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Beyond Justice: The Consequences of Liberalism for Immigration Law

Published online by Cambridge University Press:  09 June 2015

Catherine Dauvergne
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In November 1994 the Canadian government released its Immigration Plan for 1995 and an immigration and citizenship strategy mapping policy direction until the year 2000. This strategy, developed after extensive public consultations, was the government’s response to increasingly contentious public discourse about immigration. The 1994 document was the government’s attempt to reorient Canadian immigration law and policy. The 1996 and 1997 Immigration Plans, tabled in November 1995 and October 1996 respectively, are consistent with the five year plan announced in 1994, demonstrating that the change of direction set out in 1994 has met at least some of the government’s objectives.

This paper assesses the reorientation of Canadian immigration law contained in the 1995 Immigration Plan and accompanying documents. Much of the public debate about immigration concerns whether current immigration levels and policies are fair, or just. As Canada is a liberal society, it is appropriate to begin the search for standards of fairness—or justice—in liberal theory. But because liberal theory presumes a community and then explores theories of fairness and justice within that community, it does not yield a standard of justice which is useful for assessing changes in immigration law. Nor, I argue, can liberalism’s tenets be extrapolated to address this question. This conclusion leads to insights about the role of immigration law in liberal society and points to particular ways to assess this law. While other theoretical paradigms may contain ways of determining the fairness of immigration law, such paradigms are less useful in the Canadian setting, where liberal discourse is hegemonic and hence is the language in which debates about immigration law must take place to be immediately politically relevant. The first half of this paper examines liberal theory’s failure to address the justice of immigration laws, and evaluates attempts to extend classical liberalism to meet this challenge.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 10 , Issue 2 , July 1997 , pp. 323 - 342
Copyright
Copyright © Cambridge University Press 1997

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References

1. For an overview of this literature see W. Kymlicka Recent Work in Citizenship Theory (Toronto, ON: University of Toronto Faculty of Law Legal Theory Workshop Series, 1991).

2. S. Hall & D. Held, “Citizens and Citizenship” in S. Hall & M. Jacques, eds., New Times: The Changing Face of Politics in the 1990s (London: Lawrence and Wishart, 1989) 173 at 175.

3. Canadian immigration law also addresses the question of who will be admitted temporarily to visit, work, or study. I do not address these issues, nor are they a significant element in the current public outcry about immigration to Canada.

4. Brubaker draws the distinction this way; “Questions of membership differ from questions of entry…. Problems of membership arise, rather, for persons whose residence and participation in the economic and social life of a country have engendered significant ties to that country.” W.R. Brubaker, “Introduction” in W. R. Brubaker, ed., Immigration and the Politics of Citizenship in Europe and North America (Lanham, MD: University Press of America, 1989) 1 at 14.

5. For a discussion of the issues this raises see D. Galloway “Strangers and Members: Equality in an Immigration Setting” (1994) 7 Can. J. of L. & Juris. 149 at 151–52.

6. Will Kymlicka’s work is an important example of this. He examines the consequences for members’ tights, duties and opportunities to participate of having multinational and polyethnic states. See “Liberalism and the Politicization of Ethnicity” (1991) 4 Can. J. of L. and Juris. 239 and Liberalism, Culture and Community (Oxford: Clarendon Press, 1989).

7. J.H. Carens, “Aliens and Citizens: The Case for Open Borders” (1987) 49 The Review of Politics 251 at 251.

8. R. Dworkin, Law’s Empire (Cambridge, MA: Harvard University Press, 1986) at 212.

9. Ibid, at 209.

10. Ibid, at 208.

11. J. Rawls, “Justice as Fairness: Political not Metaphysical” (1985) 14 Phil. & Publ. Affairs 223. Rawls asserts that he is clarifying the position taken in his seminal work A Theory of Justice (Cambridge, MA: The Belknap Press of Harvard University Press, 1971).

