Why the UK should exercise limited discretionary control over immigration post-Brexit


Four years ago, on the 23rd of June, the British public voted to leave the European Union. Since then, there has been a tedious cycle of deal proposals and rejections. The constant chain of uncertainty and hit to the British economy has left both Brexiters and Remainers feeling fed up.

Many Brexiters were fuelled by the notion of protecting our economy and hopes to watch it boom. However, the reality is quite the opposite. As Business Insider reported earlier in February, “Brexit is set to have cost the UK more than £200 billion in lost economic growth by the end of this year — a figure that almost eclipses the total amount the UK has paid toward the European Union budget over the past 47 years”.

My relationship with Brexit now resembles the feelings of an unsatisfied wife who regrettably decides to sleep with her husband once in a blue moon. I don’t want it to happen but if we’re going to do it, let’s just hurry up and get it done.

This June, the government announced that free movement will be ending on the 1st January 2021 and a new points system will be implemented. This means that from this date onwards EU citizens will be treated the same as those from non-EU countries.

As GOV UK outlines: ‘Under a points-based immigration system, points are assigned for specific skills, qualifications, salaries and shortage occupations. Visas are then awarded to those who gain enough points’. There is a list of basic requirements, which the worker has to meet. Besides having the ability to speak English, the individual must hold a job offer from a Home Office approved sponsor. Most importantly, the job offer can only be at the required skill level of RQF 3 or above (A-Level and equivalent).

Although I concur that there should be discretionary control over immigration into the UK, I also believe there are important considerations that should be made in the process. Particularly with this new points-based system, I can identify fundamental ethical issues, which I believe the government have failed to consider and address adequately.

Therefore, in this post, I will briefly outline the Libertarian, Utilitarian and Egalitarian cases for open borders. In doing so, I will highlight the ethical issues the government faces when they begin to be selective of who is deemed ‘worthy’ of emigrating to the UK.

After laying these cases out, I will also elaborate on a poignant ethical concern, that will be an inescapable consequence of introducing such a system: Brain Drain. Through these cases and point of consideration, I will illustrate why the UK should instead exercise limited discretionary control of its borders post-Brexit.

By ‘limited discretionary control’, I am advocating that there should be porous borders for all unless the state can provide pro tanto reasons for rejection of immigration. These pro tanto reasons include 1. The inability of the state to provide a living income either through work or benefits, schooling and/or housing for an immigrant – which would result in them becoming a vulnerable member within society. Or, 2. If the immigrant is deemed as a genuine threat to national security.

BBC News – A projection on to No 10 Downing Street marks the moment the UK left the European Union

Despite Maurice Cranston establishing that freedom of movement is ‘the first and most fundamental of man’s liberties’, in our modern world there is still no guaranteed right of the freedom of movement. In 2014, it was reported that there were an estimated two-hundred and fourteen million international migrants in the world, yet a large percentage of that migration took place against a backdrop of unofficial controls (Blitz 2014: 1).

Despite international law affirming this right to freedom of movement, in the name of sovereignty, states are entitled to refuse immigration. These controls are justified under the protection of states’ resources and ideological foundation. In this sense, the immigration debate epitomises the conflict between the importance of the rights of the state versus the rights of non-citizens. 

The libertarian case for open borders

The view that Joseph Carens has been the fundamental motivator for the libertarian case for open borders is upheld by many and accordingly, his thinking about immigration has been a milestone in political philosophy. Carens encourages that liberal democracies should permit open borders so that whoever wishes to build a life there can do freely. States do not need to abolish, however, individuals should have the right to choose where to enjoy membership (Risse 2016: 443).

His position is based upon libertarian values which remind us that restrictive immigration policies affect both insiders and outsiders (Wellman 2011: 79). Within his piece ‘Aliens and Citizens: The Case for Open Borders’, he outlines the Rawlsian political theory known as the ‘Original Position’ (1987: 251), which I find extremely compelling and will use to support my argument that from an idealist perspective states should exercise limited discretionary control.

Immigration and the Original Position

Rawls’ political theory of the ‘Original Position’ is used to determine the morality of political issues and places individuals within a hypothetical perspective, to see how to achieve social and political justice without self-interests blocking their reasoning.

