The current international asylum regime recognizes only persecuted persons as rightful asylum applicants. The Geneva Convention and Protocol enumerate specific grounds upon which persecution is recognized. Claimants who cannot demonstrate a real risk of persecution based on one of the recognized grounds are unlikely to be granted asylum. This paper aims to relate real-world practices to normative theories, asking whether the Convention’s restricted preference towards persecuted persons is normatively justified. I intend to show that the justifications of the persecution criterion (...) also apply to grounds currently lacking recognition. My main concern will be persecution on the grounds of gender.The first section introduces the dominant standpoints in theories of asylum, which give different answers to the question of who should be granted asylum, based on different normative considerations. Humanitarian theories base their claims on the factual neediness of asylum-seekers, holding that whoever is in grave danger of harm or deprivation should be granted asylum. Political theories base their justifications on conceptions of legitimacy and membership, holding that whoever has been denied membership in their original state should be granted asylum. Under political theories, Matthew Price’s theory will be discussed, which provides a normative justification of the currently recognized persecution criterion. The second section provides a descriptive definition of persecution based on Kuosmanen, and evaluates the normative relevance of the different elements of this definition based on the theories presented previously. The third section is devoted to the examination of the normative justifiability of the nexus clause’s exclusive list of the bases upon which persons might be persecuted. The section argues that while the clause does not recognize that persecution might be based on gender, in fact many women experience harms based on gender that fulfil all the normatively relevant definitive conditions constituting persecution. The conclusion shows that although the current law’s preferences towards the persecuted are justifiable, the nexus clause’s limiting enumeration of grounds is not. This applies especially to the exclusion of gender as grounds for granting asylum.Article first published online: 21 DEC 2015. (shrink)

In the scholarly debate, refugeehood is often understood to arise from a special need for basic protection, i.e., for protection of basic needs and rights. However, the main definitions of refugeehood shift to duties when aiming to develop this view. Either, refugees are defined as all those individuals who can receive basic protection from the international community, and thus arguably ought to be protected, or refugees are defined as all those to whom a special form of protection, namely protection by (...) admission is owed. The paper argues that either definition is incompatible with a commonsense desideratum on consistent and plausible criteria for refugeehood, since these definitions imply that refugeehood depends partly on the capacities of protecting states and on the needs of third parties. Instead, refugeehood is defined by the need for basic protection and by flight aiming to remedy this condition. (shrink)

Even though anthropogenic climate change is largely caused by industrialized nations, its burden is distributed unevenly with poor developing countries suffering the most. A common response to livelihood insecurities and destruction is migration. Using Peter Singer's ‘historical principle’, this paper argues that a morally just evaluation requires taking causality between climate change and migration under consideration. The historical principle is employed to emphasize shortcomings in commonly made philosophical arguments to oppose immigration. The article concludes that none of these arguments is (...) able to override the moral responsibility of industrialized countries to compensate for harms that their actions have caused. (shrink)

Normative debates on migration control, while characterised by profound disagreement, do appear to agree that the state has at least a prima facie right to prevent the entry of security threats. While concern is sometimes raised that this ‘security exception’ can be abused, there has been little focus by normative theorists on concrete practices of security, and how we can determine what a ‘principled’ use of the security exception would be. I argue that even if states have a right to (...) prevent migrants from entering on grounds of security, the practices required to implement this right will likely compromise core liberal democratic values in ways that have not been sufficiently appreciated. I draw on literature from Science and Technology Studies and Critical Security Studies to examine the proliferation of digital border control technologies which are increasingly dominating state security practices, and explain the challenges these technologies pose to non-discrimination, liberty and equality. I also highlight the difficulties of taking these principles as presumptive limitations on the operation of the security exception. A more sustained conversation among ethical theorists is needed to address the profound ethical challenges that the ever-increasing use of these technologies poses, particularly in pursuit of security. (shrink)

