Immigration Policy from Scratch: The Universal and the Unique
Legomsky, Stephen H., The William and Mary Bill of Rights Journal
Immigration, as all are surely aware, is the subject of feverish debate in countries throughout the world. From traditionally high-immigration nations like the United States, Australia, Canada, and Singapore to the traditionally homogeneous, lowimmigration societies of Japan and South Korea - as well as in States as different as New Zealand, Israel, and the Member States of the European Union - governments are actively rethinking previously sacrosanct tenets of their immigration policies.1 In many ofthose countries, the impetus for immigration reform largely reflects declining birth rates among the native-born, aging populations, and thus a felt need for young workers - especially professional and skilled workers.2 At the same time, those efforts have hit a wall of social, cultural, economic, and environmental resistance. Meanwhile, the new mobility fostered by modern advances in technology, transportation, and information have only enhanced the appeal of immigration for people adventurous and motivated enough to stake out new lives in distant and unfamiliar lands.3 All of this has only made the immigration issue more pressing.
In this world on the move, migration and globalization are requiring all of us to think creatively about how to encourage, how to restrain, and how to manage international migration. As some policymakers draft new immigration legislation from scratch and others revisit existing law, it seems time to think generically about the overall shape and the critical elements that make up a comprehensive immigration policy.
The premise of this Article is that there exist certain universal issues that immigration policymakers in every receiving country must address, certain decisions that will always have to be made. In saying this, I appreciate that the countries of the world come in vastly different shapes and sizes. They have different histories, cultures, forms of government, social structures, economic realities, age and labor demographics, values, and ultimately even different missions. All of these national attributes, and others, rightly influence a nation's immigration policy.
Several disclaimers, therefore, are required. First, I make no claim of completeness. No doubt there are additional universal issues or decisions. Second, conversely, there will always be additional issues that are not universal - issues that are unique to the host country. Third, I stress that I am positing only universal questions, not universal answers. How a country chooses to resolve these issues will reflect all the relevant characteristics that make the country distinctive.
This Article, then, provides a kind of immigration policy checklist or roadmap. It is offered as a starting point for anyone involved in either the formulation or the wholesale alteration of a country's immigration policy. Reflecting my perception of the key pieces of the immigration puzzle and how they fit together, this Article urges a comprehensive approach. This means simultaneously addressing not only the narrow question of who should be admitted into the country's territory, but also several other subjects that are joined at the hip - citizenship, integration, illegal immigration, and expulsion.
I. THE PRELIMINARIES: DEFINING THE MISSIONS
A visionary immigration policy demands some conscious philosophical choices. Policymakers need to think hard about what they see as the missions - and I use the plural deliberately - of their immigration policy. At the highest level of generality, is the goal solely to maximize the overall welfare of the country's existing and future citizens, as is often assumed? Or, is there a moral obligation to take into account the interests of the prospective immigrants as well? Finally, what if those two sets of interests conflict? On these moral questions there is no consensus.4
But even an exclusive focus on the national welfare of the receiving State and its citizens leaves multiple, sometimes conflicting, missions to reconcile. …