2
Is There a Human Right to Immigrate?
David Miller
Is there a human right to immigrate? The importance of this question may
need no underlining, but just to spell it out brieﬂy: all states in today’s world
proclaim their right to control their borders, deciding who should be admitted
and who should not. Moreover, in many cases this right is coercively enforced,
through the familiar apparatus of border control, and the harsh measures that
await would-be immigrants if they fail to satisfy the legal requirements for
entry. If there were indeed a human right to immigrate, all of this would be
unacceptable. States would have to open their borders to all comers unless
they could show that there were speciﬁc individuals whose admission posed a
threat to the human rights of others. So the question I have posed, if answered
in the afﬁrmative, would have very radical practical implications. But that is
no reason not to explore it. Human rights can make heavy moral demands
on us.1
The fact that acknowledging this right would oblige us to abandon
policies that may also serve important ends—if we think that immigration
controls are necessary for social cohesion, or preservation of the national
culture, or other values—would not be sufﬁcient. We would at the very least
have to show that these ends are so essential to human welfare that they can
justify overriding a human right. But the issue does not arise unless it can be
demonstrated that there is a genuine human right to immigrate. How might
this be done?
If we tried to answer our question by consulting any of the standard human
rights documents, the answer we would get would be an immediate No.
A human right to immigrate means, I assume, a universal right to cross the
borders of any state and remain within them for as long as one chooses. As
1
This is true of human rights that have already gained widespread recognition, such as the right
to subsistence.
I have just pointed out, to accept such a right would deprive every state of one of
the powers it currently prizes, namely the right to decide whom to admit to its
territory and on what terms.2
Not surprisingly, therefore, since the main documents
in which human rights are encoded have been drawn up and agreed to by
states, or their representatives, this particular right is notable by its absence. The
Universal Declaration of Human Rights of 1948 asserts, in Article 13, that:
(1) Everyone has the right to freedom of movement and residence within
the borders of each State.
(2) Everyone has the right to leave any country, including his own, and to
return to his country.
The failure of Article 13 to mention any right to enter is mitigated slightly, but
only slightly, by Article 14, which states that:
(1) Everyone has the right to seek and to enjoy in other countries asylum
from persecution.3
The rather lengthier International Covenant on Civil and Political Rights of 1966
sets out, in Article 12, essentially the same rights as in Article 13 of the
Declaration, only pausing to draw them more narrowly by adding a list of
grounds (“national security, public order (ordre public), public health or morals
or the rights and freedoms of others”) on which they may be restricted. The
European Convention for the Protection of Human Rights and Fundamental Freedoms
of 1950 makes no mention of the issue of migration in either direction
(though a Protocol added in 1952 closely follows the wording of the International
Covenant).4
This of course does not settle the matter, since it is widely recognized that
these formal documents may well not capture all and only those provisions
that deserve to be counted as human rights. If we consider the main philosophical
treatments of the idea of human rights, however, the purported right
to immigrate is rarely discussed. It does not feature, for example, in James
Nickel’s Making Sense of Human Rights, or in the third chapter (“Human
Rights”) of Allen Buchanan’s Justice, Legitimacy and Self-Determination.5
James
2
States may in certain instances decide to relinquish this right, as the European states that have
signed up to the Schengen agreement have done. But note that even here the relinquishing is only
partial since the EU as a whole imposes tough controls on immigration from outside its boundaries.
3
Ian Brownlie and Guy S. Goodwin-Gill (eds.), Basic Documents on Human Rights, 5th edn
(Oxford: Oxford University Press, 2006), p. 26.
4
Brownlie and Goodwin-Gill, Basic Documents on Human Rights, pp. 362, 612–16, 625.
5
James Nickel, Making Sense of Human Rights, 2nd edn (Oxford: Blackwell, 2007); Allen
Buchanan, Justice, Legitimacy and Self-Determination: Moral Foundations for International Law
(Oxford: Oxford University Press, 2004). Buchanan does however mention immigration when
discussing “the place of distributive justice in international law.” He argues that the struggle for
distributive justice often takes place in areas whose connection to standard conceptions of human
David Miller
12
Grifﬁn discusses the right to freedom of movement and residence in On
Human Rights, but only to argue that even in domestic settings there is no
such unlimited right.6
We are more likely to ﬁnd the right to immigrate
defended as part of a more general argument in favor of open borders, and it
is in fact tentatively asserted, although only in passing, in at least two of
Joseph Carens’ articles on immigration.7
Something closer to a defense can
be found in Michael Dummett’s On Immigration and Refugees, though Dummett
draws back from claiming that there is a strong right to immigrate.8
He
does so on the grounds that a genuine, obligation-imposing right must be
unconditional, whereas he acknowledges two grounds on which states may
justiﬁably set limits to immigration, one being their people’s risk of being
“submerged” by immigrants from a different culture, the other being population
density. Dummett therefore argues that the right to immigrate can only
be a right in the “weaker, conditional sense,” amounting to a presumption
that one should be allowed to enter unless the receiving state can give speciﬁc
grounds for refusing entry.9
However, nearly all accounts of rights are conditional
in this sense, since they concede that catastrophic circumstances may
arise in which even basic human rights can justiﬁably be set aside. I think,
therefore, that we may count Dummett as a supporter of the human right to
immigrate as normally understood.
An open borders view does not of course need to base itself on the proposition
that there is a human right to immigrate. It can be defended in other
terms—for example, by showing that borders must be open if equality of
opportunity is to be realized at global level, or by showing that states lack the
authority to exclude immigrants. Nevertheless, given the force of human
rights arguments in contemporary political culture, the right in question, if
it could be established, would provide the strongest available grounds
for removing immigration restrictions. Kieran Oberman’s contribution to
this volume, which sets out explicitly to defend a human right to immigrate,
is therefore a welcome development. Nevertheless I remain skeptical, and
will try to show in what follows where Oberman’s and other arguments
go astray.
rights is unclear or at least indirect, and mentions “the right to immigrate to states that offer greater
economic opportunities” as one such area (p. 194).
6
James Grifﬁn, On Human Rights (Oxford: Oxford University Press, 2008), pp. 195–6.
7
Joseph H. Carens, “Migration and Morality: a liberal egalitarian perspective” in Brian Barry and
Robert E. Goodin (eds.), Free Movement: Ethical Issues in the Transnational Migration of People and of
Money (Hemel Hempstead: Harvester Wheatsheaf, 1992), pp. 27–8; Joseph H. Carens, “A Reply to
Meilaender: Reconsidering Open Borders,” International Migration Review 33 (1999), 1082–97
at 1093–6. Carens defends the right more openly in Joseph H. Carens, The Ethics of Immigration
(Oxford: Oxford University Press, 2013), ch. 11.
8
Michael Dummett, On Immigration and Refugees (London: Routledge, 2001), ch. 3.
9
Dummett, On Immigration and Refugees, p. 57.
