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date: 07 July 2020

Public Health in the Context of Migration: Ethics Issues Related to Immigrants and Refugees

Abstract and Keywords

This chapter explores the ethics and public health issues associated with immigrant and refugee populations, both in the United States and globally. People move across borders for a variety of reasons, including the pursuit of economic opportunities, family reunification, or safety from violence. In order to engage with the public health ethics questions related to different types of migration, this chapter delves into the normative positions of cosmopolitanism, nationalism, and communitarianism. These positions are then applied to ethical issues in migration, including human rights, freedom of movement, open borders, and obligations to noncitizens. Finally, this chapter examines the ethical implications of three public health issues: immigrant health screening, immigration detention, and the provision of publicly funded health care to undocumented immigrants.

Keywords: immigration, refugee populations, public health ethics, human rights, undocumented immigrants, family reunification, cosmopolitanism, nationalism, communitarianism, detention

(p. 245) Introduction

This chapter explores the ethics and public health issues associated with immigrant and refugee populations, both in the United States and globally. It is organized by the phases of the journey of migrants from their home country to the community they join in their new country. We explore these issues for multiple categories of immigrants, including refugees, documented immigrants, and undocumented or irregular immigrants. This first section provides an overview of the types of immigrants and the motivating reasons people migrate internationally. The second section reviews three areas of political or moral theory related to immigration, and the third section provides an ethics analysis of three public health issues that occur at different phases of immigration.

It should be noted that the public health needs and threats facing this population vary widely across various immigrant groups, as well as by stage of migration. Migrants fleeing violence in their home country or living in a refugee camp are subject to very different challenges than immigrants who have settled into a new country where they do not speak the language. Because of this heterogeneity, this chapter reviews three distinct health challenges facing immigrants at different stages of migration: immigration detention, immigrant health screening, and access to health coverage for undocumented immigrants. These examples are not meant to be exhaustive, but rather illustrative of the sorts of public health issues that can arise in the immigration process and their ethical implications.

(p. 246) Types of Immigrants

There are many terms used to describe the movement of individuals between countries, many of which are tied to their motivation for movement. Immigration refers to the “movement of persons across national borders for purposes other than travel or short-term residence,” while emigration refers to “the exodus of people from their country of origin for settlement, usually permanently, in a new country” (Messina and Lahav, 2006, 9). For the sake of simplicity, we will refer to all people who cross international borders for a significant period of time as immigrants. Immigrants can be divided into two categories: voluntary and involuntary.

Voluntary immigrants include economic migrants, who leave their host country for economic reasons and may be documented or undocumented, depending on whether their presence in the host country is legally sanctioned. Other voluntary immigrants migrate not for economic reasons, but for family reunification, or to join relatives living in other countries (Messina and Lahav, 2006). Involuntary immigrants are those who are forced to flee their home country to escape violence or persecution; these include refugees and asylees, who migrate for similar reasons but through different avenues. Article 1 of the UN Convention Relating to the Status of Refugees defines a refugee as

any person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.

(UNGA, 1951, Article 1)

An asylee must meet this definition and submit a request for asylum while inside the destination country or at a port of entry, whereas refugees are generally granted refugee status while located outside the destination country (USCIS, 2015).

Normative Positions

Whether these various immigration statuses or motivations for immigration are morally relevant in determining the justice obligations of receiving countries is the subject of much debate. This section will outline several of the normative positions and political theories that address this question, including cosmopolitanism, nationalism, and communitarianism.

Cosmopolitanism is based on a belief in the moral equality of all human beings and the idea that “all human beings’ needs and interests deserve equal consideration,” regardless of where they are located on the globe, all else being equal (Brock, 2015, 113). It also shares with the human rights paradigm a commitment to a right to freedom of movement within and between countries. The logical conclusion of these two ideas is a position that dictates that justice obligations do not distinguish between compatriots (p. 247) and noncompatriots, so immigrants and refugees have equal claims to a nation’s resources as its citizens. Indeed, strict versions of cosmopolitanism argue that our duties of justice are not geographically restricted (Singer, 1972). Cosmopolitanism does not necessarily provide guidance for the just distribution of resources, but rather insists that we treat nationality and immigration status as morally irrelevant, or at least not of paramount moral importance, in devising distribution schemes. Broader justice questions of whether these schemes demand only that we rescue those in dire emergency positions regardless of immigration status or location on the globe, or whether they demand that we provide full and equal access to the complete spectrum of human rights, are left for the cosmopolitan reader to consider.