Rawls enacts this by asking what principles people would choose to govern society if they had to choose behind a ‘veil of ignorance’ (Carens 1987: 255). In explaining this original position, Rawls maintains that people would govern based on two key principles:

  1. The principle which would guarantee equality of liberty to all.
  2. The principle that social and economic inequalities may exist, but only if they were to benefit the poorest and most vulnerable in society, and if there were fair conditions which allowed equal opportunity for all.

After laying out these two key principles, Rawls establishes that people in the ‘original position’ would give priority to the first principle, essentially placing humans’ basic liberties ahead of economic benefits (Carens 1987: 255).

Applying this to the case of immigration, we can infer that the immigration policy of liberal democracies should be determined from behind this ‘veil of ignorance’. If individuals were to decide on whether their right to freedom of movement could be exercised freely or not, we would assume that without knowledge of their birth-place, all individuals would choose to be able to liberally exercise this right.

In this sense, the ‘veil of ignorance’ provides us with a strong moral compass which ensures an altruistic answer to the immigration question and thus, justifies the state’s positive responsibility for social welfare. This theory is most convincing when applied to the issue of refugees within the immigration debate.

As Gillian Brock agrees with Carens, an emphasis must be placed on the ‘neediness’ of refugees and so, when we are considering immigration policy we must ask ourselves would our position on open borders change if we were Jewish and fleeing Nazi Germany? (2016: 439). It is highly likely that if an individual was placed in such a predicament then they would choose to allocate open borders.

At the heart of making the choice whether to allow refugees to immigrate freely into our countries, is compassion, which Martha Nussbaum describes as the ‘painful emotion directed at the serious suffering of another creature or creatures’ (2013: 142).

Nussbaum’s illustration of the basic structure of compassion allows us to deeper understand why the Original Position theory creates such a strong case in advocating porous borders for all. When we make moral political and social decisions from behind the ‘veil of ignorance’, we are forced to consider whether the reality which we would choose for others, is the reality we would want ourselves. For example, Nussbaum depicts the notion that our compassion for others is based on three parts: seriousness, non-fault and similar possibilities (2013: 143).

If we then think of ourselves behind the ‘veil of ignorance’ deciding on immigration policy, we are much more likely to have compassion for those in need for three main reasons:

  1. The ‘seriousness’ of the problem intensifies with the probability that it could happen to us.
  2. We can begin to comprehend that it would not be our faults if once the ‘veil of ignorance’ was uplifted that we were suddenly refugees and immigration policy was restrictive.
  3. We would be able to consider the issue from a similarity possibility, that this could also happen to us.

Therefore, the ‘veil of ignorance’ enforces us to consider that with no prior knowledge of our birthplace, gender, race, class and/or religion, decisions should be made which ensure equality of liberty for all. On this basis, I would concur with Carens that this is a compelling argument that states should advocate open borders.

Applying this concept to the post-Brexit immigration points system, we can instantly identify issues. The education status of humans across the globe is inherently determined by their birthplace, gender, race and/or class. Therefore, to insist that one can only immigrate to the UK if they hold A-Levels as a minimum requirement is excluding a large proportion of potential migrants from non-first world countries. Those who did not have the choice to determine their race/class/birthplace, which has an overwhelming influence on their access to education.

The government are essentially sending out a message to say that if you do not have A-Levels as a minimum you are useless to our economy and society. My parents, who are British citizens do not hold A-Levels, what does that signal about the government’s perception of them? They have worked all their lives, paid their taxes, are they not as valuable to our society and economy as someone with A-Levels? Or does this standard not apply for white British citizens?

This instantly places the value of certain humans above others based on their education/academic status, which is ethically and socially problematic. It also raises serious questions regarding geopolitics. Most importantly, through an ethical lens, we must ask, what gives the current government the right to prohibit one’s freedom of movement based on their race, class, gender, education status and/or birthplace?

The egalitarian case for open borders

Grounded in the egalitarian principle that all humans are entitled to equal moral consideration, both John Carens and Michael Blake put forward strong cases for open borders. Although both cases are set up on liberalist grounds, they both surmise a very egalitarian view of the world, which I also presume.

The egalitarian case for open borders insists that regardless of nationality, every human is equally deserving of moral consideration and one’s birthplace should not dramatically affect one’s life-prospects (Wellman 2011: 59). For example, Blake enthuses that ‘to refuse entry to an impoverished foreign citizen is, in many cases, to choose to sacrifice a human life for the sake of wealth and luxury’ (Wellman 2011: 58).