12. Ibid, at 233.

13. D. Galloway, “Liberalism, Globalism, and Immigration” (1993) 18 Queen’s L. J. 266 at 271.

14. See “Aliens and Citizens: The Case for Open Borders”, supra note 7; “Membership and Morality: Admission to Citizenship in Liberal Democratic States” in Brubaker, ed., supra note 4 at 31; “Refugees and the Limits of Obligation” (1992) 6 Publ. Affairs Quart. 31; “Who Belongs? Theoretical and Legal Questions About Birthright Citizenship in the United States” (1987) 37 U. of Tor. L.J. 413.

Galloway describes three categories of “globalism” claiming liberal roots, all of which support a particular formulation of the open borders position. Ibid, at 271–81. Galloway uses Carens’ work as the foil for his arguments because “while most global theorists have merely touched upon the subject of immigration, Carens tackles it head on and explores in depth many related side-issues.” (Ibid, at 270).

15. Carens, supra note 7 at 264.

16. Ibid, at 265. Galloway takes issue with Carens’ adaptation of Rawls’ original position and posits his own version in supra note 13 at 282–99.

17. Ibid, at 285.

18. “Membership and Morality: Admission to Citizenship in Liberal Democratic States”, supra note 14 at 31. Carens deals with the case of refugees in “Refugees and the Limits of Obligation”, supra note 14.1 believe refugees are imagined differently than other immigrants and are consequently the easiest case for liberals to agree upon. I have therefore concentrated my analysis on Carens’ work on immigrants.

19. Supra note 7 at 269.

20. This is not to say I agree with all other aspects of his argument. I would reject, for example, his premise that opening borders can be analogized to extending the franchise. Franchise is a question of political equality within society which liberal theory is well prepared to deal with. This point is, however, the most important of my disagreements with Carens.

21. I find Carens’ description of citizenship in a Western liberal democracy as the modern equivalent of feudal privilege (supra note 7 at 251–52) to be particularly evocative.

22. I draw on three of Galloway’s recent articles: “Three Models of (In)equality” (1993) 38 McGill L. J. 64; “Liberalism, Globalism, and Immigration” (1993) 18 Queen’s L. J. 266 (also supra note 13); and, “Strangers and Members: Equality in an Immigration Setting” (1994) 7 Can. J. of L. and Juris. 149 (also supra note 5).

23. M. Walzer, Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic Books Inc., 1983), especially Chapter Two: Membership.

24. Supra note 13 at 299.

25. Supra note 13 at 295. This proposition resembles Dworkin’s community of principle, which is modelled on “fraternal association”, supra note 8 at 206–16.

26. Supra note 13 at 294–95.

27. Ibid, at 298.

28. Ibid, at 302. Galloway argues that the liberal commitment to equality is consistent with drawing an “us” and “them” boundary. He states, “The important matter to note is that liberalism can only recognise the status of self by also recognizing that of other. The two form an essential dichotomy. The decision by some to re-define self by means of interactions with some others is not a distributive decision, which lessens the status of remaining an other” (ibid, at 301). While this is not the central point I wish to make about Galloway’s work, I disagree with him on this point. The boundaries we necessarily draw so that we can order our world tend to obscure our perspectives and hide our value judgments. As such, boundary drawing builds differences which support distributional inequalities once we leave the theoretical plane. See M. Minow, Making All the Difference: Inclusion and Exclusion in American Law (Ithaca, NY: Cornell University Press, 1990).

29. Supra note 5 at 157. He argues in “Three Models of (In)equality”, supra note 22, that each of these paradigms has been reflected in Supreme Court of Canada equality jurisprudence.

30. Supra note 5 at 165.

31. Ibid, at 167–68.

32. Ibid, at 169–72.

33. Both in common sense and in political theory, equality and justice are closely related. Galloway writes of equality and I have chosen to treat this aspect of his work as representative of what he would argue about claims of justice. I believe this is consistent with his arguments.