On the other end of the spectrum from cosmopolitanism is nationalism, or the position that legitimate states have the right to political self-determination, including the freedom to associate (or not associate) with others (Wellman and Cole, 2011). Implicit in this understanding of political legitimacy is the idea that states do not have any obligations to noncitizens, including immigrants, and that they cannot be morally compelled to provide assistance to outsiders. Thomas Nagel (2005, 121) refers to this as the “political conception of justice,” and argues that “justice is something we owe through our shared institutions only to those with whom we stand in a strong political relation. It is … an associative obligation.” Nationalism thus conflicts with the cosmopolitan approach to justice in that it regards as incoherent questions of justice obligations to noncompatriots. The nationalist might concede that foreigners both beyond and within our borders may be owed humanitarian assistance in times of emergency, but these obligations are generated by concerns distinct from justice, such as duties of beneficence.

The final category of normative positions that we will consider are communitarian positions, which hold that the strength of an individual’s claim on public resources is based on the strength of the individual’s relationship to the community in which he or she is situated. These positions differ from cosmopolitanism in that many hinge on different levels of “deservedness,” which a cosmopolitan would reject on the grounds that all humans are equally deserving simply by virtue of being human. Different societies may endorse different characteristics that determine entitlement to social benefits, although membership in the society is typically considered relevant. Another distinction between this position and nationalism is that the boundaries of communities are not necessarily those of nation-states—the key moral issue is community rather than nationality.

Ethical Issues in the Migrant’s Journey

Ethics in Migration: Freedom of Movement and Human Rights

Debates about the ethics of immigration can often be boiled down to a conflict between two rights: the right of sovereign nations to freedom of association (that is, the right to (p. 248) decide who will be permitted to enter their countries), and the right of individuals to freedom of movement across borders. Arguments for freedom of movement across borders typically fall into one of two camps: either immigration is a “remedial right” that allows the disadvantaged to recover resources and opportunities denied to them in their home countries, or it is a “primary right” that cannot be restricted without justification (Bauböck, 2009, 2). If it is a remedial right, then it should only exist as long as global injustices persist, and should cease to be necessary once all nation-states are able to provide similar levels of quality of life (Carens, 1987). Others construe this freedom as a primary human right that is not only instrumentally valuable but also “an essential component of human agency, such that it is a crucial part of the ability of people to be free and equal choosers, doers, and participators in their local, national, and global communities” (Wellman and Cole, 2011, 297).

A formalization of the right to freedom of movement can be found in Article 13 of the UN Declaration of Human Rights (1948), which states, “(1) Everyone has the right to freedom of movement and residence within the borders of each state,” and “(2) Everyone has the right to leave any country, including his own, and to return to his country.” The Declaration of Human Rights is not legally binding, and most political theorists recognize that the right to freedom of movement is not absolute and must be balanced against other considerations (Miller, 2016). Nonetheless, the right to leave one’s home country (and to return to it) is also enshrined in several other international covenants, including the International Covenant on Civil and Political Rights (UNGA, 1966a).

The right to freedom of movement is complicated, however, by the fact that a right to leave one’s home country does not equate to the right to enter another. The fundamental tension between a sovereign nation’s right of association to control immigration and the right of an individual to emigrate raises significant challenges to the exercise of freedom of movement, especially to the global poor and disenfranchised, who often find themselves unwelcome in wealthier nations and therefore unable to emigrate legally (Wellman and Cole, 2011; Zolberg, 1981; Jordan and Düvell, 2003). Whether a right to freedom of movement entails the complementary right to enter another country hinges on whether and to what extent borders should be open to free immigration.

Ethics at the Border: Open and Closed Borders

The question of whether there is a human right to freedom of movement across borders, or a human right to immigration, is a subject of much debate among political theorists. David Miller (2016) argues that there is no human right to immigration, and that states can be justified in limiting inward movement across their borders to control overall numbers, prevent major cultural shifts, and maintain the composition of the citizen body. Typically, theorists who argue that the right to freedom of association trumps the right to freedom of movement support closed borders as well. Christopher Wellman, for example, argues that legitimate states are entitled to political self-determination, of which freedom of association is an integral component that entails the right not to associate (p. 249) with others (Wellman and Cole, 2011). Miller, Wellman, and many other nationalist theorists do support a humanitarian obligation to assist people in dire need, but they do not believe that this obligation requires political communities to admit migrants and refugees (though Miller concedes that there are “human rights questions to be asked about the criteria used to select immigrants who do not qualify as asylum seekers” [Miller, 2016, 30]).

