The ethics of migration policy dilemmas
‘Dilemmas’ analyses fundamental ethical dilemmas in policy-making on migration and refugee protection. “Political theory of migration” is a growing research field, but so far it has been focused on a small number of issues. In particular, political theorists have treated extensively issues related to immigration claims (e.g. is there a human right to free movement?), membership and citizenship (e.g. critique vs defense of birthright citizenship; the importance of territorial presence as a criterion for membership rights), and to asylum (e.g. what are democratic states’ moral obligations towards refugees?). ‘Dilemmas’ aims to expand the focus of existing normative research by adopting a ‘bottom-up’ approach that identifies specific policy challenges and dilemmas that migration policy-makers and civil society actors in the migration field face but that have not yet been considered by mainstream normative political theorizing. Examples of such policy dilemmas include: the tension between humanitarian protection and border control in maritime rescue operations; the normative dilemmas that arise when balancing different policy goals in the regulation of labour migration; the contested legitimacy of utilitarian criteria (taking into account social and economic concerns) in asylum policy decisions; and the normative dilemmas faced by sending and transit states. ‘Dilemmas’ will also widen the scope of actors from the traditional focus on executive and legislative branches of government to other agents engaging with migration policy, including International Organisations, NGOs and the media.
In addition to providing new research and thinking, Dilemmas aims to facilitate debates with a wide range of policy-makers and civil society actors, to discuss the core ethical dilemmas that arise in migration and refugee policy-making. We plan to organise a series of online debates and seminars/webinars that will bring together researchers, policy-makers, and civil society actors to debate these issues. If you are interested in contributing, please get in touch with one of the project coordinators.
Researchers associated with this project:
‘Dilemmas’ is a joint initiative of the MPC and of the research project “Migration as Morality Politics” [PI Julia Mourão Permoser, Austrian Science Foundation (FWF) Grant V 743-G].
The project is coordinated by Martin Ruhs (MPC/EUI), Julia Permoser (University of Innsbruck), Rainer Bauböck (EUI and Austrian Academy of Sciences) and Lukas Schmid (EUI).
Watch our co-coordinators Julia Mourão Permoser and Rainer Bauböck discuss the project and the dilemmas of search and rescue operations at the Viennese Bruno Kreisky Forum (in German): https://www.youtube.com/watch?v=b8x1CdTdZVk.
The ethics of migration policy dilemmas:
by Rainer Bauböck, Julia Mourão Permoser, Martin Ruhs
This article proposes a new approach to the political theory of migration: the ethics of migration policy dilemmas. The core of this new approach lies in identifying specific policy dilemmas of central relevance to policy makers and other stakeholders in the field, and then submitting these dilemmas to systematic theoretical analysis. We conceptualize policy dilemmas as involving hard choices between competing moral goals and distinguish this kind of dilemma from other types of ethical choices, such as conflicting means, dirty hands, political feasibility, and politics dilemmas. We argue that, besides enlarging the range of questions asked by political theorists of migration, our approach of engaging normatively with hard policy dilemmas can help mitigate the negative political and societal effects of reductionist political positions that seek to negate the existence of competing moral goals. We make the case for a multidisciplinary approach to the normative analysis of hard ethical dilemmas, transcending both explanatory and interpretive analyses in the spirit of an applied normative political theory that aims to be action guiding.
Read the article here.
Should countries restrict labour emigration to other countries where migrants risk being exploited or abused?
11 April, 2022
Abuse and exploitation of migrant workers in Gulf States is common and well-documented, and women domestic workers are at special risk. Sending states—often relatively poorer South Asian states—are limited in the ways that they can protect the rights of their citizens when they are labouring abroad. One strategy that sending states have deployed is the adoption of ‘emigration bans’ or ‘emigration conditions’. Emigration bans restrict citizens from taking up temporary labour market contracts, usually in specific states, but sometimes in general. ‘Emigration conditions’ require would-be migrants to meet specific requirements in order to be permitted, by the sending state, to take up a labour market contract abroad. In this article, I examine whether it is morally permissible for source countries to prohibit migration to countries where they risk being exploited or abused. I examine the reasons states give to justify emigration bans and conditions: the ‘structured vulnerability’ reason; the ‘gendered structured vulnerability’ reason; and the ‘gendered paternalism’ reason. Overall, I agree that the reasons motivating the bans and conditions are good ones—though I offer some criticism of the reasons I describe as ‘gendered paternalism’. But, since there is only limited evidence of the effectiveness of bans and conditions in achieving substantive benefit for labour migrants, and on the contrary evidence of the real harm they can sometimes generate, I argue that, absent positive evidence of success in achieving their objectives, they ought to be rejected in practice even if they are permissible in principle.
