Abstract
There is growing interest among political theorists in the ways in which states select which would-be immigrants to admit and which to exclude. Sahar Akhtar's book
A dominant debate in the ethics of migration has long been the open versus closed borders debate. However, many political theorists are now drawing attention to the ways in which borders are not simply open or closed, but open for some and closed for others. There is a growing literature on the criteria that states use to select among would-be immigrants. This takes us to some of the most pressing and divisive issues in present-day immigration policy: from Trump's Muslim ban (Brock, 2020; Tomalty, 2021) to the growing preference for highly skilled migrants (Shachar, 2016) to language tests that are surreptitiously used to exclude certain groups of would-be immigrants (Hosein, 2016). Sahar Akhtar and Désirée Lim's books are much-needed contributions to this nascent field of research. Both provide an innovative and insightful analysis of some of the most important forms of immigrant selection.
Akhtar's starting point is race and ethnicity in immigration policy. As Akhtar explains, immigration restrictions were very much born out of racism and discrimination. Consider, for example, the United States’ 1882 Chinese Exclusion Act, which barred the entry of Chinese labourers, and the White Australia Policy, which used a language test to exclude non-White would-be immigrants from Australia. Race and ethnicity continue to be intertwined with the politics of migration. Think of, for example, Trump's ban on would-be immigrants from several Muslim-majority countries. Akhtar's book therefore sheds light on a powerful force in the debate on migration.
While race and ethnicity are key drivers of immigration policy, the normative literature on migration has not had much to say about this. There is, however, some discussion in the literature on whether a state's right to exclude necessarily implies that a state is permitted to exclude would-be immigrants on any grounds, including race and ethnicity. Proponents of a state's right to exclude have tried to resist this by providing an account of the wrongs of racial and ethnic selection that is compatible with a state's right to exclude (Blake, 2002; Miller, 2005, 2015). Some have questioned whether this is possible (Fine, 2016). However, both sides of this debate assume that exclusion on the basis of race or ethnicity is always wrong (Akhtar, 2024, p. 4). 1
Akhtar challenges this assumption in her book. Akhtar's intervention is important because, as we will see, in closely examining this assumption, she is able to deal with some difficult and thorny cases of immigration policy. Akhtar develops a highly innovative global ‘antidiscrimination’ approach, of which there are two important components. The first is the idea of a global status. In the same way that we think that groups have domestic social status – for example, marginalised ethnic groups have a vulnerable domestic status – Akhtar argues that we should also think that groups have a
The second component of her ‘antidiscrimination’ approach is the idea that states, like businesses and other associations, have antidiscrimination duties to refrain from contributing to the vulnerable global status of certain groups. These are what she calls primary duties. This is an important part of her argument because, while global status may be a plausible notion, we still need an argument for why states must respond to this. Akhtar (2024, p. 91) argues that various associations within the state are bound by anti-discrimination duties either because they do not have a personal or intimate character or because, despite having such a character, they distribute significant opportunities. For these two same reasons, she argues that states should also be bound by anti-discrimination duties: states do not have a personal character – whatever values or goals fellow citizens share ‘do not require
Akhtar is specifically interested in racial and ethnic criteria. Akhtar (2024) notes that it follows from the antidiscrimination approach ‘that not all racial and ethnic criteria violate the primary duties’. She grants at multiple points in the book that it is not straightforward to determine when the primary duties are violated. Throughout the book, Akhtar focuses on two real-world cases: Israel and Japan. In the case of Israel, Akhtar (2024, p. 122) notes that on the one hand the Law of Return, which grants automatic admission to all Jewish people, protects the vulnerable global status of Jewish people because it ‘bolsters the self-respect of Jewish people’. Yet she concludes that the Law of Return ultimately violates the primary duties because there are other policies that would ‘protect the idea of a place where Jewish people are always welcomed and yet contribute far less to the vulnerability of Palestinians’ (Akhtar, 2024, p. 123). In the case of Japan too she notes that, while the Japanese might have a vulnerable global status due to their dwindling population, the policy of favouring would-be immigrants of Japanese ethnicity would contribute to the vulnerable global status of
The ways in which Akhtar examines cases, such as Israel or Japan, that are sometimes mentioned in passing in the normative literature on migration is very much to be admired. 2 She powerfully demonstrates that not only is normative analysis useful in these cases but also that attending to these difficult cases can yield important insights for the debate on migration more broadly. In the final chapter, she argues that her analysis has important implications for a state's right to exclude. Akhtar develops a reductio of the argument that states should be free to use any immigrant selection criteria, even to wrongfully exclude would-be immigrants on the basis of race or ethnicity. Akhtar explains that one might defend this by appealing to autonomy-based reasons. On this view, states should be free to wrongfully exclude because of its ‘connection to the wider freedom to have a range of choices in membership decisions’ (Akhtar, 2024, p. 185). However, Akhtar points out that wrongfully excluding would-be immigrants on the basis of race or ethnicity would only matter, from an autonomy point of view, if the state defines itself in terms of race or ethnicity, which most would find unacceptable. Thus, Akhtar makes the compelling argument that autonomy concerns do not support a state's right to wrongfully exclude. She explains that the upshot is that ‘external interference in state's membership decisions (at least in relevant cases) is permissible’ (Akhtar, 2024, p. 193).