Is There a Human Right to Immigrate?
13
2.1 Clarifying the Human Right to Immigrate
It is important ﬁrst to clarify what a human right to immigrate would mean. It
is to be understood as a universal right held against all states not to prevent
those who wish to settle on their territory from doing so. In the background
there must be a conception of the rights that someone has as a matter of
course merely by virtue of being a resident in the territory in question. This is
needed to block the possibility that a state might impose no barriers to entry as
such, but immediately consign all the immigrants who arrived to rat-infested
dungeons. Clearly this would not count as recognizing a right to immigrate.
On the other hand, it is not expected, even by those who favor open borders,
that states must immediately extend full citizenship rights to immigrants.10
The question then is how far immigrants may be burdened, relative to citizens,
without violating their proposed human right to immigrate. One way to
answer this question is to say that the right to immigrate is fulﬁlled so long as
the other human rights of the immigrants are protected in the society they
enter. This would rule out the rat-infested dungeons, but leave it somewhat
ﬂexible as to how far immigrants are given political rights, extensive rights to
welfare, and so forth. Setting the bar fairly low here is intended to be a friendly
gesture to those who want to defend the human right to immigrate, since it
reduces the justiﬁcatory burden they have to bear.
Also friendly is my conception of the right to immigrate as a right not to be
prevented from entering, and not as a right to be assisted in traveling to the
immigrant’s new homeland. In today’s world, clearly, a major obstacle to
migrating, for many people, is the ﬁnancial cost of doing so. The arguments
used to defend a human right to immigrate (which we will come to shortly)
might then seem to entail that receiving states should take positive action to
defray these costs. Against this, it could be argued that the burden of assisting
migration needs to be shared on some equitable basis between all states,
whether or not they are attractive to migrants. To avoid getting into the
complexities here, I will interpret the would-be immigrant’s human right
simply as a right not to be prevented from entering, again making some
tacit assumptions about what the “normal” costs of migrating would be.11
At the same time, however, the human right to immigrate must be understood
to mean the right to migrate to any state, not just to one or a few states. It
would not be satisﬁed by a system in which every human being was entered
into a lottery whose results gave them the right to move to one country other
10
See, for example, Joseph H. Carens, “The Rights of Irregular Migrants,” Ethics and International
Affairs 22 (2008), 163–86.
11
This is to avoid the possibility that a state might claim to recognize a human right to
immigrate by granting residence only to those who were willing to pay a very high fee, or by
forcing airlines and shipping companies to charge potential immigrants extravagant fares, etc.
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14
than their own, or even by a system that allowed each person to nominate the
particular state they would ideally like to join. This underlines the point that
the right to immigrate cannot be derived straightforwardly from the right of
exit, included as we saw in the UN Declaration. The right to leave one’s
present country of residence can be satisﬁed so long as there is at least one
other place that one is not prevented from entering. Of course it can be argued
that the reasons underlying the right to leave can also be used to justify a
universal right to immigrate.12
Whether that argument holds remains to be
seen. The analytical point is that the right to leave one particular state does
not entail the right to enter any state of one’s choosing. Further work needs to
be done to justify the latter right.
With these clariﬁcatory remarks concluded, let me now ask how one might
set about justifying a human right to immigrate. As I have observed, this
cannot be done by appeal to current international law insofar as it is embodied
in the major human rights documents. Instead the justiﬁcation has to appeal
to whatever one takes to ground human rights generally. Before examining
these grounds in greater detail, however, it is worth distinguishing three
justiﬁcatory strategies that may be used when one seeks to add a new human
right to the established list. This is important, because it is not always clear
which strategy is being employed by advocates of a human right to immigrate.
First, there is the direct strategy. Here the argument moves directly from the
grounding feature to the right. Suppose one thinks, as a general matter, that
human rights are justiﬁed by showing that they serve basic human interests
(perhaps picked out in a certain way). Then the justiﬁcation offered in support
of a human right to immigrate will be that such a right is necessary to advance
the interests in question. The right will stand alongside and be justiﬁed in the
same way as existing rights to bodily integrity, freedom of speech, subsistence,
and so forth. Second, there is the instrumental strategy. Here the right is
justiﬁed by showing that its recognition is instrumental to other human rights
that have already found a place on the canonical list. Unless this new right is
recognized, the argument goes, these other rights will not be properly realized,
or will be insecure. Thus an instrumental argument for a human right to
democracy does not try to show that democratic rights serve their bearers’
interests directly, but that they are essential to guarantee other rights such as
freedom of speech and subsistence.13
Third, there is what might be called the
12
This argument is made in Phillip Cole, Philosophies of Exclusion: Liberal Political Theory and
Immigration (Edinburgh: Edinburgh University Press, 2000), ch. 3. See also Ann Dummett, “The
Transnational Migration of People Seen from within a Natural Law Perspective” in Barry and
Goodin (eds.), Free Movement, pp. 169–80. For further discussion of the right to leave, see
the chapters by Anna Stilz and Christopher Heath Wellman in this volume.
13
For a good example of such an argument, see Thomas Christiano, “An Instrumental
Argument for a Human Right to Democracy,” Philosophy and Public Affairs 39 (2011), 142–76.
Is There a Human Right to Immigrate?
15
cantilever strategy. This involves showing that the new right is a logical extension
of human rights that are already recognized. The argument is that there is
something irrational or arbitrary about recognizing A as a human right, but
not recognizing B. In the case we are examining, arguments which claim that
it is arbitrary to assert a right to free movement within state boundaries
without also asserting a right to free movement across them (and hence rights
to emigrate and immigrate) will qualify as instances of the cantilever strategy.
(It remains a distinct strategy provided “arbitrariness” is not cashed out in
terms of the same grounds applying in both domains, in which case it reduces
to the direct strategy.) A cantilever argument proper will avoid delving into
the grounds on which the right is claimed, and instead focus on the alleged
absurdity of recognizing A as a right without at the same time recognizing B.
Of the three strategies for identifying human rights I have distinguished,
the direct strategy seems most compelling. The instrumental strategy suffers
from the weakness that it rests on an empirical claim about what is necessary
for the protection of human rights other than the one at issue; such claims are
often contestable. The cantilever strategy faces the difﬁculty that the assertions
it makes about irrationality or arbitrariness may be challenged by those
who think the supposed analogy between right A and right B is spurious, or
that recognizing B would have (harmful) consequences that recognizing
A does not have. Let us begin, therefore, with the direct strategy.
2.2 Direct and Instrumental Justiﬁcatory Strategies
How might a direct argument for the human right to immigrate be constructed?
