The migrants’ rights conundrum: What are we campaigning for?
What are we talking about when we talk about the rights of migrants? Is there something tangible already there that we can anchor this discussion in, or is it a matter of aspiration for a better world of the distant future?
This is the theme of Martin Ruhs' new important book called The Price of Rights. His view is informed by the ‘realist’ perspective, which basically states that the rights of migrants are things which sovereign law-makers are prepared to concede to people who cross borders. This is most clearly embodied in the laws, rules and regulations that manage the movement of people across national frontiers.
What might be available to migrants in terms of their rights depends of broader philosophies of national life, which typically encompass issues like the role human rights play in ordering relations between the state and its citizens and the importance attached to equality. In real life the spectrum of possible outcomes extends from that of Sweden (high on human rights, high on equality) through to the states of the Gulf Cooperation Council (generally low on both).
Given this range of outcomes, is it possible to identify the factors which influence the law-makers when it comes to granting rights? Ruhs’s book sets out the argument that it is and it all boils down to a rationalistic judgement about the type of trade-offs needed to ensure that the country is able to attract the types of migrants it needs at the lowest cost in terms of impacts on the position of established citizens and the social and welfare systems that their taxes support.
Trading off rights
Ruhs's position helps us understand the vast array of different rights that are attached to the various types of migrants and why it is that the systems used to manage migration across the globe are so vastly complex. Most broadly, those workers with skills that are considered to be in short supply, and who need a bit of persuasion to come to your country, will be offered more rights than the less skilled, who are considered to exist in abundance.
The UK provides a fine example of a sovereign state that appears to embody this approach, with its elaborate points-based system having something of the look of a medieval index of the rights and responsibilities attached to all the gradients of society. Ruhs has reviewed the systems used to manage migration in 46 countries and is confident that the evidence supports his hypothesis that the same principles that underpin the British system apply on a much wider basis and that rights are allocated to migrants strictly on the basis of their greater or lesser utility to markets and the economy.
But Ruhs has a bigger purpose than merely setting out the empirical facts and this is what makes his book important in the context of contemporary policy debate. He aligns his broad sympathies with the 'human development' approach to economic progress associated with Amartya Sen and others, which sees the enlargement of people's choices and the enhancement of human capabilities and freedoms as the route we should be seeking to take with our policy options. From this perspective the greatest gains to be got from mobility come from the movement of people seeking employment in what are considered to be the less skilled and least prestigious jobs.
However this poses a dilemma to governments with the power to facilitate movement of relatively low-skilled people, as this would mean extending rights normally associated with citizenship to larger numbers of people and would thereby increase the cost that has to be met by actual citizens in the form of more competition in low skill labour markets and higher welfare and public service costs.
Advocates of human rights for migrants have not helped this situation. Their activism and instance on high standards has increased the reluctance of governments to open up channels for labour migration on the grounds that ways will be found to lever rights and entitlements into systems that were intended to limit them. The intentions of this group have been well-advertised in the form of calls to sign up to the UN Convention on the Rights of Migrant Workers and to ratify its core claim to equal treatment for migrants and the citizens of the countries in which they have settled.
Ruhs wants to re-balance the 'idealism' of the movements for migrants' rights with the realism of economic trade-offs. He musters enough evidence to make a plausible argument that this is what the migrants themselves want, consistently showing themselves willing to accept marginal existences outside the social mainstream of life in order to reap the benefits of higher wages and the chance to bank the gains in their countries of origin. It is a criticism that is likely to sting many people who follow MRN blogs, suggesting that their insistence on the very best for migrants might well be the reason why they are getting the very least.
The trade off that Ruhs would like to pursue in the interests of opportunities for human development would involve a re-groupment of the human rights defence around a set of core provisions, rather than the full programme of equality, and expansion of temporary migration programmes to allow a higher volume of people to come for shorter periods to work in low skilled jobs.
The core rights would certainly include the right to protection from exploitation and free movement within the jurisdiction of the state, but would draw the line by limiting family reunion opportunities, excluding migrants from non-contributory welfare benefits, and closing down options for long term settlement.
This is a stimulating book and Ruhs is well-known for his alignment with the current of scholarly thinking about these issues which is interested and even committed to improving the lot of migrants in the modern-day world. But one does not read very far into the text without being prompted to ask questions which are glossed over in the argument. The proposition that immigration policies arise from a rationalistic process of trade-off between policy-makers who are obliged to consider the imperatives of economic efficiency, distribution of national income, national identity and social cohesion, as well as security and public order seems to be not fully adequate as a description of the political processes which are really underway.
Further, the view that the interests of migrants can be summarised as maximising the access to higher income employment with everything else being negotiable also seems less than a full account of the reality of the migrant dilemma. Taken together these concerns begin to amount to a rather serious challenge to the 'realism' which is the strong part of Ruhs's argument.
The feeling that there might be something more to the way in which rights are allocated to migrants than rationalistic trade-off comes from doubts that rights are associated with high skilled migrants and exclude the low skilled. For the UK, and one must suspect the rest of the European Union, the vast majority of migrants in low skill jobs move with the assurance that they have the right of free movement afforded by the EU Treaties. The full extent of these rights would make most gilt-edge high skill migrants from outside the EU feel neglected: how does this fit with the confines of trade-off theory?
