WORKSHOP ON ETHICAL ARGUMENTS FOR PROVIDING HELP TO UNDOCUMENTED MIGRANTS (Cologne, 31 August 2001)
Social workers and other people who are in their work
confronted with undocumented migrants have to deal with a suggestion of
illegality surrounding their work. Not only in Germany, where providing help to
undocumented migrants is penalized, but also in other countries it is not easy
for help providers to justify what they are doing, both in the eyes of the
public and in the eyes of the law. In this workshop we aim to discuss the
position of welfare workers in relation to the law, and to look for ethical
arguments that justify the help we provide for undocumented migrants.
In the following text, presented by Miss GILY COENE (Assistant at the Department of Philisophy and Moral Sciences, University of Ghent, Belgium) some thoughts are put forward from a Moral point of view, to give raise to discussion afterwards, and to supply the basis of ethical framework as we want to develop it for our ‘Book of Solidarity’ Project.
The
denial of (basic) care to undocumented immigrants
Moral
considerations in defense of certain rights & care for undocumented persons
Compliance
with regulations and laws: GENERAL REMARKS
It is
important to consider the history of migration policy as it exists now. By doing
this it becomes clear that there is an evolution in laws and rules. Some things
that were legal before are illegal now, and this has of course some ethical
implications. Things that were not put in question before, become subject of
discussion, and vice versa.
The
fall of the Iron Curtain brought about an increasing migration pressure, giving
raise to fears concerning hordes of people migrating from East to West. As a
consequence, immigration policies became more restrictive. There was an
evolution towards reinforcement of the State borders, the redefinition of
refugee categories, increasing internal surveillance and deportations.
What
happened in the field of immigration in Europe can probably best be described as
the ‘securitisation’ of
immigration in Europe. A conceptual, instrumental and institutional fusion of
immigration, illegality and criminality took place (cf. Schengen/Dublin/Third
Pillar). Gate-keeping mechanisms
have been installed at different levels: both external and internal (barriers on
access to basic necessities, rights and work), both official and non-official
control mechanisms have been established.
Recently
this evolution led to the criminalisation of the ‘assistance’ of
undocumented migrants. Governments (want to) impose high penalties on illegal
border crossing and illegal (over)staying. What they want to combat is the
development of migration as a business activity, the involvement of organized
crime, which implies severe risks
for immigrants.
However,
we see that external controls fail. The next step is that internal controls are
increased, there is an evolution towards the denial of care and penalisation of
(humanitarian) assistance. An important question that should be asked here is
whether this is the final step in the process? Is this going to stop illegal
migration?
A
difference should be made between assistance, smuggling and trafficking.
Different
definitions exist of smuggling and trafficking. It seems there is no clear
distinction, both concepts apply to illegal entry and illegal stay.
There
is a growing consensus however that ‘TRAFFICKING’
involves elements of coercion, deception, violence, intimidation, physical or
psychological abuse or exploitation. In this respect it can be considered both
illegal and unethical.
If the
‘free consent’ of the person is maintained until the end of the process, we
talk about ‘SMUGGLING’. This is
illegal, but is it also unethical? When is smuggling unethical? What is ‘a
good reason’ to help an undocumented migrant? The increased vulnerability of
undocumented, smuggled migrants (severe risks of abuse and violence) should be
taken into account. Somebody can feel he does something out of free consent, but
that does not render things unproblematic.
The
Europol Convention of 1995 states that “illegal
migrant smuggling comprises activities intended deliberately to facilitate, for
financial gain, the entry into, residence or employment of an alien in the
territory of the State, contrary to the rules and conditions applicable in such
a State” / trafficking relates to “subjection of a person to the real and
illegal sway of other persons by using violence or menace or by abuse of
authority or by deception, particularly in order to engage in the exploitation
of prostitution of that person…”
It is
difficult to make a distinction, as is often heard, between HUMANITARIAN and COMMERCIAL help.
For example in the case of taxi drivers, lawyers, and physicians there is no
straight divide between ‘profit’ and/or ‘humanitarian’ reasons.
Ethically
problematic assistance is ‘EXPLOITATION’
(= abuse of vulnerability).
What
are arguments to deny care to undocumented migrants?
The
dominant position in the public debate is the ‘legalistic’ point of view:
states have the right to control their borders and to decide who will be
admitted. In this reasoning, the following statements are heard:
=>
Illegal aliens should be expelled because their presence is against the law
=>
All illegal persons should be treated equally
=> Illegal persons do not have a right to certain facilities at
the
expense of the taxpayer [denial of public (funded) care]
=>
Private, voluntary assistance should be penalised because it encourages illegal
immigration
=>
Public institutions should report undocumented children/clients/patients to the
official authorities
=>
………
We should look for
arguments against this kind of reasoning.
Moral
considerations in defense of certain rights & care for undocumented persons
What
moral considerations can be brought in against these legalistic arguments?