In limiting or prohibiting immigration, from an egalitarian perspective, one would argue that an unjust context is established if one’s country of birth is a distinguishing factor in determining one’s prospects of living a rewarding life (Wellman 2011: 59).

Considering that an individual does not have a choice in where they are born, how can we justify their life prospects based on this? As Carens illustrates, ‘citizenship in Western liberal democracies is the modern equivalent to feudal privilege…Like feudal birthrights privileges, restrictive citizenship is hard to justify when one thinks about it closely’ (Wellman 2011: 58).

In this sense, if we are not able to guarantee that an individual is born into a prosperous country, then we need to ensure that equality of opportunity is practised. From an ideal-theory perspective, if states exercised wide discretionary control over immigration, then immigrants would be provided with the chance to access the same opportunities as those citizens.

If the British government requires the basic minimum of A-Levels or equivalent qualifications, English as a foreign language and a job offer from a Home-Office approved sponsor, then from an Egalitarian standpoint, we would expect that every foreigner has equal access to achieving these. However, we know this is not the case.

Therefore, if the British government are not investing in global initiatives to ensure that everyone has equal access to the opportunity of achieving these basic requirements, then we can conclude that the requirements are inherently discriminatory and exclusive.

Utilitarian case for open borders

The Utilitarian case for open borders contends that allowing each state to establish closed borders results in serious negative consequences (Wellman 2011: 105). There are three main consequences which Wellman illustrates are utilitarian concerns for closed borders, which I will now outline:

1. The main economic concern with enabling each state to limit its immigration control, is that this will lead to major inefficiencies. These inefficiencies would come in the form of people being prevented from reaching and capitalising on their full potential (Wellman 2011: 105). In the same way that we have established that it is an inefficient practice to separate men and women into distinct areas of employment, to forcibly exclude foreign workers from domestic labour markets would be just as inefficient.

2. Another utilitarian worry regarding closed borders is that it expectedly leads to an inefficient distribution of wealth in the world. At the current moment, there is an apparent gap between those in the world experiencing absolute poverty and those living in absolute wealth, through keeping borders closed this problem has little chance to become resolved.

3. Inequalities exist within our world beyond economics. As the world is currently geopolitically organised, there is a great deal of political tyranny, which many have argued Western powers have done little to help with (Wellman 2011: 108). Thus, to not urge for open borders, one is essentially turning their back on these individuals.

Overall, what we can infer from the Utilitarian case for open borders, is that to limit or to close immigration borders has clear serious consequences. Moreover, from a Utilitarian stance, not only would these consequences be avoided if open borders were implemented, but the issues at stake would be dramatically altered.

From both an economic and social perspective, it seems much more efficient to see the wealthy become poorer and the poor become wealthier in the face of immigration. As this transfer of wealth would harm the rich a great amount less than it would harm the poor. This weighing out of benefits and consequences which the Utilitarian stance allows helps us to think of the bigger picture rather than just a subjective position of privilege.

Further, as Wellman highlights, the benefits of keeping open borders does not just boil down to an economic benefit whereby the world’s poor countries can enter the labour markets of rich economies (2011: 106). A large influx of new immigrants would also undoubtedly provoke self-interested reasons for richer countries to support and help improve the conditions in poor countries both economically and politically to prevent further influx (Wellman 2011: 107).

Applying the Utilitarian case for open borders to the government’s proposed points-system highlights how problematic it is in terms of negative consequences. To a certain degree, one could argue that restricted ‘selective’ borders are more dangerous than completely closed borders. Hypothetically speaking, if all countries closed their borders then there would be a genuine chance for these countries to thrive on their own, with their people contributing towards the economy.

However, when a rich nation opens its borders but limits it to only the skilled and high earning candidates, it leads to even greater disparities. The UK will benefit even more than they would with completely closed borders, but the poor countries do not benefit at all.

Consideration: ‘Brain Drain’

One of the key issues of encouraging foreign workers to engage in the domestic labour markets through immigration is the ‘brain drain’. This phenomenon refers to the net movement of talented or educated individuals away from their impoverished home lands to wealthier ones (Brock and Blake 2014: 2).