Joseph Carens (2013) takes a cosmopolitan position in his defense of open borders. He argues that freedom of movement is necessary to preserve equality of opportunity, and that immigration control policies therefore require justification. Carens suggests that “a commitment to equal moral worth entails some commitment to economic, social, and political equality, partly as a means of realizing equal freedom and equal opportunity and partly as a desirable end in itself,” and that freedom of movement would contribute to a reduction of these inequalities (228). Thus, Carens’s argument for open borders is two-pronged: freedom of movement both supports equality of opportunity and reduces global inequalities, so restrictions of it must be justified rather than accepted as the status quo.

Ethics in the Destination Country: Communitarian Obligations to Noncitizens

Once an immigrant has reached her destination country, the question of what obligations her new home has toward her as a noncitizen must be considered. A communitarian might argue that she is not different in a morally relevant way from the citizens with whom she shares her community, and thus she is entitled to the same benefits of community membership, including claiming public resources. This position is shared by Michael Walzer, who argues that once an immigrant has been admitted and resides among citizens, he must receive equal rights and a plausible path to citizenship. Walzer writes that “the principle of political justice is this: that the processes of self-determination through which a democratic state shapes its internal life, must be open, and equally open, to all those men and women who live within its territory, work in the local economy, and are subject to local law” (Walzer, 1983, 60). This is an ideal theory position, but it is related to a variety of practical arguments.

One practical communitarian argument in favor of an obligation to provide at least some level of public assistance to immigrants is that they “contribute to social welfare in the same ways that other productive members of society do, including paying at least some taxes” (Hall and Perrin, 2015, 134). A recent report by the nonpartisan Institute on Taxation and Economic Policy in the United States found that undocumented immigrants paid $11.84 billion in US state and local taxes in 2012, at an effective tax rate of 8 percent (Gardner, Johnson, and Wiehe, 2015), but the claim that undocumented immigrants pay sufficient taxes to merit access to public services is disputed (Edwards, 2010; Camarota, 2009; Martin, 2012). Either way, it could be argued that basing entitlement on who pays taxes is ethically problematic, and may not be the most morally appropriate approach (Dwyer, 2004).

(p. 250) Another communitarian position is the social embeddedness argument that “even when immigrants’ social contributions cannot be quantified, they are nevertheless tangible in more diffused or qualitative senses of communitarianism” (Hall and Perrin, 2015, 135). Many immigrants live in neighborhoods and work in businesses, and through the formation of social relationships they become deeply embedded in the society in which they live. Carens argues that the amount of time an immigrant has resided in a community is morally relevant, and that social embeddedness increases with time, as does the strength of a noncitizen’s claim to public resources.

Public Health Issues in the Migrant’s Journey

Public Health in Migration: Immigrant Detention

Closely related to the right to freedom of movement is the issue of immigrant or immigration detention, which is a policy of detaining immigrants who are suspected of entering or remaining in a country without legal permission. Immigrant detainees include undocumented men, women, and children awaiting deportation proceedings and refugees petitioning for asylum, as well as those who have been arrested for committing a crime. Immigration detention policies differ from country to country. The United States and Australia have policies of mandatory detention, under which all illegal immigrants and asylum seekers are compulsorily detained, although in the United States they may be released if they do not have a criminal history and are not deemed a threat to national security by the Immigration and Customs Enforcement Agency (ICE).

Conditions in many immigrant detention facilities in the United States are notoriously poor. Reports by the ACLU (American Civil Liberties Union), Amnesty International, the US Commission on Civil Rights, and several other independent bodies have documented overcrowded conditions, inappropriate use of isolation, inadequate access to necessary medical care, restricted access to federally mandated legal services and books, and physical and sexual abuse of detainees, among other rights violations (Amnesty International, 2009; IACHR, 2010; ACLU, 2014; USCCR, 2015; Migration and Refugee Services, 2015). Many of these claims are corroborated by a 2009 report by ICE itself (Schriro, 2009). These issues are compounded by the dramatic increase in the number of immigrants in US detention facilities, rising from around 85,000 in 1995 to a peak of 477,523 in FY 2012 (Global Detention Project, 2016).

