Justice Everywhere

a blog about justice in public affairs

Is the £35,000 rule unjust?

From the 1st April onwards any non-EU immigrant to the UK who does not otherwise have a connection with the country* must earn at least £35,000 by the end of their fifth year here, or otherwise face deportation. This policy is expected to make a small but largely insignificant contribution to lowering net migration numbers.

The commentariat’s verdict has been unequivocally harsh. This discriminatory law, it has been pointed out, will do next to nothing to keep out the kinds of people that draw the ire of the tabloids: unemployed “scroungers” and low-skilled immigrants who, it is claimed, depress the wages of – and take jobs away from ­– low-skilled British workers.

Moreover, as one article pointed out, many of the people who risk falling foul of this law are teachers, nurses, STEM researchers – either working in professions that are already desperately short of manpower, or in the industries that Britain expects to live on in the future.

But while it seems fairly obvious that this policy is mistaken and short-sighted, is the British government actually committing an injustice by instituting this arbitrary £35,000 limit?**

If your point of view is that there is a universal right to immigration, as for instance Kieran Oberman argues [1], then the answer would seem to be yes. Of course human rights are not always absolute, and when one human right clashes with another something’s got to give. But even if people have a right to protect their culture and the distributive justice of their societies, this surely doesn’t apply here. A person earning, say, £30,000 a year is not a drain on the British economy at all, but in fact contributes to the social welfare system through their taxes while claiming nothing in return. And as for transforming British culture these people are far too few, and far too likely to come from similar cultures anyway, that the changes in culture will be minimal.

But others argue strongly that communities do have the right to control their membership. On the one hand, David Miller believes a country has the right to limit the total numbers of immigrants, in an effort to conserve the make-up of their society, and to preserve the decision-making powers of its citizenry [2]. To Michael Blake, on the other, what really matters is that the state is a legal and political project. The state accepts a duty to devote its resources to protecting the rights of the people that live on its territory. When immigrants come into a country they automatically acquire the same protections. The state therefore has a right to choose who to grant those rights to [3]. Of course this right is not universal. Refugees or people fleeing religious or political persecution have a human right to protection that overrides the state’s right to choose its members. But that hardly seems the case for most of the people facing the £35,000 rule. Many come from countries whose own institutions are perfectly capable of protecting their rights, and many are well-educated enough to be reasonably sure of finding good jobs there.

From that point of view it seems that if the UK does have the right to put restrictions on immigration and lower the number of new entrants, the people most likely to fall foul of this rule are the ones that suffer the least from being excluded. This is especially true when we compare them to, say, poor migrants from former British colonies coming here in search of a better life. If it has to be done (admittedly a controversial “if”), better to exclude the people most able to live a fulfilling life in their country of origin.

But there is (at least) one further complication that needs to be addressed. The figure of £35,000 seems to be plucked out of thin air. It certainly bears no resemblance to other indicators of financial independence. It is well above the median annual salary of £27,200, and even further above the threshold for claiming working tax credits (£13,100 for a single person with no children). Does the government violate people’s rights by making their future in Britain depend on an arbitrary number?

A lot in society is arbitrary. Whenever a distinction has to be made between two groups of people, a line has to be drawn. For instance, the voting age has been set to 18 years because democratic decisions ought to be made by adults fully capable of democratic deliberation. But there is no good reason why someone aged 17 years, 11 months and 29 days on election day should be less qualified than someone aged 18 years and 1 day. Yet there it is. So to defend the limit it would be enough to prove that setting a cut-off point is permissible. The precise figure of £35,000 does not need to be justified from a moral point of view.

But a key difference, of course, is that we generally agree that adulthood starts at around 18 years, so while the exact cut-off point is somewhat arbitrary it’s in the right ballpark. That same argument may have been the case for the old threshold of £22,800, but not so for the new one. Voting is an intrinsic right that comes with membership in a society. But if you agree with Miller or Blake that there is no intrinsic right to membership to begin with, there is no natural ballpark figure to be aiming at. Provided those with a genuine human right to escape to a better life are allowed in, the rules governing migration in general are left to the discretion of governments.

To conclude, the answer to the question hinges on whether you think closed borders of any kind are unjust. Perhaps the right to immigrate is universal, and there is a duty to let everyone in. But if you agree with the majority of people and all major British political parties that some limits on immigration ought to be in place, the conclusion seems clear to me that while this law is indeed remarkably stupid and short-sighted, it is not unjust. And it is within the moral right of the government to implement it. Many of the people affected by the rule are precisely the kinds of people we should encourage to come and contribute to British society. They are an asset to the UK, and the government ought to let them stay. But that cannot by itself grant them a human right to be here; indeed, it seems more likely that people who are an economic liability, at least in the short term, have a greater claim to that right, as that is probably much better correlated with needing the protection of the British state to begin with.

 

* There is, of course, a very real chance that people who fall foul of the £35,000 rule end up having a legitimate claim to a close connection to the UK turned down. That clearly seems to constitute a breach of their rights. But it is by not having their legitimate connection recognised that their rights are most obviously breached.

