How are we to think clearly about the problems presented to us by migration?
Can we be best directed by our feelings?
Our feelings might be – should be – instinctively sympathetic for those who have been displaced, but there will be others feeling a fear of the unknown , concerned if an indeterminate number of people with different backgrounds histories and values seek refuge amongst us.
Maybe we are better to bring cold hearted logic to bear if a solution is to be reached with the necessary swiftness?
But is it is a cerebral matter only? Should we try to to work out optimal numbers, calculating our economic costs or gains? Is that even possible in a plural democracy where there will be many views? It certainly cannot be done quickly. It thus falls to a worried Government to make a decision how to respond quickly to that dreadful picture of a drowned toddler on a beach.
Rarely will a Prime Minister have better understood Harold Macmillan’s summation of the Prime Ministerial nightmare ” Events, dear boy, events”
There will be some who will see the opportunity for political advantage, either to brand the Prime Minister an unfeeling brute or to bolster their argument against the EU. We may try to resist getting sucked too far into those areas if we are true to the mission of trying to reach a practical solution that does not affront our values, but few will succeed. Each and every decision will bleed political consequence into the body politic,
Brother Ivo ‘s abiding sense, as the various dimensions and complexities of the problem unfolds is simple, though not immediately practical. If you or I feel totally comfortable with our position in this dreadful crisis, we are probably not thinking hard enough.
It is a good discipline for us all to go to the position in the debate where we feel least comfortable and ask ourselves ” Where is there merit in this quarter of the discussion?” The more Brother Ivo has turned the issues over in his mind, the more he has come to appreciate that this is one where most “sides” have a point. This is always the worst kind of dispute to be embroiled in; the worst civil wars occur where there is indeed a degree of merit on both sides.
So today Brother Ivo will challenge the instincts of perhaps a majority in his Church whose instinct is dismiss fears about migration, and its consequences.
In an attempt to find a way of thinking clearly on the subject, Brother Ivo turned briefly to a rather obscure Harvard academic Wesley Newcombe Hohfeld whose work attempted to encourage a careful definition of concepts for use in legal analysis so that we do not confuse the argument with imprecision. He developed his language tools for use in civil disputes but as will be seen, they may assist in carrying our thinking when discussing immigration and the related Human Rights issues.
In a nutshell, Hohfeld identified that there are always two sides to a legal relationship which he called “correlatives” If one person has a legal right somebody else must have a corresponding duty. He went further and identified four distinct pairs of necessary relationship,
So we have :-
Right – Duty
Privilege – No Right
Power – disability
Immunity – Liability.
To discuss a matter in Hohfeldian terms, you keep within those language rules; this is especially the case when considering “privilege” which is purely used in an analytical sense and has no class or wealth connotation. If you cannot clear your mind of other preconceptions about these words – stop reading now,
Looking at the migration issue through such a lens we begin to see more clearly where the current problems – and resentments arise.
In Hofeldian terms British Citizenship conferred a “privilege”. If you were born here, nobody had any right to deny it to you. We legislated for others to petition to enjoy that “privilege” , by citizenship application or marriage; the “powers that be” had an absolute discretion to grant or withhold the privilege . Those petitioning were under disability; they might have a right to be considered, and the State might have a duty to consider the application, but it was the State alone which had the arbitrary legal “power” to reject, and a failed applicant was under “disability” in terms of challenging the discretion,
Within such a legal environment, the Executive, guided by the Legislature, would have enjoyed uncomplicated discretion in cases such as the present immigration crisis.
Provided the electorate approved, the Government could have been as mean or as generous as it wished with a true sense of control over the problem. The numbers who entered the country and the character thereof was a decision for the UK and above all for its peoples. Those peoples have been historically very welcoming and generous as Kenan Malik has written about here .
Yet we are not in the same age when such generosity was exercised, we are now in the world of the EU, and the Human Rights Act, and that makes a huge difference in terms of how confidently and quickly the Prime Minister feels able to act.
As Nigel Farage constantly points out – perfectly accurately – the Prime Minister is no longer in charge of the borders. The ( Hohfeldian ) “privilege” of the right of residence has been greatly extended, it has certainly been ceed to every person within the European Union – hundreds of millions of people.
Some hundreds of thousands have already exercised their “privilege”. We may not be accustomed to using the word in that context but it is le mot juste.
