Poverty or bullets?

There are many parts of immigration law and policy that are morally problematic, but one that seems to have drawn less attention than others is the distinction between political refugees and other migrants, sometimes referred to as ‘economic migrants.’

The US State Department defines a refugee as “someone who has fled from his or her home country and cannot return because he or she has a well-founded fear of persecution based on religion, race, nationality, political opinion or membership in a particular social group or political opinion.” According to the US Citizenship and Immigration Services, refugees are of “special humanitarian concern.”

An economic migrant can be defined as someone who has fled from his or her home state for other reasons, such as extreme economic hardship, poverty, or famine. These individuals are often perceived as foreigners who are seeking prosperity or a better life for themselves and their children. When a state has to limit the number of foreigners granted admission, priority is usually given to political refugees over other migrants. The reason for this may be that the needs of political refugees are more urgent because they lack even the basic good of membership in a state.[1] Or, the reason may be that, because political refugees are denied certain basic rights by their state of origin, a liberal state that believes that everyone should be protected by certain basic rights ought to extend these rights to those who are stateless and therefore unprotected.[2][3] Whatever the reason, many states extend to refugees special consideration and prioritize them over other migrants seeking admission.

I want to challenge this practice of giving priority to political refugees. This is not because political refugees do not deserve special consideration, but because other migrants are equally deserving. 

Here are two lines of argument.

Argument 1

Henry Shue argues that the distinction between a political refugee and an economic migrant is not as sharp and significant as it may appear. If the state is concerned about how best to use its scarce resources, it doesn’t make sense to prioritize political rights because subsistence rights are equally basic and satisfying subsistence rights do not involve any more resources than the satisfaction of political rights.

1a. Applying Shue’s argument for a basic right to subsistence rights, we can say:

(1) Everyone has a right to freedom of association.
(2) Minimum economic security is necessary to enjoy one’s freedom of association.
(3) Therefore, everyone also has rights to minimum economic security.[4] 

Shue defines subsistence or ‘minimum economic security’ to mean “unpolluted air, unpolluted water, adequate food, adequate clothing, adequate shelter, and minimum preventive public health care.”[5]  Subsistence rights are basic too.

1b. While some assume that the satisfaction of subsistence rights is more onerous or less urgent, this assumption is flawed. Some may believe that the satisfaction of subsistence rights involves positive duties, while respect for political rights, especially security rights, involves only negative duties. As Shue explains, both subsistence and security rights involve three kinds of correlative duties: not to destroy or deprive, to protect, and to provide. Sometimes all that is needed to satisfy a person’s subsistence rights is not to destroy that person’s capacity to be self-supporting. Shue discusses several cases of foreign intervention in developing countries as examples of a violation of even the duty to avoid deprivations. Contrary to the popular assumption that security rights involve only or primarily negative duties, we can think of all that is required to ensure national security or public safety: the training and maintenance of a police force; providing courts, lawyers, and prisons; and developing an entire system of criminal law and punishment. While it is easy to assume that one can satisfy another person’s security rights by simply not harming her, the reality is that this involves the provision of many costly resources. 

The deprivation of security rights is usually perceived as more urgent. Consequently, when one state deprives a person of his or her security rights, that person enjoys the right to asylum in another state. But what about a refugee who is fleeing a regime that, deliberately or otherwise, deprives him or her of economic security—i.e., subsistence? In applying Shue’s analysis, the distinction between political refugees and economic migrants is not as sharp and significant; it cannot do the work of justifying the prioritization of political refugees.

2. The second line of argument is this: Even if we accept the current definition of a refugee under US and international law, proper administration of refugee law depends crucially on fair decisions regarding who qualifies under the definition. But when it comes to economic migrants, these decisions are not fair. This is basically the argument offered by James Nickel.[6]

Writing in the mid-80’s, Nickel noted that the Reagan administration’s position on those applying for asylum from certain states in Central America was that these applicants were not motivated by fear of persecution, but merely fleeing poverty and seeking better lives for themselves and their families. Nickel specifically observed that the Reagan administration generally denied refugee status to applicants for political asylum from places such as El Salvador. Only 3% of the applications from El Salvador were granted, as compared to 14% from Nicaragua and 30% from Poland.[7] The State Department’s decisions on applications for asylum may reflect, rather than a fair application of the qualification, US foreign policy concerning the state of origin, including whether the US has sponsored or supported the regime (see Dirty Hands). Rather than a fair administration of law, the decisions are political and sometimes discriminate against Central American and Mexicanmigrants. 

Why do I think this is such an important part of the immigration debate? Because if we had recognized these so-called ‘economic migrants’ as entering lawfully in the first place, our current mess might have been avoided.   

Chong Choe-Smith

Department of Philosophy

Sacramento State

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[1] Michael Walzer, Spheres of Justice (New York: Basic Books, 1983).

[2] Stefan Heuser, “Is There a Right to Have Rights? The Case of the Right of Asylum,”

Ethical Theory and Moral Practice 11 (1): 3-13 (2008).

[3] The reason may be a legal one; the 1951 Refugee Convention, the 1967 Refugee Protocol, and the US Refugee Act of 1980 require certain protections including the principle of non-refoulement, which prohibits the return of a refugee to his state of origin where he or she might be threatened on account of his race, religion, nationality, membership in a particular political group or political opinion.

[4] See Shue, Basic Rights (Princeton, N.J.: Princeton University Press, 1980), p. 31.

[5] Shue, supra, p. 23.

[6] James Nickel, Sanctuary, Asylum and Civil Disobedience, In Defense of the Alien 8 (1985): 176-187.

[7] Nickel, supra, at p. 178, fn. 4.