Particularly troubling is the recent surge in juvenile detention in the United States; between October 2013 and September 2014, authorities apprehended 68,541 unaccompanied children at the US–Mexico border, nearly 80 percent of whom were from Central American countries (Phippen, 2015). The detention of children, many of whom risked incredibly dangerous conditions and physical and sexual abuse while fleeing violence in (p. 251) their home countries, has been met with strong criticism from immigrant rights groups. Juvenile detainees are at particular risk for psychological distress and the development of mental health conditions due to a variety of factors. These include the trauma they experienced in their home countries and along the journey to the country in which they seek asylum, as well as the effects of separation from family, malnutrition, disease, and neglect (Newman and Steel, 2008; Silove, Austin, and Steel, 2007).

Of course, the United States is not detaining immigrants out of malice; a massive influx of migrants with no resources and significant physical and mental health needs can mean major costs to the local communities in which they settle. Receiving localities may not be equipped to accept thousands of migrant children with minimal English proficiency, and while federal law guarantees all children a free public education, the costs of educating undocumented children are largely borne by local school districts (Pierce, 2015). These costs create incentives for communities to reject unaccompanied minors and urge stronger enforcement of federal immigration law.

Public Health at the Border: Immigrant Health Screening

Immigrant health screening is a controversial topic in public health ethics, as it pits the health of the citizen population against that of the individual immigrant, severely restricting her autonomy and freedom of movement in order to protect the public good. In a world of semi-porous closed borders, states must set specific criteria for the admission of new immigrants, and one common criterion is the immigrant’s health status.

In the United States, immigrant health screening has been a key component of the refugee and immigrant admission process since the Immigration Act of 1882, which called for the exclusion of “any person unable to take care of him or herself without becoming a public charge,” including the mentally ill, the sick, and the disabled (Immigration Act of 1882, 22 Stat. 214, Sec 2). This exclusion was further specified in the Immigration and Nationality Act of 1952 (INA), which established that immigrants “who are afflicted with tuberculosis … leprosy, or any dangerous contagious disease” are “ineligible to receive visas and shall be excluded from admission into the United States” (Immigration and Nationality Act of 1952, Pub.L. 414, Sec. 212).

Health screening is mandatory for all immigrants applying for permanent residence in the United States, including asylum seekers and refugees. The public health purpose of these policies was ostensibly to protect citizens from contracting potentially deadly and highly contagious diseases, although they were often applied in a discriminatory fashion to keep out immigrants seen as undesirable, including homosexual immigrants, who were explicitly barred from entry until the Immigration Act of 1990 removed “sexual deviance” as an excludable category (Forrester, 1987; Shoop, 1993).

In 1987, in response to the growing human immunodeficiency virus/acquired immunodeficiency syndrome (HIV/AIDS) epidemic, the Centers for Disease Control and Prevention’s (CDC’s) list of dangerous contagious diseases (now called “communicable diseases of public health significance”) was expanded to include HIV, mandating that all (p. 252) immigrants seeking permanent residence undergo blood testing. Although proponents of this measure argued that it would protect the public’s health, many ultimately supported a ban because of the perceived financial burden of providing care for patients with HIV/AIDS. One US legislator declared that “it is simply not in the interests of this nation to allow into this country as permanent immigrants people who have a noncurable disease. Our health care system is already inundated trying to keep up with the health needs of . . . citizens” (Gladwell, 1991; Shoop, 1993, 533). Opponents to the HIV exclusion, including representatives of the international community and several international health agencies, argued that it would not be an effective way of preventing the spread of disease, given that tourists and other visitors were not subjected to the same ban, and that it could not be spread through casual contact (UNAIDS and IOM, 2004).

The ban was kept in place for over twenty years, and the measure prevented HIV-infected would-be immigrants from entering the United States in search of medical care for their condition at the peak of the epidemic. HIV remained on the list of excludable conditions until November 2009, when the CDC removed it and all references to mandatory serologic testing of new immigrants (CDC, 2009).1 Although the United States has eliminated its ban, many other nations continue to impose harsh restrictions on the movement of HIV-positive immigrants. In 2016, fifty-six countries still had special entry regulations related to HIV (Wiessner and Lemmen, 2016). While this represents an improvement since 1999, when 104 countries were found to have HIV-specific travel restrictions, there is still much work to be done on the global scale to improve freedom of movement for people living with HIV/AIDS.