It would have to meet three conditions. First, it would need to show that the
grounds on which the right is being claimed are sufﬁciently strong. Suppose,
as suggested earlier, that the grounding will take the form of showing that the
right is needed to protect certain human interests. We can leave it as an open
question for present purposes how these interests are to be understood—
whether they are interpreted as “human needs” or “conditions for human
agency” or “conditions for human dignity,” and so on. All that matters is that
the interests should be ones that all human beings share and that they carry
enough moral weight to support human rights.14
Second, it would need to
14
This condition rules out grounding human rights on a strong form of autonomy, which
otherwise might be used to justify an expansive right to free movement. Autonomy in this sense,
which goes beyond the requirements for human agency, is highly esteemed by liberals, but cannot
plausibly be represented as an interest shared by all human beings. For further elaboration of
this point, see my critical discussion of James Grifﬁn’s view in “Personhood versus Human Needs
as Grounds for Human Rights” in Roger Crisp (ed.), Grifﬁn on Human Rights (Oxford: Oxford
University Press, 2014), pp. 152–69.
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16
show that the right was feasible, in the sense that the obligations that would
be created by recognizing it were ones that it was possible for other human
beings to discharge. How this feasibility condition is to be understood is again
something that needs to be left open,15
since there can be different views
about how “realist” or “utopian” our account of human rights should be, but
it would not make sense, for instance, to claim that there is a human right to a
life entirely free from illness simply on the grounds that people would have an
interest in enjoying this. Third, the grounding argument must show that
recognizing the candidate right would not interfere with other rights that
have already been recognized, or if it would, that the relevant human interests
are best served by admitting the new right and retrenching upon others. This,
then, is a compatibility requirement. We know that the exercise of some rights
we might think of as human rights can impact on others, either by imposing
costs or by imposing obligations. An unlimited right of free speech may
infringe rights to privacy—so we must either limit the former right by disqualifying
speech that consists in revealing information about people that
they have a strong interest in remaining private, or we must weaken the right
to privacy so that speech does not count as infringing it. Or, another case, we
might rule out a very expansive right to education or medical care on the
grounds that this would impose excessive obligations on those who would
have to provide the necessary resources.16
The reason for imposing such a compatibility requirement is that we want
to avoid trading human rights off against each other if we possibly can. We
cannot avoid all such trade-offs, because unusual circumstances may arise
where we have to make a choice between infringing right A and infringing
right B.17
But we want the circumstances to be unusual, otherwise there is a
danger that the special mandatory quality of human rights will be dissipated.
The idea was invented mainly in order to set strict limits to what states can do
to their own populations without attracting moral censure and international
condemnation. For this purpose to be achieved, the human rights that we
include on our list must serve as trumps in relation to the other policy goals
that states may have, such as economic growth or promoting the national
15
For a good discussion of the concept of feasibility in general, see Pablo Gilabert and Holly
Lawford-Smith, “Political Feasibility: A Conceptual Exploration,” Political Studies 60 (2012),
809–25; also Pablo Gilabert, “Feasibility and Socialism,” Journal of Political Philosophy 19 (2011),
52–63.
16
I have explored this compatibility requirement more fully in National Responsibility and Global
Justice (Oxford: Oxford University Press, 2007), ch. 7, and in “Grounding Human Rights,” Critical
Review of International Social and Political Philosophy 15 (2012), 407–27.
17
It is also true that there can legitimately be some variation when human rights are given
precise speciﬁcation in national constitutions or other instruments. Where exactly the boundaries
of a right such as freedom of religion should be set is a matter for deliberation in each society.
Nevertheless the process of speciﬁcation should ensure that as far as possible the resulting rights do
not collide with one another.
Is There a Human Right to Immigrate?
17
culture. But it will also be self-defeating if human rights are constantly having
to be set against one another, because this will give states too much freedom to
justify rights-infringing policies by appeal to what are claimed to be competing
human rights.18
If we apply these three justiﬁcatory requirements—sufﬁciently strong
grounds, feasibility, and compatibility—to the right to immigrate, the feasibility
requirement seems least problematic. This is particularly so since I have
deﬁned the right to immigrate as a right not to be prevented from entering,
and not as a right to be assisted. The main reason for thinking that it would be
infeasible to recognize this as a human right is that states, and perhaps their
populations, would oppose it; but this is not a relevant reason when we are
considering human rights. It would certainly be possible for states to abandon
border controls and open their territories to all comers. Perhaps one can
envisage scenarios in which, say, everyone attempted to move to Lichtenstein,
and this was physically impossible, but these can be set aside as the kind of
exceptional circumstance under which virtually any human right might have
to be curtailed.
Compatibility seems likely to be a greater problem, but ﬁrst let us see
whether the grounding condition can be met. As I noted earlier, there are
different views about what can ground human rights, so it may be that the
right to migrate will qualify on some of these but not others. What the various
grounding theories have in common, however, is that they are trying to
identify some feature of human beings that is vitally important to them. The
general form of these theories is that X qualiﬁes as a human right because if
people are not granted X, something of great signiﬁcance to them is likely to
be lost—they will not be able to live in a way that it is morally essential for
humans to live. So it is worth asking why migration might have this kind of
importance in human life.
On the face of it, it seems unlikely that it could have. We can distinguish
two aspects of migration. First there is the very act of moving across a border;
then there is the resulting change of environment—one moves into a society
whose physical features, economy, legal system, culture, and so on are to a
greater or lesser extent different from those of the society one has left. Let us
consider these in turn. How important could it be just to move across a border?
There are certainly ways of life—nomadic ones—in which movement as such is
18
Note that the argument I make here is distinct from the argument typically offered by
libertarians in defence of the claim that genuine rights can never conﬂict—they must all be
compossible. This libertarian argument, which has the effect of allowing only negative rights to
count as such, relies upon the thesis that every right entails a strictly correlative duty. The
argument I offer, in contrast, does not depend upon the correlativity thesis, which I reject, but
upon the pragmatic claim that human rights can only play the role that they are meant to play in
political argument if their content is such as to make conﬂicts between them relatively rare.
David Miller
18
valued. It is also possible that a border might run across the traditional pathway
that is followed by those who embrace such a way of life. Members of the Sami
people of northern Scandinavia, for example, have to cross the borders between
Norway, Sweden, and Russia as they follow the annual migration route of their
reindeer herds. This would give those involved a contingent reason to demand
a right to cross the border in question, but the very contingency of the case—
the fact that it appeals to a culturally speciﬁc way of life—shows that a universal
human right to immigrate could not be justiﬁed on this basis.
The second aspect seems much more promising. Most people who move
across borders do so because of features of their new place of residence that
were not available in the old. Many of these migrations, however, will best be
understood in terms of personal preferences rather than vital interests. Rather
than there being some essential interest that could not be satisﬁed in the
original country of residence, the reason for moving is that the new country
offers an opportunity not available before (which might take the form of
satisfying an essential interest in a preferred way—for example moving to a
better job).