12 April, 2022
Patti Tamara Lenard’s highly informative and thought-provoking paper “Restricting emigration for their protection? Exit controls and the protection of (women) migrant workers” is a much-needed addition to the normative literature on gender and migration. She explores therein the ethics of bans on the emigration of migrant workers, particularly women, from South Asian states to Gulf States. Such bans, Lenard explains, have sometimes been enacted in response to abuses of South Asian migrants in “receiving nations” (including, but certainly not limited to, Gulf States). Their stated goal: to pressure “receiving nations” into implementing protections of temporary migrant workers from the “sending nation” that pursues the bans. They are usually enacted in the aftermath of high-profile instances of abuse of migrant workers, examples of which are shared by Lenard.
13 April, 2022
In response to Lenard’s paper, we start by deconstructing the dominant public discourse on the abuse of migrant women that frames the debate on the application of emigration bans or conditions for women to migrate. We complicate that discourse with findings highlighting a more contrasted canvass of women’s labour migration which is not all about labour abuses and includes important benefits. We argue that given the existence of such benefits, the case for exit bans or conditions is questionable. In the second section, the problem of exit controls is situated in the wider context of the restricted gender roles and women’s autonomy in sending countries. This enables us to highlight how an entire corpus of policies and societal norms shape women’s options in a manner that discriminates not only against their mobility rights, but other human and labour rights as well. This leads us to challenge Lenard’s moral justification for exit controls. In the final section, we agree that emigration bans are not effective, but take the argument further by reviewing the effect of exit controls. This allows us to conclude that emigration bans are not so much about controlling migration per se. Instead, they seem to be motivated primarily by the sending country’s will to address politically concerns of a patriarchal nature, which see in women’s emigration a threat to prevailing gender roles and other gendered patterns of social reproduction.
14 April, 2022
Patti Lenard (2021) argues that temporary emigration bans are not inherently morally impermissible; if such bans were to effectively help defend human rights, then we might have good moral reasons to permit those bans. Such bans are, however, unlikely to be morally permissible as a matter of practice; Lenard argues that, under most real-world circumstances, they are likely to do more harm than good. In this paper, I want to offer both some support and some criticism for Lenard’s view. I want to support her assessment of the moral impermissibility of such bans as a matter of practice; indeed, I want to add some weight to that assessment, by providing some additional reasons for this evaluation. I want to criticize, however, Lenard’s defence of the theoretical moral permissibility of such bans. There is, I believe, an asymmetry between the right to exit and the right to enter, such that even temporary and limited violations of the former cannot be justified with the tools Lenard provides.
26 April, 2022
In her paper “Restricting Emigration for Their Protection? Exit controls and the protection of (women) migrant workers”, Patti Lenard raises important, thought-provoking points on common dilemmas faced by migrant origin countries attempting to promote overseas opportunities for their citizens while protecting their rights abroad. This is particularly challenging in sectors, such as domestic work, that are outside the purview of the labour law and enjoy only rudimentary legal protection; and where the isolated nature of the workplace and the absence of informal networks exposes migrant workers to heightened risks.
10 May, 2022
I consider three related objections raised by my respondents. First, they say, I am too prepared to permit the violation of the right to exit; in particular, they argue that even evidence that emigration bans and conditions work would be insufficient to justify constraining the right to exit. Second, they allege, states that offer “protection” reasons for bans and conditions are insincere, and in any case, the importance of protecting human rights abroad is insufficient to permit the violation of the right to exit; in particular, the bans violate the autonomy of women migrants in problematic ways, even if they would result in better protection abroad. Third, they argue, women-specific constraints in particular threaten to undermine rather than further the protection of women’s human rights.
Refugee Protection: “Here” or “There”?