Akhtar's idea of a global status is rich and novel, and it is especially valuable because it allows us to directly address cases of immigration policy that many shy away from. One interesting point that Akhtar mentions is the variation in status at the global level. She rightly points out that, even in the domestic case, there might also be variations in the status of groups across domestic regions. However, there seems to be much more extensive variation at the global scale, which might complicate the notion of global status. Consider, for example, Trump's Muslim Ban, which Akhtar considers. Not only did it target Muslims, but it also targeted Arabs as most of the countries that were targeted were Arab. What is the global status of Arabs? Akhtar (2024, p. 123) notes that many Arab countries have ‘significant global economic and political power and access to important opportunities in a variety of states’. At the same time, however, Arabs are a marginalised group in many countries in the Global North. It does not seem very clear what we should make of the global status of Arabs, and perhaps of other groups, because of this considerable variation at the global level.
Early in the book, Akhtar uses the cases of Japan and Israel to demonstrate the plausibility of her approach, especially her concept of global status. She explains that it is the concept of global status that can explain why some political theorists seem sympathetic towards Japan's policy of favouring the admission of Japanese descendants or Israel's policy of granting admission to any Jewish person (Akhtar, 2024, p. 82–84). However, as I said, later in the book, Akhtar concludes that once we take the concept of global status seriously, we can see that these policies are not morally justified. Yet, if the concept of global status does not in fact justify these cases, then is it not also true that one reason Akhtar thinks we have for endorsing the idea of a global status – that it is the implicit justification – also goes away?
At some points in the book, Akhtar seems to suggest that antidiscrimination is the main and perhaps only standard against which we evaluate immigrant selection policy. 3 For example, she notes that criteria such as language or history tests that are not inaccessible to a particular group would not violate primary duties, and this would ‘square with the perhaps widely shared intuition that accessible criteria for admission are morally permissible’ (Akhtar, 2024, p. 143). But even if status is an important component of an account of the ethics of immigrant selection, it need not be the only one. For example, using a lottery to select which would-be immigrants to admit might not be wrong on discrimination grounds – it by definition does not distinguish whatsoever between different immigrants – but it may nevertheless be wrong for other reasons. 4 These questions, I believe, highlight the originality, insight, and richness of the analysis that Akhtar provides in her book.
Lim and Akhtar's books complement each other very well. While Akhtar's book primarily focuses on the selection of would-be immigrants directly on the basis of race or ethnicity, Lim explores the indirect ways in which race and ethnicity arise in immigration policy. Even though Akhtar mostly focuses on racial and ethnic criteria in immigration policy, she does note that we ‘are far more likely to come across policies that subtly or implicitly invoke racial or ethnic criteria’ (Akhtar, 2024, p. 109). Akhtar (2024, p. 141) notes that sometimes, as in the case of Trump's ban on would-be immigrants from certain countries, non-identity criteria are clearly being used as proxies for race, ethnicity, or religion and therefore may violate the primary duties. Even selection criteria that are not proxies but that disproportionately disadvantage vulnerable groups could amount to indirect discrimination. Akhtar is careful to draw out the complications and nuances of such cases. Lim's book focuses on these very issues: she provides an original and perceptive account of how race, ethnicity, and gender indirectly arise in immigration policy.
Lim focuses on skill-selective immigration policy. As Lim emphasises throughout the book, skill-selective immigration policy is pervasive. Many countries, including Canada, Australia, and the United Kingdom, have policies that favour the highly skilled and disfavour the low-skilled (Lim, 2023, p. 3). States are increasingly trying to attract the ‘best and brightest’, which comes at the expense of those who do not belong to this category. Moreover, as Lim (2023, p. 8) notes, skill-selective immigration policies are often viewed not only as morally innocuous but also as beneficial for both the receiving society and the would-be immigrants. Lim therefore makes a very important intervention by questioning some unchallenged views about what is fast becoming the preferred method for selecting immigrants.