Ruhs might feel he has an answer along the lines that this is an aberration outlying the solid core of an otherwise defensible hypothesis. He might say that freedom of movement was never intended to function as a low skill migration channel, but it is hard to see why it wouldn't have been. The treaty provision had its origins in the old European Coal and Steel Community which certainly envisioned the creation of rights to free movement for hundreds of thousands of miners and steelworkers in trades and occupations that would be deemed to be low skill by the standards of modern-day migration management systems. Later, when Greece, Portugal and Spain joined the then European Community in the early and mid-1980s, the likelihood that free movement would be a route for low skill migration was widely acknowledged and accepted.
Exclusion of migrants from voting rights in national elections is something that Ruhs feels can properly be withheld from migrants as part of the trade-off needed to facilitate higher volumes of movement. Yet the UK permitted this right to its Commonwealth migrants and preserves it to this day.
What frame for trade-offs?
The point here is that policy-makers can find that they have to work with realistic frameworks that extend a long way beyond considerations of the types of economic efficiency and social cohesion which Ruhs is comfortable with. These will be issues never entirely absent from the thoughts of any politician but they will often have to be tempered external factors, such as the old, post-war desire to project British power into the world through its Commonwealth associations (the reason why Commonwealth citizens were given the right to vote in 1948), or the subsequent European project to create a continent-wide single market in goods, services, capital and labour which emerged from the mid-60s onwards.
These bigger frame issues have had implications for the allocation of rights to migrants which are not particularly well predicated in Ruhs's scenario. There is no reason either to think they are exceptions to the general rule of realism. One of the complicating features for immigration management at the present time is the rise of the so-called BRICS countries which are begining to show more interest in asserting the rights of their nationals under the immigration regimes dominated by the interests of the European and North American states.
At the present time this is mainly limited to checking the negative impact of visa regimes, but the example of India's bargaining stance with regard to the EU-India Free Trade Agreement suggests that there is space for the emerging countries to considerably alter the calculus as to what constitutes national interests in this area and thereby generating more traction for arguments about the rights of migrants.
The problem with Ruhs’s central proposition is that it sees the partners involved in trade-offs over rights as representing relatively stable and predictable interests. Governments are able to calculate the benefits of migration which accrue to economic efficiency and weigh them against the drawbacks in relation to fiscal burdens, issues of identity and cohesion and the challenges of national security. This sounds like a very simple procedure but in reality every single one of these categories takes the policy-maker onto deeply contested terrain. It often seems that nation states themselves will crumble and vanish (there are enough examples of that happening) before any precise formula is given up that would allow a reliable and sustainable balance to be struck between competing elements.
A further criticism of Ruhs’s position is that it fails to do what he most hopes it will achieve; namely provide migrants' rights advocates with a sound basis for campaigning for the interests of migrants. How are they empowered by understanding that their predicament is the outcome of a trade-off between complex and conflicting interests in relation to which they are little more than passive bystanders? His interest in identifying core rights which seem less fussily bothered with the niceties of equality and the full panoply of human rights boils down to what, in most liberal democracies, is little more than the status quo. Torture and slavery are officially deplored, due process before the law, in most cases, is observed, and as for the rest, family life and the prospect of eventual settlement either happen or they don’t, depending on the whim of government.
Supporters of the rights of migrants can and probably should read this book with a proper sense of gratitude that such a thoughtful piece of work which critically assesses exactly what we are trying to achieve has been written. But if we are to get the full benefit of its appraisal it ought to be that we would be making a mistake if we allowed public discussion and campaigning action to devolve onto the question of what we can best gain from trade-offs with the powers that be.
There is another way to look at the issue. This involves seeing migration as one part of those developments in the modern world which have the potential to shake our old ways of seeing the world and the way it is organised to the core. The presumption that national states are the eternal, stable elements they seem to be is being challenged at every point at the present time, and this raises inevitable questions about whether they can be depended on to provide the framework for policies and actions which promote and protect the welfare of whole swathes of their populations.
If they can’t, or at least require significant modification if they are to continue to contribute to good welfare outcomes, then what will be the future of the concept of citizenship as the world goes through these changes? Most importantly, what will be the character of the rights that post-national citizens claim as their due in a world in which mobility and flux are stronger features of everyday life?
There are precedents for questions of this sort. The extension of civil and economic rights to the population of Britain during the period when the old certainties of rural communal life were being swept aside and a new industrial social class brought into existence cannot easily be represented as the outcome of trade-offs worked out by elite policy-makers who are well-informed at the level of empirical data. It happened because workers know that their lives would not be possible unless the ruling class conceded that they had the right to escape from the incessant demands of capital which determined that everyone from children to the aged and the infirm labour 14 hours a day to keep the factory system going.
That is the migrants’ rights movement we think needs to be built today. If the modern world can only organise its affairs by reaching out across borders to ensure that capital accumulates and grows, then those who these forces propel across these self-same frontiers of their home states need the rights that will allow them to live with the degree of security and assurance of common welfare that human being need to flourish.
There will be times to consider trade-offs and compromises no doubt: but the elemental force to take the movement forward will come from the intensity of economic and democratic struggles for justice and equality.