So, you want to come here – and stay?

This week I want to address a puzzle, one a friend had alerted me to a couple of weeks ago.[i]  My question is simple:  is democracy incompatible with immigration and citizenship rules?  Before getting to this puzzle, however, it might be useful to examine some of these rules.

I can still remember when I first confronted the oddities in this area.  Several years ago, I was planning a visit to Shanghai, and emailed a friend there, a professor at Fudan University.  He replied to let me know he would be in the US.  With a level of honesty we would be less likely to see today, he explained that he was visiting with his wife, so that she could have their baby there: that would ensure their child would automatically acquire American citizenship.  It was the first time I understood American citizenship rules were intriguing.  You can be a citizen by virtue of birth in the country, whatever the nationality of your parents.  Further, if one of your parents is a US citizen and you are born overseas, you have the right to be a citizen.  In both cases there are some bureaucratic rules, which basically boil down to filling in the appropriate forms, but the right is automatic.

On the other hand, if you have been living in the US for several years, as a permanent resident, and decide you would like to become a citizen, the process is long and complex.  Apart from rechecking everything about your background, (the same information required for PR status), you are also expected to pass a citizenship test (basically a test of knowledge on the history, governance and social character of the country), and an English language test.  It is even more demanding than that, because acquiring permanent residency is itself a prolonged process.  Just to complete the picture, those of you living outside the US may not be aware that once you are a permanent resident, you already have most of the same rights and obligations as citizens, other than being unable to vote in elections (and vote against Trump!) and be expected to serve in the armed forces if so required.

To summarise all that, at any one time, there are at least five categories of people living in the US:

• those born in the country, or to a citizen overseas who subsequently took up residence in the country, some of whom may not speak English, and many of whom may not understand much about the rules and history of America
• permanent residents, who do not have to speak English nor understand much about the rules and history of America, and who cannot vote or be required to fight for the US
• naturalised Americans, who have to be able to speak English and pass that civics test (thereby being better informed than many locals?)
• visitors holding a visa (ranging from 3 months to several years), and
• illegal immigrants

Perhaps America is unusual, and the rules are more than merely intriguing?  It was only a few months ago that Donald Trump showed a brief interest in the Australian approach (something he felt the US could adopt, for the few minutes he had the idea).  He was interested, he claimed, because we had strict rules in Australia.  Quite apart from his views, I have often wondered about the similarities and differences between Australia and the US rules for immigration and citizenship, given both are so often in the news, and both countries seem rather obsessed with controlling immigration and preventing illegal entry?  With debate about border walls and offshore refugee centres, what are the rules, and how are they justified?

I started a comparison last week, and I thought the task would be easy.  After all, I’d worked in the Immigration and Ethnic Affairs portfolio a (few?) years ago.  Ever one to fall into the trap of hubris, I was soon overwhelmed.  A quick count revealed that Australia has at least 70 different types of visa, and the USA had well over 100.  As Donald Trump would say, who knew it was so complicated![ii]

However, it seems that in terms of being admitted to either country, the basic situation is actually very similar.  No visa, no entry.  One important variation on that is that the USA does allow visitors from some 37 countries to enter without a visa, the so-called Visa Waiver Program (VWP).  Those countries include some familiar ones: Australia, Austria, Belgium, Denmark, France, Germany, Greece, Ireland, Italy, Japan, the Netherlands, New Zealand, Norway, Portugal, Singapore, Spain, Sweden, Switzerland, and the United Kingdom.  Others might have been less predictable – like Andorra, Brunei, Liechtenstein, and San Marino.  The scheme sounds easier than it is, as those wishing to use the Visa Waiver program have to have completed an application through the Electronic System for Travel Authorization prior to departure.

Entry to Australia does require a visa, with almost no exceptions (we don’t have to get into discussing the Kiwis, do we?).[iii]   However, it has introduced an Electronic Travel Authority (ETA) system.  Successful application for this for this form of entry, effectively another kind of visa, allows visitors to enter Australia for up to three months at a time as a tourist or for business visitor purposes over a period up to a year. This may also allow a visitor to study in Australia for up to 3 months (but they carefully note “in some circumstances”).  The countries on the Australian list include Austria, Belgium, Denmark, France, Germany, Greece, Ireland, Italy, Japan, the Netherlands, New Zealand, Norway, Portugal, Singapore, Spain, Sweden, Switzerland, the US and the United Kingdom.   That’s the same group as on the American visa waiver list, and Australia also includes Andorra, Brunei, Liechtenstein, and San Marino. Is that evidence of collusion?  By the way, again just like the US, if you don’t use this system you have to have a physical visa in your passport on arrival.

It was at this point, I saw I was looking at this the wrong way around.  That long list of visas and countries represent a process of exclusion.  You might want to come here, but we can say no.  Those from Asia, African and South America are excluded from the VWP or ETA programs.  If you can understand the alternatives and want to spend time in either country for other than a holiday visit, you might be able to apply for one of the 70+ visas on offer.  You can apply, but you can be refused, and the process can take years!  Right now, an Indian applying for a US H-1B (high tech talent) visa can wait several years if the annual limit is passed (partners seeking a PR card as they are admitted on an HW Spouse (non-working) Visa can wait for decades!).[iv]

Fact number one.  Both countries operate on the basis of two presuppositions:  to visit, you have to seek permission, and permission can be refused.  To put that differently, countries like the US and Australia operate on the basis they have the right to keep you out: they can discriminate.

