by Andreas Cassee

In the current debate on asylum, it is usually tacitly assumed that states have a fundamental right to reject immigrants. But is such a "right to exclude" morally justifiable at all? Or should we recognize a right to global freedom of movement and settlement from an ethical perspective?

When asylum policy is discussed in the wider public sphere, the question of our duty to help refugees is usually at the forefront. Who counts as a refugee and is entitled to protection: only politically persecuted people or also people fleeing other existential threats? Only those who have already made it to safe ground, or also people seeking protection who are just setting off? How can the people who are considered refugees in the relevant sense be distributed fairly among the European states? And how much are "we" even obliged to do to help those in need of protection?

However, posing the question of an ethically justifiable border policy in this way means ignoring a deeper problem of justification. The fact that states are fundamentally entitled to restrict immigration in accordance with their own ideas and interests is usually tacitly assumed in the political debate. At best, refugees are seen as an exception to the rule. And by understanding the asylum issue as a question of the obligation to help, the fact that the alternative to accepting refugees is not the refusal of help, but the use of state coercion, is ignored.

Those who are prevented from entering the country or deported at gunpoint are not merely "not helped". Immigration laws are enforced with coercion. And if anything requires justification, it is undoubtedly the use of coercion. This applies regardless of whether those subject to this coercion are politically persecuted or not.

Freedom of movement within and between states

It is widely accepted in principle that freedom of movement and establishment is a valuable asset. If people want to move their place of residence within a country to another location, they have a recognized human right not to be prevented from doing so. A woman from Berlin who wants to move to Landau does not have to prove to anyone that she is being politically persecuted in Berlin. Nor does she need to show that her labor is urgently needed in Landau. The choice of her place of residence is simply seen as a matter subject to her individual self-determination.

Is there any convincing justification for seeing the matter differently when it comes to the cross-border migration of people? Why should a human rights entitlement become a privilege that can be granted or denied at will simply because there is a national border between the place where I was born and the place where I want to move to?

Since the late 1980s, there has been a lively philosophical debate about the moral justifiability of a right to exclude those wishing to immigrate. However, this discussion has hardly been noticed by the wider public. Wrongly so. Because, as this article aims to make clear, the right to exclusion is not so easy to defend.

Attempts at justification

What justifies the coercion that is exercised on a daily basis against unwanted immigrants? At first glance, it may seem reasonable to point to the value of democracy at this point: "After all, our immigration laws were decided democratically!" However, there are good reasons to dispute that immigration restrictions as we know them today are democratically legitimized in a strong sense. Because democracy could also be understood in this way: Every person who is subject to the coercion of state laws has a right to have a say on the content of these laws.[1] And under this interpretation of the democratic imperative, unilaterally decided immigration restrictions are anything but democratic: those people who are prevented from immigrating by these laws have precisely no say.

The question, then, is whether there is any convincing justification for the view that immigration policy should be under the unilateral control of existing citizens. Freedom of association could be invoked here: Just as the existing members of a golf club have the right to decide freely whom they wish to admit to their association, so it is the good right of the existing citizens of a state to decide whether to admit prospective immigrants[2].

However, this analogy between states and clubs overshoots the mark by far. Private clubs not only have the right to reject outsiders, they can also withdraw membership from existing members or refuse admission to their descendants. Even the most ardent supporters of immigration restrictions are unlikely to claim that the same applies to states. Finally, on the basis of freedom of association, it is possible to formulate not only an argument for a right to exclusion, but also a powerful argument against such a right. Immigration restrictions deprive us of the freedom to form families, flat-sharing communities or soccer clubs with people from other countries without having to ask anyone's permission. Why should the exclusionary rights of the state be so important that they justify restricting freedom of association with regard to all other forms of association?

"Liberal nationalists" answer this question about the special significance of state exclusionary rights by arguing that states are typically the institutional home of a cultural nation[3]. It is the right of every nation to decide on its cultural future, and this also requires the right to decide on cultural changes resulting from the influx of people from other cultural backgrounds.

However, there are two objections to this. On an empirical level, the question is whether national affiliation really has the profound significance ascribed to it by liberal nationalists. What does a devout Catholic from Upper Bavaria have in common culturally with an atheist Berlin punk that distinguishes them from immigrants? Aren't other dimensions of individual identity at least as important as national identity? Doesn't our Bavarian Catholic possibly have more in common with an equally devout Catholic from Peru than with the godless punk? Doesn't the self-image of a left-wing feminist from Germany overlap more with the self-image of left-wing feminists from Turkey than with that of their conservative fellow citizens?

Above all, however, we no longer normally regard collective preferences about the further development of communal culture as a reason to restrict individual liberties. Even if a majority prefers to live in a Christian country, for example, we do not see this as a justification for restricting religious freedom. And just because a fellow citizen listens to the "wrong" music, we do not see ourselves justified in denying her the right to move freely around the country. So why should we regard similar collective preferences about the development of national culture as a reason to restrict freedom of movement between states?

A paradigm shift

Even if the philosophical arguments in favor of a right to exclusion could only be presented here selectively and in woodcut form: The accusation that immigration restrictions as we know them today ultimately only serve to protect the undeserved advantages of those born with the "right" citizenship is difficult to dismiss out of hand. It is therefore not without good reason that citizenship in a wealthy state is compared to the feudal privileges of the Middle Ages[4].

There are therefore good reasons for a paradigm shift in migration policy: away from a paradigm that treats immigration applications like marriage proposals that there is no obligation to accept. Towards a paradigm that is taken for granted today when people migrate within a country. In principle, it is the right of every person to decide freely where they want to settle. And any deviation from this principle requires a justification that is acceptable from an impartial perspective.

This does not mean that restrictions cannot be justified under any conceivable circumstances. Of course, situations are conceivable in which the right to freedom of movement conflicts with other justified claims, for example if a very high immigration rate makes it impossible to guarantee the central claims of those "inside". However, restrictions in such cases must be proportionate: Merely pointing out that "not everyone can come" is no justification for not admitting the next person. And in reality, we have probably only ever come close to the point where restrictions are legitimate for such reasons in a few cases of extreme south-south migration.

Admittedly: The recognition of a right to global freedom of movement and settlement is not achievable in the short or medium term. But it is a goal that we should work towards in the long term. And we can start in the here and now. For example, by granting freedom of movement to people whose rights to self-determination have been trampled on in their country of origin. So let's stop arguing about how we should distribute refugees among European countries and give them the right to distribute themselves.