Equality for Immigrants in Theory and Practice

The panel "Equality for Immigrants in Theory and Practice" will explore what it means for immigrants and nonimmigrants to live together as equals. It focuses, in particular on the kinds of rights and legal statuses to which migrants are entitled. The panel will be organized as a three-hour pre-read workshop, with four papers for discussion. The panel will take place online via zoom on April 28th from 14:00-17:00 Central European Time.

Panel Schedule
14:00-14:10: Welcome
14:10-14:50: Henriet Baas (European University Institute): “Unequal Equality. Migrants’ Differentiated Access to Equality in EU Law.”
14:50-15:30: Mario Josue Cunningham Matamoros (KU Leuven): “Equality without Equal Rights. A Case for Rights Differentiation in Temporary Labor Migration Programs.”
5 Min Break
15:35-16:15: Patti Lenard (University of Ottawa): “Subjection, equality and tricky questions in the political theory of migration”
16:15-16:55: Daniel Sharp (New York University): “Immigration, Naturalization & The Point of Citizenship.”

Abstracts for these talks are found below. To RSVP to the panel and recieve access to the papers, email Daniel Sharp at [email protected]

This panel will take part as part of the 2021 PhD Lead Workshop on Norms and Values, organized by the Malmö Institute for Studies of Migration, Diversity and Welfare (MIM), held online via Zoom on April 28th-29th. This workshop is organised by the IMISCOE funded research initiative on norms and values in migration and integration (NOVAMI) in collaboration with the H2020 project NoVaMigra (Norms and Values in the European Migration and Refugee Crisis) as well as the research schools of Global Politics and International Migration and Ethnic Relations (IMER) at Malmö University.
Panel Chair: Daniel Sharp
The workshop organising committee consists of: Caroline Adolfsson, Johan Ekstedt.
Advisory committee: Brigitte Suter, Ingrid Jerve Ramsøy, Michael Strange.

More information about the overall workshop is available here: https://mau.se/en/calendar/imiscoe-phd-lead-workshop-on-norms-and-values/

Abstracts:

Unequal Equality – Migrants’ Differentiated Access to Equality in EU Law

Henriet Baas, European University Institute

The legal principle of equality is a cornerstone of European integration. Fleshed out in legislation and upheld by the European Court of Justice it prohibits discrimination on a variety of grounds, including nationality, gender, race or ethnicity, religion and age. While offering EU citizens protection against a growing number of discrimination grounds, the principle’s application to third-country nationals remains ambiguous. The latter have hitherto been excluded from equality based on nationality and are only limitedly covered by legislation on other grounds of discrimination. At the same time, EU migration law has introduced obligations to Member States to grant third-country nationals equal treatment as compared to their own nationals regarding a number of rights. These equality rights, however, differ significantly among third-country nationals according to their administrative status. As such, it seems that equality is primarily used as a policy tool to attract “desirable” migrants, such as high-skilled workers.

In light of this differentiated nature of equality, this contribution aims to trace how and to what extent current EU migration law creates equality between third-country nationals and EU nationals, and, importantly, between different groups of third-country nationals. This focus on the rights’ dimension of equality will allow to discover what equality concretely means for those third-country nationals whose status is regulated by EU migration law. In this way, the delicate relationship between equality and contemporary migration law, which is complicated by the latter’s exclusionary nature, will be explored. The fragmentation of third-country nationals’ equality rights is understudied in literature but is of significant importance to grasp the overall functioning of the principle of equality in EU law and to understand Member States’ (un)willingness to award rights to groups other than their own citizens.