13 June, 2022
Policymakers in states of the Global North are in the privileged position of having a genuine ethical choice concerning whether to devote their resources to providing refugee protection in their territory (e.g. by enabling safe passage of refugees to their borders and offering generous resettlement opportunities) or to prioritise resourcing refugee protection in the Global South. For these policymakers the question ‘Should we protect refugees here or there?’ posed in this global context represents a real, and not merely a notional, ethical challenge. The primary focus on this article is the ethical dilemma confronted by the conscientious policymaker in the Global North concerning where (and how) to support refugee protection. A secondary focus is the ethical dilemma faced by conscientious policymakers in the Global South in relation to the global context and the issues confronted both Northern and Southern policymakers in their distinct regional contexts.
21 June, 2022
We all owe a debt of gratitude to David Owen and Alex Aleinikoff for their thoughtful reflections on the desirability and practicality of proposals and practices that divide the world between refugee hosting states (in the Global South) and refugee protection financing states (in the Global North). Given the way the winds have blown over the last decade, with Northern states assembling numerous measures to contain refugees in the South and to prevent them from accessing their territory, there can be few issues more important to the future of refugee protection. In this response I want to focus on the question of the desirability of proposals for what we might call differentiated responsibility between Northern and Southern states, the part of Aleinikoff and Owen’s discussion that considers whether ‘over there’ approaches might be acceptable from a realistic-utopian perspective.
22 June, 2022
In their paper, Alex Aleinikoff and David Owen frame as a ‘genuine ethical dilemma’ for ‘conscientious policy makers in the Global North’ whether to devote ‘resources’ to refugee protection in their territory or ‘in the Global South’. While we we agree with many of the conclusions in this piece, we argue these conclusions do not go far enough. We argue in particular that accepting that there is a ‘genuine ethical dilemma’ in this context concedes too much ground to the status quo. We open with some observations about the problems this framing entails, and question whether a Global North / Global South heuristic is really useful when discussing obligations to refugees. We suggest instead that focusing on the costs and harms of containment, and denaturalizing the distinction between ‘here’ and ‘there,’ is an important element of improving refugee protection everywhere.
5 September, 2022
The authors present the central question of the paper as ‘a genuine ethical dilemma’: ‘conscientious policymakers’ in the Global North are in the privileged position to decide between doing their share of global refugee protection in their territory (‘here’) or through development aid to countries hosting large numbers of refugees in the Global South (‘there’). In this response, I am going to argue that the way the choice between protection here and there is construed leaves out a third option, an increasingly popular one among policymakers in the Global North, which I call ‘protection elsewhere.’ I will suggest that, as currently posited, the discussion around the here v. there dichotomy is not fully equipped to address the problem of responsibility shirking and the indeterminacy of protection in the framework of non-arrival policies exemplified by ‘protection elsewhere.’ To attend to this problem, I suggest that the here v. there problem could be addressed not only by demanding a greater mix of protection ‘here’ and ‘there,’ but also by putting clear limits on policies that aim to keep refugees away and leave the prospects of protection unspecified.
13 December, 2022
We respond to our critics, focusing on their critiques of the ‘here’ versus ‘there’ distinction. While we agree with much of their commentary, we challenge some of their interpretations of our original argument and defend its central claims and conclusions.
What are the moral dilemmas posed by sea rescue?
28 June, 2022
Search-and-Rescue NGOs in the Mediterranean have been increasingly criminalized. This criminalization has chilled conversation about the ethical dilemmas practitioners face. What, if any, can be the adverse byproducts of rescuing life at sea? In this article, we concentrate on the dilemmas involved in search and rescue (SAR) as rescuers have described them. Our aim is two-fold. The first is to offer a phenomenological account of search-and-rescue dilemmas. The article sheds light on the complexity and nuance of the ethical landscape of maritime rescue, revealing an intricate web of interactions acknowledged by rescuers as posing ethical challenges. The second aim is to offer a conceptual framework for what it is that SAR NGOs are, in fact, doing. We contextualize their actions within the larger terrain of ‘border externalization’, in which states have moved enforcement activities to extraterritorial zones, where human rights law is diluted or inapplicable. We thus argue that the set of norms underlying NGO rescue practices amounts to a strategy of counter-externalization. The ideal here is that a window of opportunity can be created at sea, where human rights or international law protections more broadly apply, but enforcement powers of states are suspended. By utilizing these legal gray zones to the benefit of migrants, rescuers effectively turn extraterritorial zones from spaces of lawlessness into spaces of resistance. The rescue ship thus becomes a ‘floating sanctuary’.