For some people, on the other hand, migration may well be only the way
to satisfy an essential interest even at minimal level: this is especially likely
in cases where the migration is from a very poor country to a much richer
one in which adequate food, medical care, and so on are available. Does this
provide the basis for a human right to migrate? Notice that the argument in
this form has become instrumental in character. It is not claimed that the
migration in and of itself is necessary if the essential interests in question are
to be fulﬁlled. The claim is rather that, given the prevailing circumstances,
the only way in which rights that are already agreed to be genuine human
rights—to food and medical care—can be realized is by recognizing an
additional right, the right to migrate, whose exercise will allow those primary
rights to be fulﬁlled. As such, it is vulnerable to the observation that
there are other ways in which the primary rights can be secured—adequate
food and medical care might become available in the original country,
through aid in the short term and economic development in the longer
term. Given these alternatives, to establish migration as a human right one
would ﬁrst have to apply the compatibility test, asking which way of realizing
the primary rights involved least interference with the other rights of
those who would bear the corresponding obligations (to admit migrants and
to supply development aid respectively).
If the argument for a human right to migrate is to be more than merely
instrumental, it needs to prove that there are essential interests that cannot be
fulﬁlled except by establishing such a right. Oberman tries to show this by
claiming that we have a basic interest in being “free to access the full range of
existing life options,” and he uses several examples to show how these life
Is There a Human Right to Immigrate?
19
options may not be accessible in the state in which a person currently lives.
These include: falling in love with a person who resides in another country;
wanting to practice a religion that does not have adherents in the place where
one lives; and having political aims that require travel abroad for research or to
engage in political discussion.19
(To make these examples watertight, we need
to assume that there is some reason why such interests cannot be satisﬁed
without migration—some reason why the loved one cannot move, etc.—but
let’s grant that this condition is met.)
Notice, however, two things about these examples. One is that they depend
upon the subjectively strong interests of particular persons, not on the essential
interests of human beings as such. Or rather, to put the point more
exactly, interests that may in themselves be universal here take a form that
is speciﬁc to one person. We all share a basic interest in having the opportunity
to form a long-term loving relationship with another human being, but
only I, perhaps, have an interest in forming such a relationship with Amélie
speciﬁcally. Clearly the conditions that are required to realize the aggregate set
of such speciﬁc interests are much more demanding than those needed to
realize the shared general interest. Can a human right be such as to fulﬁll
these demanding conditions? Consider by way of analogy the human right
to food, and consider the position of someone in whom that basic interest
takes the form of a passion for top-quality raw ﬁsh. Are we to say that the
human right to food must be understood in such a way as to include the
conditions that will make it possible for this person to obtain high-class
sushi? Suppose highly restrictive legislation to preserve ﬁsh stocks is introduced,
pushing the price of raw ﬁsh beyond the person’s means. Has his
human right to food been violated?
The answer to these rhetorical questions is, I assume, obvious. The human
right to food is the right to have access to an adequate quantity of nourishing
food, regardless of any preferences the right-holder may have for particular
types of food. It can be satisﬁed by many different combinations of foodstuffs.
The right is based on generic interests, not speciﬁc ones. So in what way are
the rights that are generated by our interests in being able to form loving
relationships, or to practice a religion, different? There is clearly one relevant
difference here: potential partners and religions are not substitutable in the
way that foodstuffs are. I may prefer blueﬁn tuna to hake, but that is just a
strong preference, whereas if I cannot cohabit with Amélie or participate in
Sutrayaˉna practices in Tibet, that is an absolute loss—there is no alternative
that is merely a less good version of the same thing. The interest that we have
is an interest in being able to form a relationship with the particular person
19
Kieran Oberman, “Immigration as a Human Right,” this volume.
David Miller
20
whom we love, or to participate in the religion whose tenets we have come to
believe. Such interests are not satisﬁed merely by the state providing us with
an approved list of marriage partners or state-sanctioned religions. The rights
we have to form relationships or practice religion demand more than that.
Notice, however, that while they prohibit the state from deliberately imposing
obstacles that would prevent us from exercising these rights, they do not
require states to take positive steps to make the corresponding opportunities
available.20
Suppose that a small religious sect holds its weekly services in
London. A potential adherent who is dependent on a low-wage job in Glasgow
may ﬁnd it impossible to attend. Unfortunate though this is, it is not a
violation of the human right to freedom of religion. A person so placed has
to search for another way to pursue her underlying interest in faith.
It is also worth noting here that the speciﬁc interests that are being cited
in defense of a human right to migrate are interests that require the cooperation
of others to fulﬁll, so they are anyway vulnerable to refusal on the part
of these others. Amélie may decline to have me, and the Tibetan monastery
whose teaching path I wish to follow may be unwilling to take me in. We
would be inclined to say that they have the right to refuse. But would we say
that so conﬁdently if it were really the case that human beings were so made
that they could not live minimally decent lives unless they were able to form
relationships with just one identiﬁable other, or to engage in one speciﬁc
religion? If human beings were like that, in general, wouldn’t we say that
there was an obligation to associate with them when they regarded this as
essential unless doing so came at such high cost that the associate’s own
decent life was put at risk?
It might be said in reply here that there is a big difference between my
hoped-for relationship with Amélie being blocked by Amélie’s contrary inclinations,
or in the other case by the preference of Tibetan monks not to have to
cope with an ignorant Westerner, and these relationships being prevented by
the border controls of a state. There is indeed a difference, but I think it resides
in the fact that whereas the mere wishes of Amélie or the monks are sufﬁcient
by themselves to exclude me, the state cannot prevent me from immigrating
on a mere whim—it must have solid grounds for refusing me entry. Which
grounds should count is a matter to be addressed later. For the moment, the
conclusion that I wish to draw is that the direct human rights argument
cannot justify a right to migrate. So long as the state in which I reside provides
20
Just how far a state must go by way of providing opportunities in order to protect the right to
freedom of religion is a difﬁcult and disputed question. I have addressed some aspects of the
question, with respect to liberal states, in “Liberalism, Equal Opportunities and Cultural
Commitments” in Paul Kelly (ed.), Multiculturalism Reconsidered (Cambridge: Polity Press, 2002),
pp. 45–61, reprinted in David Miller, Justice for Earthlings: Essays in Political Philosophy (Cambridge:
Cambridge University Press, 2013), pp. 93–114.
Is There a Human Right to Immigrate?
21
a range of opportunities that is adequate to meet my generic human interests,
the fact that I may also have speciﬁc interests that cannot be satisﬁed unless
I reside in another country gives me only a reason, not a full-blown right, to
move there.
But what if the range of opportunities available to me where I am currently
living is not adequate? Here we encounter the instrumental argument in favor
of the right to migrate. For many people, clearly, moving across borders may
provide the only chance they have of living a minimally decent life. By
acknowledging the right to migrate, we bring it about that one obstacle at
least to fulﬁlling other human rights, such as the right to subsistence and the
right to freedom of conscience, is removed. But this argument, although valid,
is limited in a number of ways. First, it holds only as long as we assume that
the other human rights that provide the conditions for a minimally decent life
cannot be secured without migration—that is, we rule out the possibility of
transforming conditions in the originating society so that decency is achieved.