Lim's contribution is especially valuable as it offers a much-needed comprehensive account of an immigration policy that has captured the attention of many political theorists. For example, Douglas MacKay (2016) argues that skill-selective immigration policies are morally permissible so long as the high-income receiving states are meeting their duty to aid residents of low- and middle-income countries, and Michael Ball-Blakely (2022) maintains that these policies are unjust as they have a harmful effect on citizens of low-socioeconomic status. Lim investigates the many different aspects of skill-selective immigration policy and in doing so provides a full and rich account of this increasingly dominant policy.
Lim's (2023, p. 8) central claim in the book is that skill-selective immigration policy violates social equality. Lim develops an understanding of social equality that does not depend on citizenship status. She defends the view that a flourishing sense of self requires social equality. She draws on Andrea Sangiovanni's account of sense of self, which centres the kind of principles and values we each individually endorse and the plans that we pursue (Lim, 2023, p. 71). We need this sense of self in order to be able to pursue our conception of the good. It seems difficult to be able to live the kind of life we want if our sense of self is damaged. Crucially, this sense of self depends on how others see us (Lim, 2023, p. 79). For example, Lim (2023, p. 77) points out how a racial slur can undermine the view someone has of themself. Thus, social equality, Lim (2023, p. 79) argues, is necessary for a sense of self. Lim claims that social equality generates two kinds of duties on the state's part: ‘negative duties of justice to refrain from enacting institutional norms or policies that foreseeably lead to social inequalities’ (2023, p. 60-1) and ‘positive duties of justice to create and maintain institutions that protect social equality’ (2023, p. 61).
Lim powerfully argues that the skill-selective immigration policy violates social equality in two ways. First, skill-selective immigration policy wrongfully discriminates against particular groups. It directly discriminates against low-skilled migrants. Lim (2023, p. 102–104) endorses the view that discrimination is wrong as it demeans the discriminatees, and she argues that low-skilled migrants are demeaned as the preference for highly skilled migrants tracks tropes in wider society about the undesirability of low-skilled migrants. Think of, for example, the persistent and largely unfounded idea that low-skilled migrants are more likely to use welfare benefits (Lim, 2023, p. 103). Skill-selective immigration policy also indirectly discriminates against women, who find it more difficult to meet its requirements (Lim, 2023, p. 122). Lim (2023, p. 131) argues that indirect discrimination involves a failure to discharge a duty of care or negligence. According to Lim (2023, p. 133), we have a duty of care towards socially subordinated groups – to, for example, refrain from treating them as inferiors –
Second, Lim argues that skill-selective immigration policy violates social equality because it involves colonial injustice. Her main claim here is that ‘states’ treatment of low-skilled migrant workers often fits the structure of colonial injustice; that is, through its racial exploitation of
Thus, Lim concludes that the skill-selective immigration policy violates social equality through discrimination and racial exploitation. In developing this argument, Lim very powerfully shows that an account of the ethics of migration is richer when it is attentive to the real world and existing injustice. She makes a very strong case for why immigration policy is much more loaded with meaning than we might have thought precisely because of real-world gender and racial dynamics. Lim ends by considering what follows from her claim that a significant part of immigration policy is unjust. She argues that migrants have a right to disobey unjust immigration laws in two ways. First, she agrees with the view that migrants have a right to disobey immigration laws that are egregiously unjust, in particular those that directly violate human rights, but she extends the scope of this by drawing our attention to immigration law that indirectly rather than directly causes human rights violations (Lim, 2023, p. 182). Second, she argues that it might be morally desirable for low-skilled migrants to disobey even immigration law that does not cause such egregious harm as this can force the public to deal with the treatment of low-skilled migrants.
At the heart of Lim's book, as I explained, is her compelling and insightful defence of social equality as necessary for a secure sense of self. Much of Lim's examples of how a sense of self can be undermined are interpersonal ones where there is a denigrating utterance, such as a racial slur, that is directed at a particular individual. Lim speaks of her own experience at a philosophy conference where a white professor asks her if she ‘knew who Kant was’ right after she delivers her talk (Lim, 2023, p. 77). She likens this experience to having ‘go back to China!’ shouted at her in London. These do seem to be instances where one's sense of self is undermined, but perhaps this is because they each involve a very blatant expression of racial inferiority directed at a particular individual. One might argue that the skill-selective immigration policy is different. For example, it does not explicitly say women need not apply because they are incompetent or that low-skilled workers do not belong in the country in question. It is less overt than many of the proclamations that Lim uses to illustrate how denigrating treatment can affect our sense of self. Nevertheless, I think Lim makes a strong case for why these policies are more loaded with meaning than we might think.