34. The most important change in the refugee program was to separate it from the immigrant program. Other announced goals of changes to the refugee program were primarily connected to strengthening existing provisions such as; the Women at Risk Program, private sponsorships, and bilateral agreements. Proposals for heightened international cooperation were couched in very broad terms and aimed at conditions outside Canada. Into the 21st Century: A Strategy for Immigration and Citizenship (Hull, PQ: Minister of Supply and Services, 1994) at 43–54 [hereinafter 21st Century].

35. The Women at Risk Program was initiated shortly before Galloway’s argument was published. This program does address one of his primary concerns, however Audrey Kobayashi argues its impact is limited. See “Challenging the National Dream: Gender Persecution and Canadian Immigration Law” in P. Fitzpatrick, ed., Racism, Nationalism and the Rule of Law (Aldershot, UK: Dartmouth Press, 1995) 61.

36. The Canadian government’s target range for immigrant admissions in 1997 is 168,900 to 187,700, the target range for refugee admission (including private sponsorships) is 26,100 to 32 300. For details of the categories which make up these targets see the Annual Immigration Plan tabled in the House of Commons October 29, 1996.

37. Galloway, supra note 13 at 267–68.

38. I consider this misleading rather than false because the absence of Canada’s First Nations from this statement reflects many societal truths while obscuring the historical presence of First Nations. The absence of First Nations’ discourses about immigration should be the subject of further inquiries.

39. “A Statement From the Honourable Sergio Marchi” A Broader Vision: Immigration and Citizenship Plan 1995–2000 Annual Report to Parliament (Hull, PQ: Minister of Supply and Services Canada 1994) at ii [hereinafter Broader Vision].

40. Chiarelli v. Canada (M.E.I.) (1992), 16 Imm. L.R. (2d) 1 (S.C.C.) at 20.

41. R.S.C. 1985, c. I-2.

42. D. Galloway, supra note 5.

43. This is, of course, the most restrictive and negative reading possible. However, rulings that deportation is not a penalty and s.7 of the Canadian Charter of Rights and Freedoms (guaranteeing life, liberty and security of the person unless deprived of such according to principles of fundamental justice) does not apply to the process surrounding it (Chiarelli, supra note 40) and that immigration detention conditions are permissible (see S. Foster, “Immigration Detention” (1992) 8 J. of L. and Soc. Policy 107) suggest that my speculation is justified.

44. The Act has some incidental applications to Canadian citizens. Citizens have a right to enter and remain in Canada (s.4) which is also guaranteed in the Canadian Charter of Rights and Freedoms. Some of the offenses created by the Act (e.g., s.94) can apply to Canadians in some circumstances.

45. For a recent discussion of the difficulty of defining Canadian identity, see J. Webber, Reimagining Canada: Language, Culture, Community and the Canadian Constitution (Kingston & Montreal: McGill-Queen’s University Press, 1994).

46. 21st Century, supra note 34 at 12–13. While the consultations leading up to the act revealed a wide range of responses to a question about the “vision of Canada” that immigration should support, this summary is relatively accurate. See Immigration Consultations Report (Hull, PQ: Minister of Supply and Services 1994) at 16–24.

47. 21st Century, supra note 34 at 10.

48. Ibid.

49. Ibid, at 17.

50. Ibid, at 55.

51. Kobayashi, supra note 35 at 70.

52. “Identities” (1991)3 Yale J. of L. and the Humanities 97 at 112.

53. Kobayashi, supra note 35 at 71.

54. See supra note 41, at s.3.

55. Set out in Schedule I of the Immigration Regulations, 1978, C.R.C., as provided for in Regulations 8–11.1.

56. Supra note 41 at s.7.

57. The criteria are education, specific vocational preparation, experience, occupational demand, arranged employment/designated occupation, demographic factor (based on destination within Canada), age, knowledge of English and French languages and personal suitability.

58. Kobayashi writes of how immigration and immigration law reflects “re-imagining” of Canada’s national image {supra note 35 at 62–63). Re-imagining who we are necessarily involves re-imagining who are the others.