Second, we have to be alive to the possibility that migration may provide the
route to a decent life for some people while making conditions worse still for
those left behind. This is a difﬁcult empirical issue that essentially revolves
around the question of whether the so-called brain drain effect is real and, if it
is, whether it is adequately compensated for by remittances and other beneﬁts
ﬂowing back to the originating country as a result of migration.21
Third, the
instrumental argument cannot be used to justify migration between societies
all of whom already provide their members with an adequate range of opportunities,
and in the case of those that don’t, it justiﬁes only a more limited
right to move to some society that does provide that range. So a world in which
Canada, say, opened its doors to everyone who wanted to move from societies
that because of poverty and/or political repression failed the decency test, but
in which everywhere else kept them shut, would satisfy the instrumental
argument without recognizing a human right to migrate as I have deﬁned it.
In reply to this it might be said that other human rights cannot be properly
guaranteed without an unrestricted right to migrate. Relying on the willingness
of Canada to take in all of those suffering from the effects of global
poverty is not good enough. Clearly my example is not intended to be
realistic, but a system of managed migration in which receiving states cooperated
to issue immigration permits, valid only for speciﬁed countries, to those
21
For analysis and evidence, see Devesh Kapur and John McHale, Give Us Your Best and Brightest:
The Global Hunt for Talent and its Impact on the Developing World (Washington, DC: Center for
Global Development, 2005); R. Faini, “Migration, Remittances and Growth” in George J. Borjas and
Jeff Crisp (eds.), Poverty, International Migration and Asylum (Basingstoke: Palgrave Macmillan,
2005). For a critical discussion of appeals to the brain drain phenomenon in debates about
immigration, see Kieran Oberman, “Can Brain Drain Justify Immigration Restrictions?,” Ethics
123:3 (2013), 427–55. See also Ayelet Shachar’s chapter and Anna Stilz’s chapter in this volume.
David Miller
22
who qualiﬁed for them on human rights grounds might be. Because migration
ﬂows would be controlled under such a system, it could plausibly be argued
that it would do a better job than a free-for-all in ensuring that people who
currently lacked the opportunity for a decent life were provided one—for
example, migrants could be directed to the societies with the biggest labor
shortages.22
2.3 The Cantilever Strategy
So much for the instrumental strategy for justifying the human right to
immigrate. We are left with what I have called the cantilever strategy, which
tries to show that, given the human rights we already recognize, it is inconsistent
not to recognize this one. The most likely version of this strategy begins
with domestic freedom of movement, which as we saw was a right included in
the original UN Declaration.23
As the cantilever argument is often expressed,
since we would regard it as an unacceptable breach of human rights if a federal
union like the U.S. or Australia were to prevent people from moving across the
boundaries from one constituent state to another (say from Washington to
Oregon), why is it acceptable to prevent them moving across the national
boundary that separates, say, Washington State from British Columbia?24
To evaluate this, it is worth examining why domestic freedom of movement
can qualify as a human right. Note to begin with that the right involved is
actually quite limited in scope, in the sense that there are many laws concerning
property, trafﬁc regulation, and so forth that signiﬁcantly reduce the
portion of domestic space over which a randomly chosen person is free to
move.25
Moreover it is taken for granted, in the ofﬁcial Declarations and
elsewhere, that further reductions can be justiﬁed on grounds of public
22
Might there then be a human right to have such a managed migration system in place? No,
because there are a number of different ways in which the human rights of people currently living
in very poor or oppressive societies might be safeguarded, and even if it could be shown that such a
system was likely to be the most effective of these, one cannot claim a human right to everything
that is most conducive to the human rights one already has. I discuss this issue in greater detail in
“Border Regimes and Human Rights,” Law and Ethics of Human Rights 7:1 (2013), 1–23.
23
Here is Carens deploying the cantilever strategy: “If it is so important for people to have the
right to move freely within a state, is it not equally important for them to have the right to move
across state borders? Every reason why one might want to move within a state may also be a reason
for moving between states . . . . The radical disjuncture that treats freedom of movement within the
state as a moral imperative and freedom of movement across state borders as merely a matter of
political discretion makes no sense from a perspective that takes seriously the freedom and equality
of all individuals” (Carens, “Migration and Morality,” pp. 27–8), cf. Carens, The Ethics of
Immigration, p. 239.
24
A different way of resisting the cantilever strategy is developed in Michael Blake,
“Immigration” in R. G. Frey and Christopher Heath Wellman (eds.), A Companion to Applied
Ethics (Oxford: Blackwell, 2003), pp. 228–9.
25
See on this Nickel, Making Sense of Human Rights, p. 134.
Is There a Human Right to Immigrate?
23
order, health, and so forth. On the other hand, for reasons of efﬁciency, it is
obviously beneﬁcial if people are allowed to move domestically in search of
work, affordable housing, and the like, so states have little incentive to use
coercive measures to reduce the scope of freedom of movement still further
under normal circumstances. Moreover they have policy instruments available
that allow them to affect the incentives that people might have for moving.
Negatively, a predominantly national system of taxation and welfare provision
means that there is not much incentive to move in order to reduce one’s tax
burden or obtain a higher standard of healthcare, for instance. Positively, states
can create employment opportunities to counteract migration pressures by
siting government ofﬁces and other public services in areas that are in danger
of losing jobs. They control both ends of the migration route, so to speak, so
they can inﬂuence the relative desirability of living at either end.
In the light of this, one might wonder why the right to domestic freedom of
movement ever comes under threat, and why therefore it should be necessary
to include it in the Declarations and Covenants. The answer, I think, is that for
political reasons a state may wish to target a particular group of people by
restricting their movement. Under the apartheid regime in South Africa,
geographical separation of blacks and whites was used to prevent racial mixing,
give whites an advantage in the labor market, and provide blacks with
much poorer quality social services. Further back in history, Jewish ghettos
were created within European cities that not only enforced religious segregation
but also exposed the conﬁned group to economic exploitation and social
stigmatization.26
Discrimination of this kind is likely to harm the essential
interests of the targeted group and put others of their human rights at risk.
Restrictions on movement may also be placed on political dissenters, to
prevent them associating with like-minded others and spreading their message
more widely. In this case it is rights of political assembly and free speech
that are put in jeopardy. To prevent such policies being enacted, we need a
human right to free movement. It gets its value not just from the inherent
value of being able to move around in physical space, which by itself might
only justify a right of quite limited scope, but from the way it helps support
other rights such as those I have just mentioned. Its main purpose is to
prevent restrictions of movement being detrimentally placed on some people
that are not placed on others.
Suppose now we look at international freedom of movement through the
same set of spectacles. Although it may be argued that the economic and other
beneﬁts of free movement accrue here much as they do in the domestic case,
fewer instruments are available to states to manage the potential ﬂows of
26
See, for example, the account of the Venetian ghettos in Richard Sennett, Flesh and Stone: The
Body and the City in Western Civilization (London: Penguin, 2002), ch. 7.