30 June, 2022
Mann and Mourão Permoser probe the ethical dilemmas raised by rescuers as they pursue their seaborne search and rescue strategies. Resisting the ‘chilling effect’ on honest self-inquiry of aggressive anti-SAR criminalization strategies by states, Mann and Mourão Permoser advance a question posed by rescuers themselves: ‘What if any are the adverse byproducts of rescuing lives at sea?’ The ethical conundrum facing SAR activists is not unfamiliar. Real world, non-ideal pragmatism regularly thrusts itself into the calculus of human rights activism, including in the migration context – whether to challenge a negative state decision when the challenge might provoke a worse one, whether to collaborate with sub-optimal reform proposals when the alternative is no reform at all, whether to defy unjust measures when the outcome of that defiance is unpredictable. This response explores some of the further questions thrown up by Mann and Mourão Permoser's paper.
1 July, 2022
How do Search-and-Rescue (SAR) NGOs understand the ethical dilemmas they face while conducting rescue at sea? And how might we conceptualize that rescue within a broader context? Itamar Mann and Julia Mourão Permoser’s article, ‘Floating Sanctuaries: The Ethics of Search and Rescue at Sea’ proffers an illuminating conceptual framework for this ‘ethical landscape,’ and creatively posits that we understand SAR NGOs to function as floating sanctuaries within the larger terrain of border externalization. This response expands on this contribution, exploring questions of innocence and fragility as they relate to sea rescue and sanctuary.
7 September, 2022
The incredibly complex questions that Mann and Mourão Permoser discuss can be approached from innumerable angles. One perspective, which the authors did not, on this occasion, explore, is that of structural injustice. This concept, as introduced into contemporary political theory by Iris Marion Young (2011), refers to injustice caused not by unjust interactions between individuals or groups, but rather by large-scale structural processes which are under no one’s control. In this response, I suggest that there are at least three ways in which the perspective of structural injustice can contribute to a better understanding of the dilemma at hand. First, it helps us appreciate the moral significance of being part of the chain. Second, it helps us see the fact that there is not one, but two commands SAR organisations need to respond to: the urgent ethical command of rescue, and the command of dismantling the unjust structures within which they operate. And third, it helps us reflect on the question what SAR organisations can and should do to contribute to collective efforts to dismantle such unjust structures.
12 September, 2022
In a climate of hostility to NGOs rescuing refugees in the Mediterranean Sea, Itamar Mann and Julia Mourão Permoser’s (2022) article, “Floating Sanctuaries: The Ethics of Search and Rescue at Sea” bravely breaches an unspoken taboo on the activist and academic left when it invites us to consider the potential negative consequences of rescue. This response takes up their invitation by proposing that we situate the ethical dilemmas of rescue in relation to a central tension: between humanitarianism and politics or between, on the one hand, the imperative to save life and, on the other, the open secret that something else, if not something more than life is at stake at the scene of rescue. Pointing to the plethora of interests that rescuers, migrants, merchants and states implicitly invest in the purportedly a- or pre-political ethical “command” to save life, this response explores the predicaments involved in posing the political questions and ambitions at stake in the Mediterranean passage in ethical terms.
11 January, 2023
Search and Rescue operations are at an impasse. In my response to Mann's and Mourão Permoser’s paper, I focus on transparency and the adoption of clear operational standards by SAR NGOs as central elements in responding to states’ current assaults on NGO’s SAR operations, arguing that these are key in demonstrating accountability and safeguarding spaces for humanitarian action.
31 January, 2023
Panel discussion: “Das Dilemma der Seenotrettung” (in German), Bruno Kreisky Forum, Vienna, 31 January 2023.
Regularisation of Irregular Migrants: Justice vs the Rule of Law ?