Equality without Equal Rights. A Case for Rights Differentiation in Temporary Labor Migration Programs

Mario Josue Cunningham Matamoros, Hoger Instituut voor Wijsgeberge, KU Leuven

The boost of temporary labor migration programs (TLMP) worldwide is simultaneously a reason for hope and concern. On the one hand, these programs' potential in reducing global poverty and inequality is well-proven (Martin, 2015; Ottonelli & Torresi, 2019; Posner & Weyl, 2014). Nonetheless, on the other hand, these programs are characterized for their dependence on rights differentiation that relegates migrants to second-class citizenship (Walzer, 1983) and facilitates the exploitation of migrant workers (Bauböck, 2011; Bertram, 2019; Carens, 2013). These two features of TLMP raise a dilemma: either liberal egalitarians support TLMP even though they undermine equality at the domestic level or oppose these programs to the detriment of global equality (Ottonelli & Torresi, 2012).

This paper will take issue with the preceding dilemma. By addressing the question "what does equality requires in terms of rights?" in the context of TLMP, I will argue that moral equality allows for rights differentiation practices. Moreover, I will argue that the liberal egalitarian commitment to basic global justice demands embracing these practices to maximize temporary labor migration. I will develop this argument in three steps. Firstly, drawing on the negative conception of moral equality (Sangiovanni, 2017), I will explain why, under certain conditions, rights differentiation between citizens and temporary immigrants does not entail wrongful discrimination – that is, the type of discrimination that undermines equality. Secondly, working from a transitional standpoint (Gilabert, 2008), I will show how TLMP are required by basic global justice due to their poverty-reducing effects. Finally, I will consider the second-class citizenship objection according to which rights differentiation between migrants and citizens undermines the egalitarian ethos of democratic societies. Although limited to the TLMP, this paper will hopefully allow for a broader discussion of the interplay between equality and rights in the context of migration in general.

Subjection, equality and tricky questions in the political theory of migration

Patti Lenard, Associate Professor of Applied Ethics, University of Ottawa

Among political theorists of migration, a key disagreement focuses on how open borders should be, ranging from those who argue that they should be nearly fully open to those who defend states’ rights to robustly control their borders.  These two general positions have been helpfully deployed to make sense of some serious practical questions in migration, including with respect to refugees and asylum seekers; temporary foreign labour migration; high-skilled labour migration; and so on.  This framework does not help guide us in adopting morally appropriate policies with respect to trickier questions, however.  Some examples of these quite varied questions include: What rights should be granted to “mixed” families (i.e., families where some members have legal status and others do not)? Should states be permitted to denationalize citizens? Who can be permissibly deported? When can visas be denied to would-be entrants?

 To respond to these questions, I suggest that the “all-subjected principle”, well-articulated by scholars of the democratic boundary problem, gives effective moral guidance in treating the tricky migration questions I listed just above (and more!).  Critiques of the all-subjected principle typically say that, it assumes that a constituency is already determined before explaining why those who are subject to power ought to have a say in how it is exercised.  In the paper itself, I offer a more technical account of subjection, but roughly I treat someone as subjected to political power if she is subjected to political institutions, with coercive power, that act to shape her life by opening and protecting certain key options she might make (and close others). In this paper, which is the framework chapter of a book I’m writing titled Democracy and Exclusion (on contract with OUP), I will argue that a focus on subjection best guides us in treating migrants, with a range of statuses, equally across a range of contexts, while respecting the right of states to exclude in some circumstances. 

Immigration, Naturalization & The Point of Citizenship

Daniel Sharp, New York University

It is widely believed that immigrants, after a time, acquire a claim to naturalize and become citizens of their adopted state. But what explains this claim? I argue that existing answers cannot adequately explain why immigrants have a claim to naturalize: they can’t explain why it’s problematic for some to be confined to the status of permanent alienage. Although they (may) succeed in justifying immigrants’ claims to some of the constituent rights and entitlements associated with citizenship, they cannot justify the claim that immigrants are owed the opportunity to naturalize—to acquire the full panoply of rights and entitlements citizens have along with the legal status of ‘citizen’. The source of the problem, I show, is that these theories lack a sufficiently rich account of the point and purpose of the institution of ‘citizenship status’. To fill this gap, I offer some conjectures towards such an account. The institution of equal citizenship serves a protective function against social hierarchy and helps realize an attractive ideal of social equality. This egalitarian account of the purpose of citizenship, I conclude, helps complete the argument for naturalization.