To return to the process for becoming a citizen, for those who do not have citizenship by virtue of birth, the two countries are, once again, quite similar.   In the US, after some years as a permanent resident, you can apply to be naturalised.  To naturalise: “to confer upon (an alien) the rights and privileges of a citizen”; (although I prefer the second dictionary definition “to introduce (organisms) into a region and cause them to flourish as if native”).  As mentioned above, this requires the completion of many forms, clearance by the police, tax authorities and others, and passing civics and English language tests.  The Australian process also involves a citizenship test: the test is in English and is meant to indicate some basic proficiency in English, but the resource book and questions are available in 37 ‘community’ languages, and it is possible to take the test with an interpreter who will read out the questions and possible answers in a language other than English.  As I implied earlier, to naturalise is to choose to be a citizen, a positive action, rather than being a citizen by default.

Fact number two.  To become a citizen in either country, aliens show they are like the natives through an understanding of basic civics and some level of competence in the English language.

The taken-for-granted explanation for all this, of course, is sovereignty, the right of the state to govern itself, and the government of the state has its authority through the consent of its citizens.  In a democracy, citizens determine the rules that govern them through electing officials advocating policies they prefer.  In the US, the scope of the role of the government is established within the articles of the Constitution and its amendments (of which the first ten are recognised as the Bill of Rights).  Australia also has a Constitution, but no Bill of Rights, preferring to follow the British example of recourse to common law.

Fact number three.  Both countries are democratic and allow citizens to elect representatives who are responsible for developing laws, within the overall framework of a constitution and bill of rights/common law.  Both would claim to operate with the consent of the governed.

And that is where my puzzle is to be found.  I am a permanent resident of the US; I am subject to its laws, but they are enacted without my consent.  I am not allowed to vote.  Nor, incidentally, is an Indian IT expert in the US on a H-1B visa, and he or she will wait years (decades apparently) to get a green card (Permanent Residency).  But in a democracy, shouldn’t I be allowed to participate in the government of the country where I reside, whose laws I am expected to follow?

I think I can claim to be the victim of institutionalised discrimination.

Does the Universal Declaration of Human Rights help?[v]  The Declaration was adopted by the General Assembly of the United Nations in December 1948; it was used as the basis for the International Covenant on Civil and Political Rights of 1966,[vi] which some 170 countries have signed, with their performance against these rights being subject to regular review by the United National Human Rights Committee.

Here are some of the key clauses in the Universal Declaration:

Article 3.
Everyone has the right to life, liberty and security of person.

Article 4.
No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.

Article 6.
Everyone has the right to recognition everywhere as a person before the law.

Article 7.

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Yes, at first glance it would seem I could make a case.  Actually, it is likely I can’t.  Although America was a (reluctant) signatory to the International Covenant, it has raised five reservations, five understandings and four declarations.  It has never accepted a single international obligation under the covenant, and the general consensus is that its signature is meaningless.

I am discriminated against as a permanent resident.  Surely it is quite reasonable to argue that anyone living in a state should have the right to participate in the democratic system, vote for representatives in government and on any other form of legislation through propositions, amendments, constitutional changes and referendums (referenda??), citizen or not, but simply by virtue of being there. [vii]

However, if you accept the argument that a state has its legitimacy through the consent of the governed, and that in a democratic society, that must include all those who are affected by the rules and regulations the state develops, we could consider a far more radical view.  In fact, as Sarah Fine has argued, there may be good moral and philosophical arguments to argue there should be no restrictions on immigration, and, indeed, that countries should accept a moral obligation to offer the opportunity to enter the country to anyone whose current situation is less adequate than that to be found internally.[viii]  Moreover, she has suggested that to have immigration rules and regulations is itself a form of discrimination, and therefore unacceptable in a democratic society.

Free to enter as you wish?

 

[ix]  No borders?  No ICE officers sending Mexicans back over the bord

[i] He told me about a podcast:  if you want to hear a much more erudite exploration of some of the issues, you can listen to Sarah Fine: <https://itunes.apple.com/podcast/philopsophy-bites/id257042117?mt=2&i=1000402321814>

[ii] There, and I had made myself a promise not to mention him again!

[iii] There is a separate arrangement for New Zealanders: kiwis are universally acknowledged as strange birds!

[iv] < https://www.nytimes.com/2018/04/18/opinion/immigration-india-tech-visa.html>

[v] < http://www.un.org/en/universal-declaration-human-rights/>

[vi] < http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx>

[vii] This does reinforce the importance of protections for minorities, like common law or a constitution.

[viii] Sarah Fine, Freedom of Association is not the Answer, Ethics, vol. 120 (January 2010): pp. 338–356; and <http://crookedtimber.org/2014/06/02/the-ethics-of-immigration-symposium-the-argument-from-democratic-principles/>

[ix] I’m not suggesting that would include terrorists or others who are demonstrably a threat to the state!  Nor would writers like Sarah Fine.