22 July, 2022
Immigrant legalization policies pose an ethical dilemma between justice and the rule of law. On the one hand, liberal democracies aspire to the principles of individual liberty and equality. Building on liberal ideals of justice, compelling arguments have been made for granting legal status and a path to citizenship to unauthorized migrants by virtue of the social ties they have developed, their contributions to the host society, and their vulnerability to exploitation. On the other hand, legalization poses a challenge to another important value, the rule of law, which requires government to operate within a framework of law in accordance with well-established public norms. Immigrant legalization programmes are said to undermine the rule of law because they reward lawbreaking, allow queue-jumping, and incentivize further unauthorized migration. This article clarifies each horn of the dilemma, focusing on rule of law arguments. We offer a critical reappraisal of immigrant legalization policies by reflecting on the normative meaning of the rule of law and by examining empirical evidence assessing the effects of legalization. Our central contention is that legalization policies can enhance the rule of law. We offer five rule of law arguments in support of legalization, which help to mitigate the dilemma between justice and the rule of law. We conclude by discussing some policy implications of our analysis.
25 July, 2022
We do not disagree with Song and Bloemraad’s account: rule of law and regularisation policies are not inconsistent, and in fact regularisation supports rule of law, properly understood. Our comment therefore is not a direct critique, but a call for deeper investigation into the motivations of the rule of law objections considered in Song and Bloemraad’s account. We argue that the real purpose of these objections is not necessarily to serve as an alternative to the justice-based claims of undocumented immigrants, but as a way to undermine them. On our account, these rule of law objections accomplish this undermining task through the mechanisms of dog whistling, discrediting and distorting, and ostracizing.
25 July, 2022
In their persuasive and closely reasoned article, Song and Bloemraad (2022) argue that rule of law considerations enhance, rather than detract from, the case for legalising the status of unauthorised migrants who have lived for a substantial period of time in the host country. While they focus on the US, their arguments have much wider applicability. I agree with Song and Bloemraad’s conclusions, and I find the argument compelling (though with some reservations that I will register below). In this short response, I query the rule of law rationale for legalisation. Rule of law considerations, I will argue, cut both ways: while they may (in a narrower range of cases) be used to defend legalisation, they can also be used more effectively against it. My conclusion will be that the rule of law is an unstable basis for defending the rights of unauthorised migrants to permanent residence. Justice considerations are more compelling.
6 September, 2022
In their compelling article, Sarah Song and Irene Bloemraad (2022, 34) argue that their various “rule of law arguments for legalization mitigate the dilemma between justice and the rule of law. It is not only principles of justice but also principles of the rule of law that offer support for extending a path to citizenship to unauthorized migrants.” In my response, I offer three critical remarks focusing, in turn, on how for most migrants secure residence rights (or other rights, such as the right to study or work) are more important than citizenship, on questioning the legitimacy of rule of law arguments given constantly shifting immigration laws and policies that are sometimes manifestly unjust by most definitions of justice, and on the possibility of narrowing the gap between justice and rule of law using variegated rights and statuses, prioritising what is possible politically.
19 September, 2022
Song and Bloemraad contribute greatly to the recurrent debate over whether migrant legalisation programs can be justified under the rule of law, even if they are warranted by arguments of justice, equity, and inclusion. I was struck in reviewing their arguments by the relevance today of discussions that led to adoption of a program of legalisation under the 1986 Immigration and Reform Act (IRCA) in the United States. As IRCA is discussed throughout the article, and I was personally involved in the policy debates over legalisation as the Research Director of the U.S. Select Commission on Immigration and Refugee Policy (SCIRP), my commentary on their article will, I hope, shed some new light on this 36-year-old program and the rule of law. In doing so, I also hope that it will be relevant to current and future debates over justice and the rule of law.
21 February, 2023
We are grateful to Amelia Wirts, José Mendoza, Andrea Sangiovanni, Willem Maas, and Susan Martin for their thoughtful engagement with our article. In this short rejoinder, we respond to some of their many excellent points.
Temporary labour migration programmes: global vs domestic justice
27 September, 2022
Temporary Labour Migration Programmes (TLMPs) are controversial because they are caught in a dilemma between global and domestic justice. From a global justice perspective, TLMPs expand opportunities for workers in poor countries to access labour markets of rich countries and they improve the situation of origin countries through remittances. From a domestic justice perspective, TLMPs violate principles of domestic equality because they always afford migrant workers more restricted rights than those enjoyed by citizens and long-term residents of the host country. Although this dilemma cannot be fully resolved, we argue that TLMPs can be morally justified and recommended if they are characterised by ‘fair representation’ in policy design and implementation and also meet certain democratic legitimacy conditions. TLMPs can be justified if they provide triple benefits for destination and origin countries as well as for migrants themselves, yet the relevant benefits can only be achieved cooperatively through transnational governance in which each of the three groups of actors is fairly represented. This conclusion is supported by our interpretation of the democratic principle of including all affected interests. Under such conditions, some rights of temporary migrant workers in host countries can be regarded as a legitimate outcome of negotiations, while others need to be fixed in advance under a democratic principle of equal protection of all subjected to the laws. Democratic legitimacy also requires that migrants enjoy protection and participation rights as citizens of their countries of origin as well as local citizenship in their countries of residence.
