective Immigration Policies Political theorists disagree sharply about what international justice demands. Egalitarian cosmopolitans argue that the same egalitarian principles of distributive justice that apply domestically also apply globally. Sufficientarian cosmopolitans and weak statists reject this claim, but argue that HICs have a duty of justice to ensure that all persons can satisfy their basic needs and live under reasonably just political institutions. Finally, strong statists reject the claim that states have duties of justice to any persons but their own residents, admitting only that agents including states have a duty of humanity to reduce extreme global poverty. Despite these disagreements however, nearly all political theorists would agree that HICs at a minimum have a duty whether of justice or humanity to aid people who are unable to 7 Blake, Immigration and Political Equality,

7 satisfy their most basic needs, including food, clothing, shelter, sanitation, education, and healthcare. This duty to aid is not only supported by political theorists. All HICs have committed themselves to realizing the United Nations Millennium Development Goals by 2015 (UN MDGs), which include the eradication of extreme poverty and hunger, the universal provision of primary education, gender equality, reductions in child mortality, improvement in maternal care, and the combatting of HIV/AIDS and malaria. HICs have also committed themselves to delivering 0.7 per cent of gross national income (GNI) by 2015 to LMICs, with 0.15 to 0.20 per cent of GNI dedicated to least developed countries. 8 For the purposes of this paper, I assume that HICs possess a duty to aid residents of LMICs, and that this duty requires at minimum the realization of the above-mentioned commitments in the near term. This assumption is consistent with my realistic approach to the ethics of immigration. The duty to aid is not only widely supported by political theorists if only as a minimum requirement of international justice but also by the governments of HICs. Although HICs skill selective immigration policies are just in principle since skill is a legitimate reason for inclusion, their duty to aid places constraints of justice on the policies they may adopt that affect LMICs. HICs must ensure that the aggregate effect of their policies affecting these countries is consistent with the fulfillment of their duty to aid. Since HICs duty to aid not only involves the provision of financial aid but also the realization of development goals i.e. UN MDGs they must ensure that the aggregate effect of their policies affecting LMICs is the realization of these goals. 8 United Nations General Assembly, Resolution 56/210B, International Conference on Financing for Development, 9 July

8 This point holds for immigration policy as well, since skill selective immigration policies can negatively affect residents of LMICs by skimming off skilled workers. HICs must ensure that their immigration policies do not contribute to the non-fulfillment of this duty, leaving residents of LMICs worse off than they are entitled to be. In cases where HICs skill selective immigration policies do play a role in their non-fulfillment of their duty to aid, these policies contribute to an unjust relation between these HICs and LMICs. Importantly, it does not follow from this that HICs must ensure that their immigration policies do not harm LMICs. Nor does it follow that HICs must design their immigration policies to maximally benefit citizens of LMICs. There are, after all, a variety of ways in which HICs can discharge their duty to aid, and the harmful effects of one set of policies can be offset by the beneficial effects of others. Instead, HICs must only ensure that their policies affecting LMICs, considered in the aggregate, fulfill their duty to aid. One might object to this latter point, arguing that even if HICs ensure that their policies benefit LMICs to the degree required by the duty to aid, it does not follow that the harms caused by their immigration policies are not wrongful. To the extent that HICs skill selective immigration policies harm LMICs, they are unjust. By analogy, if I harm you, but compensate you after the fact, it does not follow that the original harm was not wrong. However, this objection rests on a faulty premise, namely, that states have a duty not to harm other states. Let me explain. States have a duty to respect the rights of other states, as well as the human rights of their citizens. The former include rights to self-determination and rights to territorial integrity. States also have a duty not to impose certain types of egregious harms on the citizens of other countries 7

