Golden Visas, Dreamers, & Ethics in Immigration, with Ayelet Shachar



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To read Ayelet Shachar's essay in the spring 2018 issue of Ethics & International Affairs, click here.

Um eine verkürzte Version dieses Interviews auf Deutsch zu lesen, klicken Sie hier.

JOHN KRZYZANIAK: Hello, and welcome to another episode of the Ethics & International Affairs author interview series sponsored by the Carnegie Council. I'm John Krzyzaniak, assistant editor here at the journal, and joining me over the phone today is Ayelet Shachar, who is professor of law and political science at the University of Toronto and director of the Max Planck Institute for the Study of Religious and Ethnic Diversity.

Ayelet, thanks for taking the time to speak with me today.

AYELET SHACHAR: Thank you, John, for this invitation. I have been a big fan of Ethics & International Affairs for years, so it's really quite a pleasure to have this opportunity to speak with you and also to connect to your broader audience.

JOHN KRZYZANIAK: Thank you. That's very nice of you to say.

Our topic today is ethics in immigration. Immigration is obviously a very important and contentious topic. When I think about immigration and immigration debates in the United States, many of these debates revolve around whether certain immigrants are good for our country in some sort of narrow, self-interested way. People might debate whether a particular group of immigrants will benefit our economy in the long term, whether certain immigrants will pay into social safety net programs more than they draw on them, or maybe whether certain groups have higher or lower rates of crime than the native population, etc. These questions are no doubt important, but it seems like they are mostly devoid of moral content, they are more like empirical questions.

Today we want to actually set those aside and focus instead more on the purely ethical questions. My first question for you is: What are some of these major ethical questions, and what questions are people arguing over in immigration ethics, and maybe what are some common answers to those questions?

AYELET SHACHAR: I would like to highlight three main questions that have occupied me and many other scholars in the field in recent years. In introducing these questions I'll be wearing two hats, so to speak, that of the lawyer and that of the theorist because I think we really need both perspectives if we wish to make any progress in this difficult field.

The first question is the famous, "Who belongs?" question, which we might rephrase as, "Who gets in and according to what criteria?" I will refer to this question as the "access" question. It has quite significant ramifications for democratic theory and for global justice debates, but even if we just explore it for the more technical legal side of citizenship and immigration law, it's quite clear that if you lack access, that is, if you can't get into a particular country, it will be very difficult for you to establish the required links to that particular community if you ever wanted to become a full member. If you came in without permission in the current restrictive environment, it will be close to impossible for you to adjust your status. That is really the first question, the access question.

The second main theme that has occupied scholars in the field is the question that we might refer to as the "civic integration of immigrants." Unlike the preliminary access question, which determines who gets in, here we're really zooming in and exploring the situations of those who are already on the territory, that is, people who are within the boundaries of the state. The main question encountered here is what level or what kind or what degree of integration a host society can legitimately ask of those who have entered its jurisdiction. Conversely, from a different perspective, you might ask what degree of accommodation or leeway might newcomers legitimately expect if they wish to preserve or express certain aspects of their cultural or religious identity, for example.

If you think about immigration as a two-way street, which is the standard way to think about immigration, then we expect immigrants to change, but also the societies into which they have entered also change, and it is really that latter aspect which has become a major source of contention and anxiety in a good number of societies around the world.

The third and final question that I will mention refers to ongoing disagreements between proponents and opponents of open-versus-closed borders. This has been a longstanding debate, a flourishing debate, especially in political and legal theory, but in recent years it has proven to be somewhat detached from the kind of deep political and often exclusionary pressures that we are witnessing on the ground.

These pressures appear to affect almost all categories of would-be entrants, people who might wish to enter, so people who are facing the initial access question, and really the only kind of exceptions that we are seeing are the super-wealthy, who are increasingly benefiting from fast-track access, whereas everyone else seems to be facing much more restrictive kinds of rules and regulations.

JOHN KRZYZANIAK: You mentioned the super-wealthy. You wrote an essay for the Spring 2018 issue of Ethics & International Affairs, and the essay is titled, "The Marketization of Citizenship in an Age of Restrictionism," which is a bit of a mouthful. But the essay is about "golden visa" programs like the EB-5 visa in the United States or the Tier 1 (investor) visa in the United Kingdom. Can you tell us a little bit more about these golden visa programs?