6 October, 2022
We see Bauböck and Ruhs’s analysis as an important step forward in the debate on TLMPs, especially because of their focus on democratic legitimacy as a crucial variable to include in the normative assessment of such programmes. However, in response to their thought-provoking proposal, we would like to raise a few critical points, especially concerning the conditions necessary for migration to be considered voluntary. We argue that, in the absence of exit options for migrants to leave their condition of temporary residence in the host country, fair representation is not sufficient to guarantee the voluntary nature of migration. We believe that exit options must include not just the possibility of return to the migrant’s country of origin but also the possibility to stay in the host country. We further contend that the availability of the option to stay is not only an essential condition of voluntariness, but also a crucial element of the democratic credentials of TLMPs. If the option is not guaranteed, migrants do not have enough means of political leverage in TLMP negotiations and enter such negotiations with a diminished status.
24 October, 2022
Bauböck and Ruhs argue that TLMPs can be morally justified. According to their triple win argument, these programmes can be designed in ways that maximise their justice-promoting capacities and eradicate their objectionable features. TLMPs that fulfil these two conditions can lead to a so-called triple win: a situation in which the three parties involved in temporary labour migration all reap its benefits. In a nutshell, the triple win argument claims that TLMPs are morally justified when they (i) benefit the three parties involved, (ii) fulfil the requirements of social justice, and (iii) are democratically legitimate. This short piece will zoom in on the latter element of morally justified TLMPs: democratic legitimacy. I will argue that the triple win argument fails to secure migrant workers’ equal protection by the law. This should cast doubt on the triple win arguments’ capacity to live up to the democratic legitimacy requirements that morally justified TLMPs must satisfy.
9 January, 2023
Bauböck's and Ruhs's notion of ‘fair representation’ captures our attention and is the focus of this commentary, which is organised around three interrelated points. First, we problematise the underlying assumption of the status of the ‘playing field’ presented in the paper, given the current power asymmetries not only among countries but also between capital and labour that condition ultimate ‘fairness’ in TLMP design and implementation. Second, we question the notion of representation, with a special focus on migrant workers, as this continues to be a thorny area. Finally, speaking as practitioners, we focus on the role of social minima for the achievement of fairness and protection of rights, and on the difficulty of realising ‘fair representation’ as depicted by the authors in practice.
17 January, 2023
In this response, I agree that Bauböck's and Ruhs' proposal represents a significant improvement over the status quo, but worry about how the triple benefit route might affect individual temporary migrants, and especially women and their status, in the host society and in the country of origin. Pursuing triple benefits could possibly instrumentalise individual migrants for purposes of economic benefit for both sending and host states, rather than providing them with the rights protection that Bauböck and Ruhs hope to establish. Ultimately, access to citizenship remains essential as the best protection of the catalogue of rights that guarantees that migrants benefit from their migration projects.
6 February, 2023
Can temporary labour migration programmes (TLMPs) contribute to goals of global social justice without undermining receiving states’ commitments to domestic social justice? Can they be beneficial for migrants, receiving and sending states? In our essay, we proposed that the policy dilemmas lurking behind these questions can be addressed through minimum standards of human and democratic rights and fair representation of all three parties in the negotiation and governance of TLMPs. We are very grateful that our critics have all engaged constructively with this idea. All contributions contain helpful summaries of our argument and seem to share our goal of searching for action-guiding principles under real-world conditions. They also raise important points and insights that we are happy to take on board. In the spirit of critical exchange, we focus in this rejoinder on selected objections that we think are particularly important for us to address.
14 February, 2023
Panel discussion: “Das Gastarbeiter Dilemma” (in German), Bruno Kreisky Froum, Vienna, 14 February 2023.