David Miller
24
people without enforcing border controls. They are able to make their own
societies more or less attractive for incoming people to join to some extent,
though that extent is limited, at least in democratic societies, by legal norms
that require the equal treatment of all residents, and (justiﬁable) pressures to
admit immigrants to full citizenship status in a fairly short space of time. They
cannot control what goes on in the places from which the immigrants are
coming. Since tax and welfare regimes vary considerably, there may be strong
incentives to move even for people whose essential interests are not being
harmed by staying where they are. One can of course imagine favorable
circumstances in which relatively few people wished to migrate and/or similar
numbers of people wished to move in and out of each particular state, and
then there would be little cost to states in recognizing a human right to
immigrate. But if the right is to be justiﬁed, it has to be robust even under
unfavorable circumstances. “Unfavorable circumstances” in this sense prevail
in much of the world today.
So far I have suggested that states can have legitimate grounds for opposing
an international right to free movement that they do not have in the domestic
case. The other side of the coin is that restrictions on international movement,
unlike restrictions on domestic movement, are not targeted at speciﬁc groups
with the aim of disadvantaging them in ways that put their human rights at
risk. The immigration policies pursued by states are of course discriminatory in
that they typically privilege particular categories of immigrants, and in some
instances do so on indefensible grounds (as in the case of the infamous “White
Australia” policy). But even in the worst cases the excluded groups are not
made vulnerable in the way that targeted insiders are. Responsibility for
protecting their human rights rests primarily with the states that they are
seeking to leave, and in some cases the rights they already enjoy may be as
valuable as the rights they would gain if they were permitted to enter.
Consider political rights, for example. I argued above that the right of
domestic free movement may be essential to support the right to associate
politically with others and communicate one’s views to a wide audience.
Someone who is prevented from immigrating to society S cannot exercise
these rights vis-à-vis the citizens of S, but so long as human rights are recognized
in her home society she can do so vis-à-vis her fellow citizens. Do
political rights include the right to associate and communicate with anyone?
Oberman asserts that they do: “political life is not fully free if people are
prevented from meeting, organizing, and protesting as they wish,” which he
takes to include engaging in these activities anywhere in the world as may
be felt necessary.27
If we lived under a world government, that might be true.
27
Oberman, “Immigration as a Human Right,” this volume.
Is There a Human Right to Immigrate?
25
But since we do not, there is a crucial difference between interacting with
fellow-citizens, with whom together we are responsible for controlling the
massive apparatus of the modern state, and interacting with people elsewhere
with whom one may share aims and interests.28
As usual, the issue here is not
what is most desirable: it may be desirable that, as Oberman suggests, he can
for instance travel to and stay in Sierra Leone in order to investigate the effects
of British government policies in that country. The issue is what can be
claimed as a human right. If I am correct in saying that the right to freedom
of movement qualiﬁes as a human right in part because of the way in which it
supports other rights such as freedom of speech and assembly, then we need
to settle how far these latter rights extend before we can decide how widely or
narrowly the human right to free movement should be construed. Once we
understand how political rights connect to essential human interests, we will
not be inclined to interpret them so widely.
I have been pointing to disanalogies between domestic and international
free movement in order to resist the cantilevering strategy used to support a
human right to immigrate. By way of conclusion, let us brieﬂy contemplate
the nightmare scenario as presented by defenders of that right, in which
Washington State does indeed control its border with Oregon in the same
way as it does with BC.29
That would undoubtedly be a huge inconvenience to
all those who had become used to crossing that border freely, and for example
had arranged to live in one state and work in the other. But that is an effect of
the status quo ante being one of free movement, which we should therefore
discount for purposes of evaluating the arrangement itself. Why would we be
disturbed by the border closing once people had adjusted to it? If my analysis
above is correct, we would be concerned that the closure was being used for
discriminatory purposes (for example, to prevent Mexican immigrants who
had made it as far as Oregon from moving farther north). We would be worried
if, say, presidential candidates were being prevented by the border controls
from addressing public meetings in Washington State. There might be other
grounds for concern. But if, for example, these restrictions were simply used to
limit the number of tourists taking vacations in the state, how concerned
would we be? We assert the right of domestic free movement in its standard
form because of an entirely reasonable fear that states may otherwise be
tempted to impose restrictions on movement unjustiﬁably, violating other
28
See here Michael Blake and Mathias Risse, “Immigration and the Original Ownership of the
Earth,” Notre Dame Journal of Law, Ethics and Public Policy 23 (2009), 133–65 at 147–8.
29
Grifﬁn contemplates another hypothetical case in which restrictions on domestic freedom of
movement do not appear to amount to a human rights violation in On Human Rights, pp. 195–6. In
his example, Brazil requires new immigrants to settle in the interior of the country rather than in
Rio. See also Wellman’s discussion of internal freedom of movement, and his distinction between a
human right and a liberal right, in his contribution to this volume.
David Miller
26
rights in the process, not because we think that we have an essential interest in
being able to move just anywhere, even within national boundaries.
2.4 Reasons to Control Immigration
I have argued, against the cantilever strategy, that the oft-cited analogy
between the domestic right of free movement and the putative corresponding
international right does not hold. On the one hand, states have policy instruments
at their disposal that they can use to control internal migration noncoercively
that they do not possess in the international case. On the other
hand, allowing states to prevent (rather than merely discourage) people from
moving internally would give them a weapon with which to oppress minority
groups or dissident individuals—and again there is no international equivalent
to this.30
Still, to complete the argument against a human right to
immigrate, I need to show that states do indeed have good reason to control
inward movement across their borders, so that granting such a right would
potentially have signiﬁcant costs. Let me draw attention to three considerations
that, depending on the case, may provide such a reason.
1) Overall numbers. Unless counterbalanced by emigration, immigration
will obviously increase the number of people within the state’s jurisdiction.
This will matter most immediately when the state has explicitly adopted a
population policy that aims to cap that number, in the extreme case by
making it illegal for a family to raise more than a speciﬁed number of children.
Even in the absence of such a policy, however, the state is likely to have set
targets for employment, for house-building, for the supply of health services,
and so forth—perhaps in the future for overall levels of greenhouse gas
emissions—which are dependent on the total number of people who fall
under its jurisdiction. The point here is not that its interest will always be to
hold this number below a ﬁxed ceiling; clearly states have often wanted to
encourage immigration for economic and other reasons. The interest is rather
in being able to control the number—to increase, diminish, or maintain it as
other policy goals require.
2) Cultural shifts. Whereas migration within a modern state will only
change the prevailing culture in marginal ways, immigration from outside
may change it more radically, and the receiving state and its citizens may have
30
It is possible to imagine a number of states colluding to oppress an unpopular minority group,
and using immigration controls to do so, but I cannot think of any real examples of this
phenomenon. The expulsion of Roma by a number of European countries at different historical
moments—most recently by France in 2009–10—has been suggested as a relevant case, but it is
really a different phenomenon: it does not involve coordinated action between states, while on the
other hand the ethical issues raised by expulsion are different from those raised by refusing entry.