AYELET SHACHAR: Of course. We are really witnessing globally quite a surge, and what I would refer to as tailor-made, exclusive, and expedited pathways for the world's super-rich to acquire citizenship. They can acquire citizenship now quickly and simply without any disruption to their life, and this is the way that a leading law firm has put the process.

The details may vary across different countries but these golden visa programs rely on a shared premise. That is, they create a link between money transfers in large quantities and an expedited and simplified procedure for acquiring citizenship, and here it is literally "acquiring" citizenship. In certain cases, these new citizens, people who have benefited from these golden visa programs, do not even need to set foot in their new home country.

Clearly something dramatic is going on here. For me, as a scholar of citizenship and migration, what is fascinating to explore is the fact that states themselves, governments themselves, seem to be reshaping the answer to the first question that I mentioned, the who gets in, the access question. They seem to be saying something along the following lines: "Bring us your wealthy." On civic integration, the second question, they say, "If money is the currency for access, then we are more than willing to waive or bypass the standard civic integration requirements that otherwise are jealously enforced," and indeed they are becoming more and more restrictive or demanding in recent years.

In terms of the sums involved, as you know, John, they're quite significant. You mentioned the EB-5 visa, the American golden visa. This visa formally requires an investment of $1 million. In practice, typically that amount is reduced to $500,000 if you invest in specifically designated areas.

In the United Kingdom, the Tier 1 (investor) visa requires an even higher sum. The minimum investment there is ₤2 million, and if you invest that, you establish what in UK law is referred to as a "leave to remain," basically a right to stay. The UK Tier 1 category also has an interesting mechanism built into it: the more money you pour in—the greater the investment—the shorter the time that the investor has to wait to establish their residency.

Just to give you an example: If someone is wealthy enough to have, say, ₤10 million that they can invest in the United Kingdom instead of just the standard minimum ₤2 million or ₤5 million, they will secure permanent residency within two years instead of the standard five. So there seems to be a trade-off here: the more you pay, the less time you need to wait to establish your membership goods. Similarly, if you bring in the currency as money, if you bring in investment, then the standard civic integration, linguistic requirements, and residency requirements are waived. That seems to be the basic logic of these programs.

Just to give you a few other examples: In Europe investors can gain residency in countries such as Spain or Portugal for roughly €500,000, again coupled with extremely reduced minimum stay requirements, so again we see that kind of a trade-off.

Just to provide one last example, which was a controversial example in Europe, Malta, which is the smallest Member State of the European Union, has gone a step further beyond these programs that I have just described, putting not just its residency for sale, but actually its passport per se in exchange for what was in the law referred to as a "donation" or an investment of a little over €1 million.

Given that citizenship in the European Union is derivative, it means that if you actually purchase Maltese citizenship, you're also gaining a gilded backdoor to establish and to gain a European passport. To some extent here we're seeing an unusual kind of structure where a country is not only selling its own passport but really an easy-pass to European citizenship, and this occurs precisely at the same time that Malta and other European countries are putting tremendous resources into border control and into "closing the door," so to speak, making it harder for people who are in dire need of international protection, such as refugees, to get in. So we're seeing the two processes occurring simultaneously, and obviously this in and of itself raises some significant ethical questions.

JOHN KRZYZANIAK: You're getting a little ahead of me because you're already pointing to some of these really interesting and problematic tensions.

It sounds like golden visa programs from what I can tell were originally aimed at solving some of the questions I mentioned at the very beginning about making sure that immigrants are "high value" and that maybe they will bring some long-term economic benefits to whatever country they seek to settle in to gain permanent residency or citizenship.

What are some of the other problems maybe that you haven't mentioned yet that you see with golden visa programs, either on the ethical side or referring to some of the questions I mentioned at the beginning?

AYELET SHACHAR: These are actually great questions and very pressing questions.

I would say that for me—and again this is my own perspective. You can take different angles on this. You can think about this as an economist, as a theorist, and as a lawyer. I take here the angle of thinking about this as a window to explore the kind of deeper transformations that we are witnessing in the world in relation to the ideal and institution of citizenship, and these golden visa programs become very revealing and really quite fascinating.