As I said, Lim (2023, p. 61) claims that social equality generates not only a negative duty to refrain from enacting policies that contribute to social inequality but also a positive duty ‘to create and maintain institutions that protect social equality’. Compared with the negative duty, this positive duty is not discussed very much in the book, but it raises some interesting questions. To start with, the positive duty seems much more controversial than the negative duty. Think of, for example, critics of global egalitarianism, who reject the idea that principles of justice apply between states, even if they might accept that there is a negative duty to refrain from worsening inequality in other states. Moreover, these positive duties ‘to create and maintain institutions that protect social equality’ might imply much more than what Lim spells out. For example, if skill-selective immigration policy really does perpetuate sexist norms, do states have a positive duty to create an immigration route just for women in certain fields?
Another interesting question that Lim discusses in the Conclusion is what this all means for skill-selective immigration policy. In the Introduction, she explains that her ‘aims are more diagnostic than prescriptive’ (Lim, 2023, p. 23). But whether the critiques that she levels against skill-selective immigration policy succeed might depend on the alternatives. In other words, are these really arguments against skill-selective immigration policy if the policy can be improved while retaining the focus on skill? For example, states can develop a more inclusive definition of ‘talent’ to address the ways in which skill-selective immigration policy indirectly discriminates against women, and the racial exploitation of low-skilled migrants can be prevented by better employment contracts. Indeed, in the Conclusion, Lim (2023, p. 203) explicitly suggests that skill-selective immigration policy can be reformed rather than abolished. But this does raise the issue of whether these are reasons
Both books explore the implications of social equality for immigration policy. In the second chapter of her book, Akhtar explains that the antidiscrimination approach is grounded in relational equality, which she notes is often referred to as social equality. She explains that ‘antidiscrimination views and theories of relational equality are, on the whole, concerned with the same central idea: that some are relegated to an inferior class or are liable to become so relegated’ (Akhtar, 2024, p. 54). Thus, Akhtar's argument that states should not select immigrants in ways that contribute to a vulnerable global status is ultimately based on the ideal of relating to each other as equals. As we have seen, the idea of social equality is even more explicit in Lim's work.
It is clear, however, that Lim and Akhtar interpret this ideal differently. One important point of divergence has to do with the context that they take to be relevant to the analysis of the ways in which states select would-be immigrants. As we have seen, central to Akhtar's account is the idea of global status, against which she evaluates racial and ethnic exclusion and other selection criteria. However, Lim expresses some scepticism of similar ideas. For example, she writes, ‘it does not seem less wrongful for a less globally powerful state like Burkina Faso to racially discriminate against a particular group than for a wealthy superpower like the United States, even if exclusion from the latter would affect the group's status on a grander scale’ (Lim, 2023, p. 96). More generally, as we have seen above, Lim is more interested in the interaction between skill-selective immigration policy and gender and racial dynamics within the receiving state. For example, Lim argues that skill-selective immigration policy is demeaning to low-skilled workers because it tracks negative stereotypes about them in the receiving state.
So, Akhtar is clearly interested in global status, whereas Lim seems to be more interested in the domestic status, or at least what the domestic context can tell us about the status of the targeted group of would-be immigrants. This raises the question of how domestic status and global status should be compared in cases where they conflict. It's true that a focus only on domestic status leads to a common objection levelled against the view that it is wrong to exclude would-be immigrants by race or ethnicity because it somehow wrongs citizens of the receiving states. The objection is that this view implies that a state with no racial or ethnic minorities or ‘a state [that has] successfully cleansed its territory of all ethnic, racial, and religious minorities’ (Fine, 2016, p. 147) would be permitted to exclude these groups on the basis of race or ethnicity. So, perhaps we would not want to focus solely on the domestic context or on domestic status, and Lim's argument in any case does not imply this. 5
However, in some cases where domestic status and global status conflict, there is the question of whether domestic status is more important. For example, in the case of Trump's Muslim ban, even if Arabs, as Akhtar suggests, have a secure global status, it seems that we want to point to their vulnerable
Footnotes
Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author received no financial support for the research, authorship, and/or publication of this article.