1. As
human beings, undocumented persons have certain basic rights (health care, education, housing, …)
Important
here is that it should also be argued why people have the duty to do something.
Is this an empty right? Who is going to provide the right? It should be made
clear to the government that they have to provide this right.
2. The
principle of mutual aid (Good
Samaritanism):
“When
two strangers meet at the sea, in the desert or by the side of the road, it is
by no means clear what they precisely owe one another, but we commonly say that:
a)
Positive assistance is required if it is
needed or urgently needed by one the parties
b)
If the risks and costs of
giving it are relatively low for the
other party”
At the
level of the individual, this means that I ought to stop and help the injured
stranger, whenever I met him, whatever his status,…. At the collective level,
groups of people ought to help necessitous strangers if the risks and costs are
relatively low. (cf. Walzer) Problematic here is however, that it is not clear
what exactly should be done.
3. Countries have special
responsibilities & duties towards persons who have been living on their
territories (legalisation)
It
should be noted that the question towards whom one has responsibilities is a
problematic one. It is often stated that the factor of being ‘near’ is
decisive, but does that still count in our context of ‘globalisation’?
4. Less problematic that the
previous arguments is the Ethic of care. The
reasoning is the following:
- Humans
are interdependent social beings
- Care,
empathy and personal and social relations based on mutual respect should be
recognized as morally valuable and good
- caring
for and taking concrete responsibility for vulnerable and needy human beings
should be developed and encouraged: through education,
restructuring of social and political institutions, ….
- illegalising
and penalising ‘care’ is immoral – it contributes to a culture of
hostility, indifference and neglect of the needs of all kinds of ‘strangers’
5. Special responsibilities of professionals:
professional ethics
Building
on the previous point, it can be stated that:
a)
the values of social work/caring professions fit under the rubric of
humanitarianism: the primary mission is to enhance human well-being and to help
people meet basic human needs, with particular attention to the needs of people
who are vulnerable, oppressed and living in poverty.
b)
Central among these is the worth and the dignity of the INDIVIDUAL,
c)
Patient/client’s needs should be attended to without regard to their
social, political or citizenship status – (cf. humanitarian role, serving
people charged with crimes, … – even in wartime physicians are expected to
care for any soldier in medical need, regardless of his or her nationality)
d)
Health care professionals follow standards of practice and ethical codes
and are supposed to promote the best interests of their clients/patients, not
their own self-interest or the interests of third parties
e)
Social workers simultaneously focus on individual well-being in a social
context and the well-being of the broader society. An important question that
raises here, is what is the primary goal? The social agenda or the political
agenda? We can observe an instrumentalisation of the welfare work: from
individual/social well being/welfare priorities, there is a shift of accent to
political/security priorities. But on whose side are the welfare workers?
Ethical
principles of professional care
The
moral principle that lies at the basis of professional care is the respect for
individual human beings. Following from this basis principles are some prima
facie principles:
1.
Respect
for autonomy (self-rule) of the client
This
includes that people are consulted and their agreement
has to be obtained (“informed consent”), it includes confidentiality,
non deception, etc.
2.
Beneficence
and non-maleficence: do not harm, do good
3.
Justice: Non
preferential treatment: treat equals equally, and treat unequals unequally in
proportion to the morally relevant inequalities
Compliance
with regulations and laws: GENERAL REMARKS
If I
believe that the law is morally unjustified,
I am morally entitled to break the law, but this gives me no legal
entitlement to break the law. I should be prepared to face the legal
consequences of disobeying it.
The
decision not to obey a law must be morally justifiable: that means it must refer
to general ethical principles.
Social
workers who are required by law to report cases of suspected or abuse of a
person may be tempted to violate the statute if they believe that reporting an
incident to public officials would be counterproductive and would lead to an
intrusive and disruptive investigation. (contextual/consequentialistic
considerations)
Unjust,
inhuman or unreasonable law, regulation or policy: conscientious
objection?
Civil
disobedience can be described as “a deliberate violation of the law, committed
in order to draw attention to or rectify perceived injustices in the law or
policies of a state”. This is illegal, but
not illegitimate or unjustified. It
can be seen as legitimate way to protest against rules that conflict with
fundamental values and principles.
General
characteristics of this disobedience are:
- illegal (legal dimension)
-
conscientious (moral dimension)
-
deliberated (rational dimension)
-
public action
-
only after other legal possibilities have failed
(political dimension)
-
non-violent
-
the rights of others are taken into account as much as
possible (dimension of co-citizenship)
-
a symbolic relation between the object of criticism and
the undertaken action
-
voluntary cooperation with legal arrestment and
prosecution
-
expression of a general civic sense/spirit,
-
non-violent and non-military ways of protesting
-
political action
-
civilised and well-organised
-
public
-
directed to others citizens/ public opinion