I also want to point out that for some people the main interest is that the individuals who purchase these golden visas or golden passports—and I can see why they would have an interest in that, but for me the more crucial question is trying to understand why and also how governments, that is, our public trustees, are now willing to commodify a core aspect of sovereignty and self-determination by putting visas and passports for sale.

I already alluded to one major ethical problem with these golden visa programs, and this is a concern that arises in a world like our own, that is, a world where there are high levels of wealth inequality both across borders and in countries, and here the concern is that these programs exacerbate inequality. Obviously they do not create these inequalities, but golden visa programs exacerbate rather than alleviate the kind of impact of preexisting inequalities, and they do so because they provide preferential treatment or preferential mobility opportunities to the global 1 percent. That would be one line of argument or critique that you could raise.

A second set of concerns we might highlight or mention are concerns that deal with the intrusion of the market into the political sphere. This is an interesting introduction of market processes into the political in the sense that we're dealing with the heart of the sovereign act of defining who belongs, again referring to the first question that I mentioned earlier. Here some economists might say: "Finally! We finally got to the wisdom of introducing a market mechanism," which they might argue is a better mechanism than other distributional or allocational ways of deciding who should get in and who should stay outside.

But if you take citizenship to track something which is different—it's not just economic relations, it's political relations and the special bond between an individual and her fellow citizens and their relationship to a given government—or if you think about it as a civic bond, then I think the picture seems a little bit more problematic, especially given that we might want to say there is something unique about citizenship as a political relationship, and we might want to maintain that as the core rather than shift it into a host of other possible relationships that we might think about.

We can think about emperor-subject, producer-consumer, supply and demand, master-slave. There are various relationships which are quite different from the kind of equality and participation that we hope having the status of citizenship would at least encourage and to some extent protect. If you turn citizenship or partly permit at the margins the opportunity of thinking about citizenship as a market good, you might be worried about these kinds of values and relationships which at least historically or at least in the literature on citizenship are seen as quite significant and unique.

The concern here is that if you detach any kind of meaningful connection between the individual and the political community that she joins—that kind of relationship could be extended residency, it could be an emotional attachment, it could be a personal commitment, there are various ways to think about this—again, all of these are seen as more political rather than just purely economic.

If you put a price tag on citizenship, the concern is not just that you're sending a clear message about who is wanted and who is seen as a valuable future citizen, but you're really recasting something deeper, something about political membership or membership in the political community which for many still remains the ultimate non-market good, and if you turn it into a purchasable commodity—and again, it is a very specific market, governments are still controlling access to citizenship—then the concern might be that you're transforming something deep and substantive about citizenship and you're giving too much to the economic side at the expense of the political side.

Just to push this point a little bit further, you can say that if the golden visas proliferate, we might come to a situation where we know "the price of everything but the value of nothing."

JOHN KRZYZANIAK: Right. Just as a side note, do the programs actually accomplish their purported goal of bringing economic investment or providing long-term benefits to the economy?

AYELET SHACHAR: This is interesting because the programs for which we have more data are the ones that ran for a longer time, the investor visa programs that, say, Canada and the United States have had. Interestingly enough, the kind of reports that we have—again, remember in both cases the idea was to stimulate the economy, it was job creation and capital investment by foreign investors and so on—both the United States and Canada, and again, these are recent governmental studies, the conclusion is that the government, which should have the best data, cannot demonstrate—and this is in reference to the United States—I'm quoting now: "The government cannot demonstrate that the program is improving the U.S. economy and creating jobs for U.S. citizens."

Canada, which has had a very successful investor visa program for a good number of years—it was canceled in 2014—that particular program as well was reported to have a very high regulatory cost, and it was determined to be economically inefficient. That again seems to be counterintuitive if you're bringing individuals who are high value, so to speak, who have a high net worth. But at least in the Canadian example the situation was such that many people actually acquired citizenship and then left, so in the long term they were really non-citizens. Rather, they had formal citizenship, but they were not active in any way either in the society or in the economy.

Of course, this is a generalization, some people did remain. But as a general trend, this was a trend that was identified at least in these two countries that have had a longer track record.