Public Health in the Destination Country: Undocumented Immigrants and Publicly Funded Health Care in the United States

Although many international covenants recognize access to medical services as a human right, including the International Covenant on Economic, Social and Cultural Rights (which the United States has not ratified), immigrants are frequently barred from accessing publicly funded health care (UNGA, 1966b). Policies regarding immigrant eligibility for public health care in the United States have evolved significantly since the late 1990s, and many reflect the various normative positions outlined above.

Eligibility for social services in the United States varies greatly by immigration status. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA, or “welfare reform”) divides immigrants into eligibility categories that have implications for which public benefits they may access, creating an eligibility spectrum that privileges certain types of immigrants over others. Immigrants who qualify for some public insurance coverage include legal permanent residents who have resided in the United States for five or more years (known as the five-year bar), refugees, asylees, and several other humanitarian immigrant groups. The five-year bar reflects the communitarian (p. 253) notion of social embeddedness (i.e., that one’s claim to public resources depends on how long one has resided in the community), although five years may seem like an arbitrary cut-off point for eligibility. States wishing to provide nonexempt qualified immigrants with access to public benefits during the five-year bar, or to unqualified immigrants, must do so with state-only funds, since the use of federal funds for these populations is illegal. Waiving the five-year bar for refugees and asylees demonstrates a commitment to a humanitarian ethic: immigrants who have entered the United States for their own safety (through accepted legal mechanisms) deserve protection.

The United States treats unqualified immigrants quite differently. Asylum applicants, students, tourists, and undocumented immigrants are ineligible for almost all forms of public medical insurance, although they can access some services on a sliding fee scale at Federally Qualified Health Centers (FQHCs) (Gusmano, 2012). Many undocumented and otherwise unqualified immigrants access health care through emergency rooms under the Emergency Medical Treatment and Active Labor Act (EMTALA), which requires hospitals to accept patients in life-threatening condition or active labor without ascertaining immigration or insurance status (Siskin, 2004). In specific circumstances, treatment provided under EMTALA will be covered by Emergency Medicaid, which is an encounter-based payment by a government insurance program (Medicaid) to the institution providing care that covers the emergency medical costs of some unqualified patients, including low-income pregnant women, children under nineteen, and disabled persons (Siskin, 2004; GAO, 2004). Providing unqualified immigrants with coverage only for emergency care indicates a minimalist humanitarian position under which we owe no more than what is required to save a life.

Limiting the time-dependent public benefits to just legal permanent residents does not comport with Carens’s social embeddedness theory, because many undocumented immigrants are deeply embedded in their communities. It does, however, reflect “deservedness” objections that “illegality disqualifies [undocumented immigrants] for at least some social services they would otherwise merit” (Hall and Perrin, 2015, 135). There is an aspect of punishment or retributive justice in the view that, having broken the law to enter the country, undocumented immigrants are undeserving of public benefits, yet many citizens violate the law every day without being disqualified from health care coverage (although in practice the care that prisoners receive is often far below accepted health care guidelines standards) (Dwyer, 2015; Hall and Perrin, 2015; Wilper et al., 2009). Even if the punishment argument were convincing, however, it could be argued that denying care to undocumented children unjustly punishes them for a crime they did not commit. Several states, including New York, California, and Illinois, provide coverage for undocumented children, reflecting this objection.

Guaranteeing the right to health care for immigrants will likely require progressive realization. As this section shows, most countries’ patchwork and minimalist protections for undocumented immigrants fall far short of meeting minimal humanitarian, let alone substantive communitarian or cosmopolitan, obligations toward noncitizen residents and community members. Correcting this injustice will require states to reevaluate their health policies toward immigrants, a process unlikely to occur overnight.

(p. 254) Conclusion

Immigration across borders raises a number of ethical questions and creates significant public health concerns. What we believe we owe to our fellow humans who leave their home country in search of a better life hinges on the normative position we take, be it cosmopolitan, nationalist, or something in between. In an increasingly globalized society in which humanity grows more interconnected through modern communication and economic interaction, it is necessary that we reevaluate our ethical obligations to noncitizens both within and beyond our borders.

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Notes:

(1.) Diseases that remain excludable include “active tuberculosis, infectious syphilis, gonorrhea, infectious leprosy,” among others, as well as “any quarantinable, communicable disease specified by Executive Orders,” which currently include pandemic flu, severe acute respiratory syndrome (SARS), viral hemorrhagic fevers (such as Ebola virus disease), and plague (USCIS, 2016).