This brain drain is found mainly in the medical industry, which has resulted in an increased shortage of medical personnel in sub-Saharan Africa. Developed countries such as the United States and the United Kingdom have created immigration systems, which are comparatively easier for individuals with desirable medical skills to pass through (Brock and Blake 2014: 2).

Consequently, there has been an imbalance between the amount of medical personnel these countries train and the amount they maintain. For example, in 2000 Ghana trained two-hundred and fifty new nurses, yet they lost five hundred nurses to emigration (Brock and Blake 2014: 2).

Similarly, in 2001 although there were forty new pharmacy graduates, sixty pharmacists decided to emigrate (Brock and Black 2014: 2). From these figures, it becomes clear that however much these developing countries choose to invest in medical education, as long countries such as the United States and United Kingdom continue to offer opportunities for these students, the developing countries are highly unlikely to obtain an adequate amount of medical personnel.

At the heart of the immigration debate is the relationship between inequalities and global distribution of human capital. Taking the example of the medical practice, we can see how the transfer of nurses from developing to developed societies encapsulates the transfer of net transfer from the destitute to the already wealthy.

The skills which these nurses possess, are evidently much more needed in developing countries where more lives are in serious need. In the sub-Saharan African countries discussed above, individuals are burdened with this risk of dying from serious diseases, yet we in the West feel entitled to receiving the best medical care even if this means inhibiting these individuals right to health.

As that flow would increase, the brain drain would expand into areas beyond medicine, such as teaching and lecturing.  Gillian Brock highlights in her response to Carens, that just as much as children of irregular migrants are entitled the right to free public education, so are the children who remain in the less privileged countries (Brock 2016: 438).

In this sense, if a state admits teachers from developing or less privileged countries, the state is in effect condemning those children who remain to have their fundamental right to education thwarted (Brock 2016: 438). This is an important reflection to take on the proposed points-skill immigration system, as it expands beyond the medical sector.

Overall, I am of the position that the brain drain is certainly overlooked within the immigration debate and from a moral stance, the brain drain is troubling on two main counts:

1. The countries which are typically having their human resources drained, are the same countries which were historically most brutalised by Western powers. For those who are concerned with global justice, the brain drain thus, seems to have evolved through a history of colonialism and violence. The continuation to use the resources of these countries is essentially just perpetuating these inequalities (Brock and Blake 2014: 3).

2. By allowing the more ‘educated’ or ‘talented’ individuals to immigrate with ease in comparison to other immigrants, in effect Western countries are placing individuals’ value of lives above the other. Despite states having the right to self-determination, as Carens expresses, we are to assume all people are free and equal moral persons (1987: 256) and on these grounds, we are unable to exclude certain individuals (1987: 270).

In response to the first of the two problems, I concur with Seglow that citizens and leaders of rich states have a powerful duty to help build a global order in which all persons have the chance to lead decent lives (2005: 329). Hence, if implementing restricted borders results in Western powers continuing this historical pattern of using other countries’ most valuable resources, then they must have a genuine solution to equalise these inequalities.

As Seglow maintains, it is our responsibility in the Western world to aim to spread wealth and create opportunities worldwide before implementing open borders, otherwise the same issues will just perpetuate (2005: 329).  In answer to the second issue outlined, I would advocate an egalitarian position which upholds that all humans are entitled to equal moral consideration.

Concluding comments

As José Mendoza highlights, for a state to be considered as ‘legitimate’ in his eyes, it must maintain its ‘legitimacy’ by refraining from adopting discriminatory immigration policies (2015: 80). Therefore, this would lead us to question the legitimacy of the United Kingdom. Can the UK continue to be classed as a ‘political democracy’, if it entitles certain citizens more ease at immigrating than others?

Through the three cases and one consideration, we can how the new immigration policy sets out a troubling standard for how we value and treat humans. Removing one’s freedom of movement on the basis of their education and salary not being good enough is hardly ‘democratic’. If the government fail to identify with their new system these issues and address them adequately, the UK puts itself at risk of falling into malignant ways of thinking. How different is that from Nazi ideology? Or other supremacist groups?

Overall, unless the government are going to apply limited discretionary control over immigration, then they need to be investing in initiatives to minimise or dilute the negative consequences that restrictive immigration policy is going to have on the rest of the world.

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