59. S. Hall The Hard Road to Renewal: Thatcherism and the Crisis of the Left (London: Verso, 1988) at 48–49. See also S. Hall & D. Held, supra note 2.

60. Described in The Hard Road to Renewal, ibid, at 49.

61. This process corresponds with that described by Hall, ibid, and by Hall & Held, supra note 2. Hall states in his Introduction “… I have tried to show how Thatcherism articulates and condenses different, often contradictory, discourses within the same ideological formation. It presupposes, not the installation of an already-formed and integral conception of the world, but the process of formation by which a ‘multiplicity of dispersed wills, with heterogeneous aims, are welded together’.” (original emphasis) at 10.

62. See for example A. Kobayashi, “Racism and Law in Canada: A Geographical Perspective” (1990) 11 Urban Geography 447, and D. Bagambiire “The Constitution and Immigration: The Impact of Proposed Changes to the Immigration Power Under the Constitution Act, 1867” (1992) 15 Dalhousie L. J. 428.

63. A Broader Vision supra note 39 at 14.

64. Family itself is redefined, eliminating parents and grandparents, thereby permitting the statement that all family class applicants will still be accommodated. On the problems of defining family in the Immigration Act see D. Mcintosh, “Defining ‘Family’—A Comment on the Family Reunification Provisions in the Immigration Act” (1988) 3 J. of L. and Soc. Policy 104.

65. 21st Century, supra note 34 at 39–41.

66. Ibid, at 28.

67. Ibid, at 22.

68. Bagambiire, supra note 62 traces the history of this linkage.

69. These are discussed by Kobayashi, supra note 62.

70. 21st Century, supra note 34 at 26.

71. Ibid, at 27.

72. A Broader Vision, supra note 39 at 26–27.

73. Ibid, at 29.

74. See D. Cooper, “The Citizen’s Charter and Radical Democracy: Empowerment and Exclusion Within Citizenship Discourse” (1993) 2 Soc. & Legal Stud. 149 at 150.

75. 21st Century, supra note 34 at 54–63.

76. This argument is developed by Iris Young in “Polity and Group Difference: A Critique of the Ideal of Universal Citizenship” (1989) 99 Ethics 250, where she argues that universal citizenship is valuable when it promotes universal inclusion and participation in public life but that individuals should not be required to adopt a universal perspective in order to participate and that not all laws should apply to all citizens in the same way.

77. See Cooper’s discussion of Chantal Mouffe’s work, supra note 74 at 161–66.

78. 21st Century, supra note 34 at 25.

79. Ibid, at 42. The plan to limit the number of family members who are eligible for acceptance by Canada and then allowing individuals to choose whom to sponsor is particularly insidious double-speak. It will, in worst case scenarios, force Canadians to decide which members of their family will be able to escape oppressive social and economic conditions.

80. See S. Hall & D. Held, supra note 2 and C. Mouffe, “Democratic Citizenship and the Political Community” in C. Mouffe, ed., Dimensions of Radical Democracy: Pluralism, Citizenship and Community (London: Verso, 1992) 225.

81. Cooper, supra note 74 at 168.

82. Kobayashi, supra note 35 at 2. See also Kymlicka “Liberalism, and the Politicization of Ethnicity”, supra note 6 at fn 36 who argues that Canada’s ‘ethnic mosaic’ meant merely that immigrants had a choice of which dominant culture to assimilate with.

83. While pointing out its limitations, Kobayashi applauds this policy as an international precedent.

84. 21st Century, supra note 34 at 17.

85. Ibid, at 10.

86. Ibid, at 28.

87. B. Parekh, writing of immigration to Britain notes that the ethnic make-up of post-World War II immigration to Britain has been markedly different from previous immigration and that British society has reacted negatively to this. “British Citizenship and Cultural Difference” in G. Andrews, ed., Citizenship (London: Lawrence and Wishart, 1991) 183 at 185–86.