Temporariness has become the norm in contemporary refugee protection. Many refugees face extended periods of time waiting for permanent status, either in camps or living among citizens in their state of asylum. Whilst this practice of keeping refugees waiting is of benefit to states, I argue that not only is it harmful to refugees but it also constitutes an injustice. First, I outline the prevalence of temporary assistance in the refugee protection regime. Second, I outline the orthodox view on temporary (...) refugee protection – it is acceptable as long as it is not indefinite. I then spend the remainder of the article considering four arguments against temporary refugee protection: the plan argument, the reciprocity argument, the domination argument, and the compounding injustice argument. I contend that the first two arguments, which already feature in the literature, merely show that temporary protection is harmful to refugees. My own arguments on domination and compounding injustice show, instead, that giving refugees temporary protection constitutes an injustice. The domination argument allows us to critique the current practice of temporary refugee protection, whereas the compounding injustice argument shows that temporariness in any form constitutes an injustice. (shrink)

Do liberal states have a moral duty to admit immigrants? According to what has been called the “conventional view”, this question is to be answered in the negative. One of the most prominent critics of the conventional view is Joseph Carens. In the past 30 years Carens’ contributions to the open borders debate have gradually taken on a different complexion. This is explained by the varying “ideality” of his approaches. Sometimes Carens attempts to figure out what states would be obliged (...) to do under otherwise perfectly just conditions (i.e., he attempts to establish an ideal). At other times, he is more interested in what to do, given the (not fully just) world that we actually live in. In my view, the relevance of the ideal/non-ideal theory debate to the open borders debate (and the ethics of migration more generally) has not yet received sufficient attention. My aim in this paper therefore is to show in detail how Carens’ varying approaches affect his critique of the conventional view. To this effect I analyze three of his papers: “Aliens and Citizens: The Case for Open Borders” (1987), “Realistic and Idealistic Approaches to the Ethics of Migration” (1996), and “Who Should get in? The Ethics of Immigration Admissions” (2003). (shrink)

When governments create refugee policies they consider several factors. There are reasons why admitting refugees could have negative consequences. On the other hand, if the recipient societies have ideals that stress the importance of helping other people, they should act according to their values. The aim of this article is to examine the concept of human dignity and show that European states should admit and help refugees because it is in accordance with their ethical values and the international agreements they (...) have signed. This is important because when European countries hesitate to help refugees, they act not only contrary to their humane tradition, but they can harm them. The western concept of human dignity is one of the main values that stresses that each person is important—that they are equal and free. (shrink)

In this article, I address the question: what kind of normative principles should regulate the governance processes through which migration across international borders is managed? I begin by contrasting two distinct categories of normative controversy relating to this question. The first is a familiar set of moral controversies about justice within border governance, concerning what I call the ethics of exclusion. The second is a more theoretically neglected set of normative controversies about how institutional capacity for well functioning border governance (...) can best be achieved, concerning what I call the constitution of control of international borders. I argue that progress can be made in resolving controversies of the latter kind by applying a new normative theory of political legitimacy, distinct from the moral theories of justice routinely applied to ethics of exclusion controversies. On the ‘collective agency’ model of political legitimacy that I propose here, principles of political legitimacy have the regulatory role of combating complex collective action problems that may otherwise impede an institution’s collectively valuable functions. Through applying this theory, I sketch some provisional prescriptions for the design of international border governance institutions that may follow from the demand for strengthening their political legitimacy. (shrink)

Legitimate states have a general right to control their borders and decide who to admit as future citizens. Such decisions, however, are constrained by principles of justice. But which principles? To answer this we have to analyse the multifaceted relationships that may hold between states and prospective immigrants, distinguishing on the one hand between those who are either inside or outside the state’s territory, and on the other between refugees, economic migrants and ‘particularity claimants’. The claims of refugees, stemming from (...) their human rights, are powerful though limited in scope: they hold against eligible states generally rather than the specific one to which they apply for asylum. Economic migrants cannot claim a right to be admitted as such, but only a right to have legitimate selection criteria applied to them. Particularity claimants, such as those seeking redress for harms inflicted on them or reward for the services they have rendered to the state, must show why awarding a right to enter is the appropriate response to their claims. Finally, does justice enable us to establish admission priorities between these different categories of migrants? (shrink)

Most accounts of immigration ethics implicitly rely upon neoclassical migration theory, which understands migration as the result of poverty and unemployment in sending countries. This paper argues that neoclassical migration theory assumes an account of the human person as solely an autonomous rational agent which then leads to ethics of migration which overemphasize freedom and self-determination. This tendency to assume that migration works as neoclassical migration theory describes is shared by political philosophers, such as Joseph Carens, Michael Walzer, and David (...) Miller. This paper argues that all three philosophers incorrectly frame migration as a contest between the freedom of the migrant and the communal self-determination of the political community. Migration systems theory is presented as a theory that draws upon a relationally embedded understanding of autonomy in order to begin to develop a migration systems ethics. This paper concludes by arguing that the central ethical category for an ethics of migration is not freedom or self-determination, but justice-in-relation. (shrink)

