The Relationship between Immigration Status and Rights: Exploring the Rationale

1. The Relationship between Immigration Status and Rights: Exploring the Rationale LSE, 30 November 2010 Sarah Spencer & Jason Pobjoy Corresponding author Sarah.Spencer@Compas.ox.ac.uk

2. Outline • Our question • Context: law and policy • Insights from the literature • Method • Findings – allocation of rights • Analysis – exploring the rationales • Conclusion

3. 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 opportunityfor 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?

4. 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.

5. 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.

6. 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.

7. 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.

8. 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)

9. 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.

10. What are the appropriate limitsof 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 toour research question: What justifications have successive governments in UK provided in practice – for allocation or denial of rights? Are they sufficient?

11. 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.

12. 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.

13. Example: Access to health care

14. 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)

15. Exploring the rationales Arguments used by government to justify provision of rights • Economic objectives • Social policy objectives • Human rights obligations • Professional ethics • Practical considerations

16. Exploring the rationales Arguments used by government to justify denial of rights • Immigration control • Economic objectives • Social policy objectives

17. 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).

18. 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’.

19. 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)

20. 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’.

21. 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?).

22. 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.

23. The missing rationale The advancement of equality • 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’: • ‘Fairness and equality are important for individuals. We should all have the right toachieve 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).

24. 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’: • ‘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’. (May, 2010).

25. 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.

26. 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’).

27. 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.

28. 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.

29. Equality Act 2010Schedule 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. • 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

30. Equality Act 2010Schedule 23General 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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