Is There a Human Right to Immigrate?
27
an interest in preventing this. This may be because they do not want to see
existing cultural divisions in the society deepening further, or just because
they are attached to their inherited culture. Since this claim about the signiﬁcance
of culture is often misunderstood and/or dismissed out of hand, it is
worth elaborating a little more fully.
First, it is often pointed out that existing liberal democracies are all to a
greater or lesser extent multicultural, and immigration does nothing to alter
that fact.31
Even if a majority of citizens hanker after a culturally homogenous
society, that particular horse has bolted so far away as to be irretrievable. But
although complete cultural homogeneity is unachievable even if it was
believed to be desirable, this does not exclude some degree of cultural convergence
among people living in multicultural societies—convergence, for
example, in language use, in political values, and in norms of socially acceptable
behavior. Such convergence can be valued both for instrumental
reasons—it allows people to interact with less friction, it helps to generate
trust, which in turn supports active democracy, and so forth—and also intrinsically:
people simply feel more at home when they live in a cultural milieu
that they recognize as their own. Bringing the necessary cultural integration
about, however, takes time and is not costless; in general it will be easier to
achieve when the rate of immigration is steady and relatively low, so that
integration mechanisms—language classes for new immigrants, and so forth—
can be put in place.
Second, it is often said, correctly, that societal cultures are always in ﬂux,
and that preventing immigration in order to “freeze” a culture at a particular
moment of time is therefore absurd. But from the point of view of the people
whose culture it is, it makes a difference whether the sources of change are
internal or external. Sometimes, of course, people may welcome the introduction
of new elements of culture from the outside, but this is different from
having changes forced upon you by external factors that you cannot control.
The point I am making here is not about the actual effects of immigration
over the last couple of generations, but about possible effects of institutionalizing
an unlimited right to immigrate. Even authors who are favorably
disposed towards open-borders policies, such as Dummett and Carens, recognize
the normative relevance of claims about culture.32
Dummett, for
example, acknowledges that all nations have the right not to be “submerged”
31
This criticism has been made not only by open borders advocates but by some of those who
regard immigration controls as justiﬁed, including Michael Blake in “Immigration,” pp. 232–4 and
Ryan Pevnick, Immigration and the Constraints of Justice (Cambridge: Cambridge University Press,
2011), ch. 6, both of whom also contend that invoking culture as a ground for restrictions risks
demeaning current citizens who do not form part of the majority culture.
32
See Dummett, On Immigration and Refugees, esp. pp. 15–21; Carens, “Migration and Morality,”
pp. 36–40.
David Miller
28
by invading cultures, and spends some pages explaining the importance to
people of having a native land whose culture is such that they can feel it to be
uniquely theirs. This, as was noted earlier, explains why for Dummett there
cannot be an unqualiﬁed right to migrate. But while complete submergence is
unlikely to occur for the reasons that he gives, citizens may still have an
interest in resisting externally generated cultural change, and retaining control
over immigration is one of the levers that allows them to do this.
3) The composition of the citizen body.33
If we assume that immigrants
will in due course be able to apply for full citizenship rights, then their
admission will change not just the size, but to a greater or lesser extent the
political complexion, of the citizen body. (Again there is a contrast with
internal migration, whose political effects are only localized.34
) This will
matter most in democratic systems that are evenly balanced between, say,
rival ethnic or religious groups. Even if one thinks that the membership of any
demos is ultimately an arbitrary matter,35
an established demos may still have
the right to determine its own future membership, so long as it does so in a
way that is consistent with recognition of the basic rights of those who will be
affected by its decisions.36
This seems to be an essential part of what it means
to be self-determining: if a democratic body is entitled to take decisions on
policies whose impact will be felt in decades to come, it is also entitled to resist
changes in its own composition that might have the effect of reversing these
policies (it cannot of course guarantee that the policies will not be changed,
since successors may have different ideas, but it can legitimately try to make
this less likely to happen).
2.5 Conclusion
In this chapter, I have been asking whether there is a human right to immigrate
that would make the border restrictions that we see everywhere in the
world today morally problematic. I have concluded that there is no such right.
33
This aspect is also stressed in Christopher Heath Wellman, “Immigration and Freedom of
Association,” Ethics 119 (2008), 109–41, esp. 114–16 and in Christopher Heath Wellman and
Phillip Cole, Debating the Ethics of Immigration: Is There a Right to Exclude? (Oxford: Oxford
University Press, 2011), pp. 38–41.
34
This is not strictly true, if national elections are held in local constituencies. It would be
possible to invent a case in which movements of voters between constituencies determined the
outcome of a closely fought election. But the point is that if the overall composition of the
electorate remains the same, then the political impact of internal migration will only be marginal.
35
As I do not: see David Miller, “Democracy’s Domain,” Philosophy and Public Affairs 37 (2009),
203–28, for thoughts about the principles that should guide the creation or alteration of a demos.
36
The qualifying clause is needed to block the possibility that a citizen body might decide to
change its composition by expelling a subset of its members, or denying admission to the offspring
of existing members as they reached voting age.
Is There a Human Right to Immigrate?
29
At the same time, existing border regimes do raise serious human rights issues,
some of which I have discussed in detail elsewhere.37
These have primarily to
do with the way that immigrants, and especially refugees, are treated when
they approach the state asking to be let in. A number of procedural safeguards
must be put in place to ensure that human rights are not violated, either
directly by the receiving state, or indirectly by sending immigrants to places
where their rights are forfeit. There are also human rights questions to be
asked about the criteria used to select immigrants who do not qualify as
asylum seekers, although the answers to these are less obvious. So my view
is not that human rights have no place in discussions of immigration policy—
quite the reverse. But these discussions get off on the wrong foot if they
assume, openly or tacitly, that there is a general right to free movement that
all border controls violate. By making that assumption, we rule out the very
idea of a just immigration policy (other than a free-for-all), since a necessary
condition of such a policy is that it should be human rights compliant. If the
argument offered here is correct, no such assumption should be made.38
References
Blake, Michael, “Immigration” in R. G. Frey and Christopher Heath Wellman (eds.),
A Companion to Applied Ethics (Oxford: Blackwell, 2003).
Blake, Michael and Mathias Risse, “Immigration and the Original Ownership of the
Earth,” Notre Dame Journal of Law, Ethics and Public Policy 23 (2009), 133–65.
Brownlie, Ian and Guy S. Goodwin-Gill (eds.), Basic Documents on Human Rights, 5th
edition (Oxford: Oxford University Press, 2006).
Buchanan, Allen, Justice, Legitimacy and Self-Determination: Moral Foundations for International
Law (Oxford: Oxford University Press, 2004).