1. Among the most striking features of the political arrangements on this planet is its division into sovereign states.1 To be sure, in recent times, globalization has woven together the fates of communities and individuals in distant parts of the world in complex ways. It is partly for this reason that now hardly anyone champions a notion of sovereignty that would entirely discount a state’s liability the effects that its actions would have on foreign nationals. Still, state sovereignty persists as (...) a political fact. The number of states has increased enormously due to upheavals of the 20th century, and there is nothing in principle morally wrong with the existence of states - or so we will assume.2 What must be explored, then, are the limits of normatively plausible sovereignty. How bad does a government have to be for outsiders to be allowed to interfere? What responsibilities does a country incur because of its contribution to global warming? What obligations arise through trading? In this paper, we explore another pertinent question: to what extent is a country allowed to influence who lives on its territory by regulating immigration? The angle from which we approach this question continues to be neglected even now that questions of global justice are receiving much attention. Immigration amounts to a change in political relationships as immigrants alter their standing within one community and acquire a status elsewhere. Yet it also amounts to an alteration in physical relationship, since they acquire a relationship to a territory, making a life for themselves with the resources offered by a part of the earth.3 We base our exploration of.. (shrink)

Immigration is often associated with a situation in which would-be migrants and their countries of origin are put at the mercy of others’ decisions. The main objective of this article is to theorize this ‘being at the mercy’ in light of a republican definition of what freedom is about: the absence of domination. Immigration policy represents instances of domination on a wide spectrum of individuals and political communities. This article focuses on the procedural discretion claimed by states of destination in (...) their relations with would-be migrants. On the basis of a definition of the concept of ‘jurisdiction’, the article distinguishes 4 paradigmatic situations of immigration, which all display situations of domination. In each situation, the state of destination arbitrarily interferes with important interests of individuals and political communities. In light of this argument, existing mechanisms in national, transnational and international settings can be identified and justified as anti-domination measures. The argument offers a blueprint on how to further develop them in preventing domination in immigration. (shrink)

The aim of this paper is to question, from the perspective of a principled theory of criminalization, the legitimacy of making irregular immigration a crime. In order to do this, I identify three main ways in which the political decision to introduce a crime of IM may be defended: according to the first, IM is a malum in se the wrongness of which resides in its being a violation of states’ territorial sovereignty; according to the second, IM is a justified (...) malum prohibitum the wrongness of which resides in its being a violation of a justified immigration regulation; according to the third, IM is a malum in se the wrongness of which resides in its harmful consequences for receiving states’ citizens. My thesis is that none of these arguments succeeds in providing us with sufficiently good reasons to justify the use of criminal punishment to enforce the closure of state borders. As regards the first, I argue that it relies on a misleading conception of what is entailed by states’ territorial sovereignty, and that therefore it is unsound as an argument for the state’s right to control immigration. With regard to the second, I argue that, be they legitimate or not, immigration regulations enacted by states cannot provide those would-be immigrants they aim to exclude with content-independent reasons to comply with them; and this is a necessary pre-condition to conclude that IM is a justified malum prohibitum. As regards harm-based approaches, I argue that the notions they rely on are completely unfit as criteria for criminalization. This leads me to the conclusion that, unless other more convincing arguments are provided for, IM should not be criminalized. (shrink)

This paper argues that pre‐departure language requirements for family reunification are unjustified. Such requirements are assumed to safeguard (1) the non‐instrumental cultural interests of citizens of the receiving society and (2) the instrumental language interests of both citizens and immigrants, for democratic life and political participation. The paper explores nationalist and multiculturalist arguments for implementing post‐arrival integration to ensure a shared public language but contends that such arguments cannot justify pre‐departure language requirements. In addition, instrumental language interests for democratic political (...) life fall empirically short and place undue burdens on immigrants. The case of family reunification poses a unique moral problem, given the vital interest in living with one's family. The paper argues that the linguistic interests of the receiving state, in general, do not outweigh the claim to family reunification. (shrink)