The UK is currently attractive to our EU neighbours because its language is the second language of many, its economy is thriving, it society diverse and welcoming; there is stability and residents enjoy a higher degree of welfare than many in the EU. A welfare claim is also a “legal privilege” – the Government has “no right” to withhold it from anyone within the extended class of those “privileged” in this way. There is the current irony that David Cameron has created more jobs for the French than Francois Holland.
There is currently no lawful mechanism for removing or restricting the privilege currently enjoyed by all EU residents.
Yet that “privilege” in not limited to those born or currently residing within the EU.
As Douglas Carswell has written, anyone currently admitted by any of the member states to residence, automatically joins the numbers of those with a potential claim on the British State and economy. What he does not add is that any dependants subsequently passported to residence, via s 8 of the Human Rights Act ” Right to Family Life”, must also be afforded the same status. If a newly arrived resident has a significant family tie. there is a duty to respect it. How many may subsequently claim that right is both unknown and unknowable, so people worry.
The class of those entitled to insist upon the privilege of residence was further extended under both the asylum and refugee conventions of the UN and Article 2 of the Human Rights Convention to anyone from a war zone,
Through those legally enforceable rights, the class of those who are “immune” from British Government control, and can make the British Government and taxpayer “liable” for their welfare is equally unknown and unknowable.
Every person who can reach the UK from a country where an oppressive Government infringes Human Rights has the “right” to claim asylum and the Government has a “duty” to grant it. Legal Aid must be afforded those whom it challenges because the right under dispute is an “absolute” one and access to the Courts must be resourced.
An “asylum seeker” has a well founded fear of his or her own Government. It encompasses persecution by reason of race, religion, nationality, political belief or membership of any political group. Sadly, the numbers of those afflicted is not in short supply,
A refugee is an asylum seeker who has fled his or her homeland through unrest civil war or natural disaster . a useful exploration of the definitions and all too frequent confusions, by Mr Harry Mitchell QC is to be found here .
It does not take much reflection to appreciate that the class of those who are or maybe entitled to the privilege of UK residence and the ancillary rights and entitlements that go with it is vast. It certainly encompasses not only all 4 million Syrian refugees but also every gay person in Uganda, Pakistan, Iran ( to name but a few), every atheist in a Muslim State and every woman at risk of sexual violence from Boko Haram or Islamic State. It encompasses many citizens of countries which sit on the UN Human Rights panel which only goes to prove that satire is not dead.
We may want – and choose- to help every one who arrives; we are a generous people as the response to the single picture of the drowned Syrian child testifies. yet it is rather disingenuous to pretend that those who worry about numbers do not have a point.
That point primarily arises out of the legal context in which these crises arise which makes it different from virtually every other mass movement that preceded it.
When Huguenot, Irish and Jewish and Commonwealth migrations occurred in previous centuries, there was not the same context of enforceable “rights”,” privileges” “immunities” etc – nor indeed was there a welfare State of such attraction to the migrant choosing where to go. There was not the means by which the attractions of the UK were so graphically and instantly available.
This context matters when comparing the current situation with the past. If the Government appears to hesitate before acting, given the enormity of the problem and consequences of getting it wrong, Brother Ivo will be slow to criticise.
In the context of the General Synod Climate Change debate, much weight was attached to “boiling frog syndrome” : we were told that “by the time you recognise the severity of the problem it is too late to do anything about it”.
One is bound to enquire whether the same principle applies, uncomfortably, in this debate.
The culture, attitudes, values, and institutions of the United Kingdom have evolved over centuries. Despite many disagreements between us, we have a modus vivendi which many in the world find either attractive or at least convenient to enjoy. It has not proved as easy to replicate in other cultures as enlightened rationalists once assumed it would be.
Our current legal structures mean that we afford equal protection to the scarred woman fleeing an acid attack, the persecuted Christian, the gay African – and many who are in sympathy with the perpetrators of such persecution. We have amongst us those who perpetrated genocide, resisting exclusion because they might face the death penalty. We have advocates of the the values and systems that caused the crises ready to add such diversity to our public life.
We may decide that is a price worth paying, but it is hard to think that the debate about it is not worth having.
At the very least, it may be appropriate to introduce into our public considerations the notion that this current crisis might cause us to reconsider whether our legal structures are fit for the purpose of maintaining Britain as a place of welcome and refuge. Remember the frog.