Carens, Joseph H. “Migration and Morality: a liberal egalitarian perspective” in Brian Barry
and Robert E. Goodin (eds.), Free Movement: Ethical Issues in the Transnational Migration
of People and of Money (Hemel Hempstead: Harvester Wheatsheaf, 1992), pp. 25–47.
Carens, Joseph H. “A Reply to Meilaender: Reconsidering Open Borders,” International
Migration Review 33 (1999), 1082–97.
Carens, Joseph H. “The Rights of Irregular Migrants,” Ethics and International Affairs 22
(2008), 163–86.
Carens, Joseph H, The Ethics of Immigration (Oxford: Oxford University Press, 2013).
37
See Miller, “Border Regimes and Human Rights.”
38
This chapter was written for the conference on “Migration in Legal and Political Theory:
Remaining Challenges,” University of Cambridge, 28–9 October 2011. It was also presented to the
COMPAS Fall 2011 conference, Ohio State University, 20–1 October 2011 and to the Department
of Politics, Stockholm University on 3 November 2011. I am very grateful for the suggestions made
at these meetings, especially by my commentator at Cambridge Zoﬁa Stemplowska, and for incisive
written comments by Sarah Fine, Margaret Moore, and Lea Ypi which have helped to improve the
original version.
David Miller
30
Christiano, Thomas, “An Instrumental Argument for a Human Right to Democracy,”
Philosophy and Public Affairs 39 (2011), 142–76.
Cole, Phillip, Philosophies of Exclusion: Liberal Political Theory and Immigration (Edinburgh:
Edinburgh University Press, 2000).
Dummett, Ann, “The Transnational Migration of People Seen from within a Natural
Law Perspective” in Barry and Goodin (eds.), Free Movement: Ethical Issues in the
Transnational Migration of People and of Money (Hemel Hempstead: Harvester Wheatsheaf,
1992), pp. 169–80.
Dummett, Michael, On Immigration and Refugees (London: Routledge, 2001).
Faini, Riccardo, “Migration, Remittances and Growth” in George J. Borjas and Jeff Crisp
(eds.), Poverty, International Migration and Asylum (Basingstoke: Palgrave Macmillan,
2005), pp. 171–87.
Gilabert, Pablo, “Feasibility and Socialism,” Journal of Political Philosophy 19 (2011), 52–63.
Gilabert, Pablo and Holly Lawford-Smith, “Political Feasibility: A Conceptual Exploration,”
Political Studies 60 (2012), 809–25.
Grifﬁn, James, On Human Rights (Oxford: Oxford University Press, 2008).
Grifﬁn, James, “Personhood versus Human Needs as Grounds for Human Rights” in
Roger Crisp (ed.), Grifﬁn on Human Rights (Oxford: Oxford University Press, 2014).
Kapur, Devesh and John McHale, Give Us Your Best and Brightest: The Global Hunt for
Talent and its Impact on the Developing World (Washington, DC: Center for Global
Development, 2005).
Miller, David, “Liberalism, Equal Opportunities and Cultural Commitments” in Paul
Kelly (ed.), Multiculturalism Reconsidered (Cambridge: Polity Press, 2002), pp. 45–61,
reprinted in David Miller, Justice for Earthlings: Essays in Political Philosophy
(Cambridge: Cambridge University Press, 2013), pp. 93–114.
Miller, David, National Responsibility and Global Justice (Oxford: Oxford University Press,
2007).
Miller, David, “Democracy’s Domain,” Philosophy and Public Affairs 37 (2009), 203–28.
Miller, David, “Grounding Human Rights,” Critical Review of International Social and
Political Philosophy 15 (2012), 407–27.
Miller, David, “Border Regimes and Human Rights,” Law and Ethics of Human Rights 7:1
(2013), 1–23.
Miller, David, “Personhood versus Human Needs as Grounds for Human Rights” in Roger
Crisp (ed.), Grifﬁn on Human Rights (Oxford: Oxford University Press, 2014), pp. 152–69.
Nickel, James, Making Sense of Human Rights, 2nd edn (Oxford: Blackwell, 2007).
Oberman, Kieran, “Can Brain Drain Justify Immigration Restrictions?,” Ethics 123:3
(2013), 427–55.
Pevnick, Ryan, Immigration and the Constraints of Justice (Cambridge: Cambridge
University Press, 2011).
Sennett, Richard, Flesh and Stone: The Body and the City in Western Civilization (London:
Penguin, 2002).
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(2008), 109–41.
Wellman, Christopher Heath and Phillip Cole, Debating the Ethics of Immigration: Is
There a Right to Exclude? (Oxford: Oxford University Press, 2011).
Is There a Human Right to Immigrate?
31
3
Immigration as a Human Right
Kieran Oberman
Immigration restrictions curtail freedom. They prevent people from going
where they want to go, seeing whom they wish to see and taking jobs they
wish to take. When repressive states enact such restrictions internally, they
face condemnation by the international community. Yet the legitimacy of
immigration restrictions, which are enforced by almost all states, is commonly
taken for granted.
This chapter argues that people have a human right to immigrate to
other states. People have essential interests in being able to make important
personal decisions and engage in politics without state restrictions on the
personal and political options available to them. It is these interests that
other human rights, such as the human rights to internal freedom of movement,
freedom of association, and freedom of occupational choice, protect.
Commitment to these already recognized human rights thus requires commitment
to the human right to immigrate, for without this further right the
underlying interests are not sufﬁciently protected.1
1
While a number of authors have suggested that immigration restrictions are morally
inconsistent with conventional human rights, the idea of a human right to immigrate has not
been sufﬁciently developed or defended. This chapter addresses that shortfall in the literature,
offering an account of what the right does (and does not) entail and the fundamental interests
underlying it. For these related arguments see Steven Burr, “Immigration and the First
Amendment,” California Law Review 73 (1985), 1889–1928; Joseph H. Carens, The Ethics of
Immigration (Oxford: Oxford University Press, 2013), pp. 225–87; Phillip Cole, Philosophies of
Exclusion (Edinburgh: Edinburgh University Press, 2000); Robert E. Goodin, “If People Were
Money . . . ” in Brian Barry and Robert E. Goodin (eds.), Free Movement: Ethical Issues in the
Transnational Migration of People and of Money (University Park, PA: Pennsylvania State University
Press, 1992), pp. 6–22; Ann Dummett, “The Transnational Migration of People Seen From within a
Natural Law Tradition” in Brian Barry and Robert E. Goodin (eds.), Free Movement: Ethical Issues in
the Transnational Migration of People and of Money (University Park, PA: Pennsylvania State
University Press, 1992), pp. 169–80; Hillel Steiner, “Hard Borders, Compensation, and Classical
Liberalism” in David Miller and Sohail H. Hashimi (eds.), Boundaries, Autonomy and Justice: Diverse
Ethical Views (Princeton, NJ: Princeton University Press, 2001), pp. 79–88.