9 that may not be rights violations strictly speaking. However, states do not always act wrongly when they impose harms on other states, that is, when they make states worse off than they would otherwise be. For example, if the US decides to exploit domestic sources of energy and develop green technologies, it will likely impose harms on its chief suppliers of oil, including Canada, Mexico, and Saudi Arabia; however, the US does not wrong these countries. Harms such as these are permissible since they are the inevitable result of the permissible exercise of states rights to self-determination. The right to self-determination entitles legitimate states subject to certain limitations to decide questions of domestic law and policy free of the interference of foreign states and citizens; and it entitles legitimate states to form treaties and trade agreements with other states. States are permitted to exercise this right to a reasonable degree by deciding questions of domestic and foreign policy on the basis of considerations of their own national interest. The principal liberal justification for the right to self-determination is that it enables citizens acting collectively to exercise self-governance, that is, to govern their domestic affairs and foreign interactions with other states free of the interference or direction of other agents. 9 States are permitted to exercise this right to self-determination to pursue their national interest to a reasonable degree since citizens considered collectively, like citizens considered individually, have a legitimate interest in deciding policy questions on the basis of their own shared interests, not the interests of foreigners. This right to self-determination is not only a constitutive value of the existing international institutional order, but also a key principle of a 9 See Daniel Philpott, In Defense of Self-Determination, Ethics 105 (1995):

10 number of theories of international justice. 10 It therefore constitutes a central assumption of the realistic approach I take to the ethics of immigration in this paper. Consider an analogy from the domestic case. It is permissible for people to impose harms on each other, provided that they respect each other s rights to person and property. I may secure a job that you applied for, or open a shop down the street that drives you out of business. In both cases I harm you, setting back your economic interests, but in neither case do I wrong you. By contrast, if I break your legs or throw a rock through the window of your business, I wrong you. What explains the difference? In the former case, I interfere with your purposes whereas in the latter I interfere with your purposiveness, violating your rights to person and property. As Arthur Ripstein puts it: There is thus a fundamental distinction between interfering with the purposiveness of another person and interfering with that person s purposes. I can interfere with your purposes in a variety of ways I might occupy the space that you had hoped to stand in, make arrangements with the person you had hoped to spend time with, and so on. Actions that affect you in these ways leave your purposiveness intact, because you still have the ability to determine how to use what you already have, and you are still the one who gets to determine how it will be used. All I have done is change the world in which you act See Rawls, The Law of Peoples, 37; and Andrew Altman and Christopher Heath Wellman, A Liberal Theory of International Justice (New York: Oxford University Press, 2009), Arthur Ripstein, Force and Freedom: Kant s Legal and Political Philosophy (Cambridge, MA: Harvard University Press, 2009), 41. 9

11 With respect to LMICs, HICs must ensure that the aggregate effects of their policies affecting LMICs are consistent with the fulfillment of their duty to aid. If the US harms a particular LMIC by means of its immigration policy, this harm is permissible, provided that the aggregate effect of US policies affecting this country leave it no worse off than it has a right to be. To meet this standard, the US might therefore have to ensure that the harms it causes through its immigration policy are offset by the beneficial effects of other policies. Again, consider an analogy from the domestic case. It is permissible for the state to enact policies that harm particular individuals, even if it has a duty to help them. For example, most political theorists agree that states have a duty to ensure that all citizens have access to a certain level of well-being whether this is specified by some sufficientarian principle or an egalitarian one. But, it is still permissible for the state to enact policies that harm particular individuals; the state must only ensure that it has other policies in place to maintain their well-being at the required level. It is thus permissible for the state to sign a free-trade agreement with another country even if a known consequence of doing so will be the loss of jobs in a particular industry. The state need only ensure that policies are in place to sustain the well-being of those unemployed at the requisite level, for example through the provision of unemployment benefits and retraining. HICs must ensure that their skill selective immigration policies do not play a role in their non-fulfillment of their duty to aid residents LMICs. When these policies do so, they establish and contribute to an unjust relation between the HICs and LMICs in question. 10

12 Conclusion My aim in this paper has been to investigate whether skill selective immigration policies of HICs are just. I argued first that there is nothing wrong in principle with HICs taking skill as a reason for inclusion. I argued second however that HICs must ensure that their immigration policies are consistent with the fulfillment of their duty to aid residents of LMICs. 11

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