You might say that in a very small economy having the benefit of this foreign investment might provide a significant increase in the amounts that a government has at its discretion, which could be a positive thing. It could also potentially be negative if you don't have enough regulatory measures to ensure the control or distribution of these funds. I would say the economic record is definitely not as strong as the proponents would present it to be, but I think you do need to be much more nuanced in the sense of which countries, at what time period, what's the time horizon that you are taking into account.

JOHN KRZYZANIAK: Right. I want to shift gears if we can and talk about the group of people known colloquially as the "Dreamers" in the United States. Can you talk to me about what's interesting to you about this case?

AYELET SHACHAR: The Dreamers are a real special category. Of course, they have been at the center of attention in the United States. This group refers to individuals who were brought to the United States at a young age without authorization, and they have been in the country for a good number of years. Sometimes you will see the literature refer to them as individuals who were "raised as Americans." For many Dreamers, the United States is really the only country that they know as their home.

Despite the fact that the Dreamers have become part and parcel of American society, its culture, its economy, etc., they have no legal pathway to secure formal membership status in the United States, and without having the possibility to adjust their status there is no way for them to be protected from the threat of deportation that is hanging over their heads. If you don't have status in the United States, potentially you're subject to deportation. Definitely this is true now since Deferred Action for Childhood Arrivals (DACA), which was a program that partly protected the Dreamers, was rescinded.

What is interesting for my purposes here is that if we look at the Dreamers, clearly they have a connection or nexus to the United States. Nevertheless, they have no way to regularize their status. Again, this is not god-given, this is a policy decision that was made.

If you contrast the Dreamers who have such a deep connection to the country which, as I said, is the only country they know as home but have no right to stay with the EB-5 "Parachuters," individuals who have no real effective ties to the country but are nevertheless fast-tracked to membership, I just want to show this again as one of these moments where we can see something significant about citizenship is occurring here, and we might want to observe these kinds of inconsistencies. Arguably, you can say it also seems unfair to impose roadblocks that prohibit the Dreamers from becoming members while at the same time privileging the "Parachuters," who really have, at least at the beginning of the relationship, no connection to the country other than a wire transfer, the ability to press a button, and pass a significant sum of money across borders.

I think this is why to some extent if you want to think about citizenship as a political membership that has some kind of a genuine connection at its root which is the way which courts would put it, "real and effective links," etc., or ties rather than money transfers, then just looking at these two cases side by side is quite revealing.

JOHN KRZYZANIAK: Yes. Someone might look at the contrast that you just mentioned between a group that has a very deep connection to this society but can't gain membership versus the golden visa folks who don't have that connection but can gain access. Somebody might look at that and conclude that a lot of immigration policy just boils down to wealth. It seems like if you are very rich, you essentially get your own set of rules. Do you think that's a fair conclusion?

AYELET SHACHAR: I think descriptively you're correct to point out that it does seem that the very rich clearly have special rules that apply to them, and we have known this in different fields. I think it's quite new and to some extent surprising that we also see it in the heart of citizenship.

But even if we take that as a given—and I think again, given the number of countries that are now offering these various golden visas or golden passports, we have to take this as a serious development in the world around us—you could still step back and say: "Where did these rules come from? They did not fall from the sky."

As I mentioned earlier, they are written by government officials, they're introduced in many cases through official primary legislation or through secondary regulatory changes. They are enforced. These rules are enforced through our laws, through our public institutions.

I think once we call attention to these kinds of golden visa programs, which is really the reason I wrote this piece and published it in Ethics & International Affairs, then we could step back and ask: Do we think they are just? Do we think they are fair? Should we contest these rules? Should we challenge them? If so, how? Might we demand a better fit between rules that govern access to membership and some connection to the political community? Might we want to say that in the way that we think about immigration and inclusion of newcomers we might have to include some consideration for justice and equality and not just self-interest?

I think de facto most countries do wish to have a blend, and we might just say perhaps we need to rebalance the kind of distribution that we currently see in the different programs that we're witnessing across a very wide range of political communities.

JOHN KRZYZANIAK: This has been a fascinating discussion, Ayelet. Thank so much for speaking with me today.

AYELET SHACHAR: A pleasure. I look forward to hearing more from you and from your readers.