** I should clarify that I am not here talking about the specific ways the law is being implemented – whether the right to due process of those affected is being respected. Those may constitute an injustice without the underlying principle behind the law doing so.

[1] Oberman, Kieran (2016), “Immigration as a Human Right”, in Fine, Sarah and Ypi, Lea (eds), Migration In Political Theory, Oxford: Oxford University Press, 32-56.

[2] Miller, David (2016), “Is There a Human Right to Immigrate?”, in Fine, Sarah and Ypi, Lea (eds), Migration in Political Theory, Oxford: Oxford University Press, 11-31.

[3] Blake, Michael (2013), “Immigration, Jurisdiction, and Exclusion”, Philosophy & Public Affairs, 41/2, 103-130.

Jesper Lærke Pedersen

Jesper recently completed his PhD in Political Theory at the School of Government & International Affairs, Durham University. He works on global justice, specifically responsibilities of the developed world towards developing countries. He’s also the webmaster for this blog.

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More thoughts on the £35,000 threshold – a response to Jesper Pedersen

6 Comments

  1. Greg Wild

    The idea of a salary minimum is unjust, and £35,000 is just absurd and pernicious. It’s also somewhat a tacit admission that there aren’t enough reasonably paid jobs around, if they feel that even middle-class salaries are in enough demand that we have to kick contributors to the economy out.

    I would say I accept – if disagree in principle – that Britain has the right to define who stays part of the citizen body, but a financial measure *is* unjust, because it is not taking into account the role someone occupies in society.

    Once they have roots, removal is unjust. If someone has been here for 5 years, chances are they have deep roots. Friendship networks, employment networks, and other social networks, that they may in no way have in their country of origin. To deprive them of those social connections is denying them their right to be part of more fine-grained, more organic, and deeply meaningful social constructs than the British state. They will have made a life here – whether it’s on £35k or £22k, it’s unjust.

    By all means, if someone isn’t contributing, has no social dependencies besides those provided by the state and is making no effort to do so, *in addition* to ‘taking more than they give’ then I can just about see the justice in moving them on. But a hard number is unjust.

    • Jesper L Pedersen

      Hi Greg. Thanks for your comments. I absolutely agree that people with a close connection to the UK have a right to stay. Let’s imagine for simplicity’s sake that there are three grounds on which an immigrant can obtain the right to stay permanently in the country:

      (1) They risk persecution, starvation or the like in their home country.
      (2) They have a close connection to the UK; for instance family. (There is, as far as I know, clear legal precedence that it doesn’t matter if those connections didn’t exist when the person first entered the country.)
      (3) They meet a standard for permanent residence set by the government; in this case the £35,000 rule.

      To have a right to permanent residency you only need to meet any one of those requirements. The first two are established human rights, and no government can deny you. So the earnings threshold only applies to people who do not meet (1) and (2), and earn less than £35,000 a year.

      So the law only creates a very narrow category of people – whose rights are not threatened in their home country, who haven’t got a close connection to the UK, and who earn between £22,800 and £35,000 a year – who are no longer automatically allowed to remain after five years. That category is probably very small, which underscores how stupid the law is, but stupid does not automatically make unjust.

  2. Ntina Tzouvala

    Thanks for the very interesting read, Jesper. One obvious counter-argument here (arguments about impracticality aside) is the £35,000 rule is not entirely arbitrary. Sure enough, it is arbitrary in relation to a £32,000 or to a £37,000 threshold, but not in relation to £15,000 or to £20,000, to the extent that it denotes acceptance of middle class immigration, but not of working class immigration. If one accepts that the problem of the threshold is not its arbitrariness, but rather its selective character, the argument is automatically re-organised. Of course, one could still conclude that is not unjust, but that would require to argue that restricting migration of those in most dire need is just.

    • Jesper L Pedersen

      Hi Ntina, thanks for your comment. In the way you describe it, I think you’re right that the threshold isn’t as arbitrary as I would see it. But the argument against it cannot simply be that it is selective – if you think migration restrictions are just, it follows that states have the right to make some choices about who gets to enter. So the question is: are there any obviously better alternatives to the £35,000 rule? Australia used to have a policy of only accepting white immigrants. That seems grossly discriminatory and obviously unjust. Now they have a points based system where your right to immigrate depends on whether your particular set of skills matches the perceived needs of the country. That’s a much better system than the British one, but is it any more just? From the point of view of the individual trying to enter, whether your skills happen to match those Australia wants is no less arbitrary than whether you earn above a certain amount.

      As for your final point, I don’t agree that the rule excludes those in most dire need. The old £22,800 threshold was not thought to be controversial (though perhaps it should have been). People earning below that (and thus more likely to be in dire need of the state’s protection) have always had to rely on different rules to stay in the UK. It may be an injustice that poor people are deported to even poorer countries, but that’s a different question.

  3. Lisa Herzog

    Hi Jesper, thanks for your post! I think there is potential for an equivocation of what “justice” can mean here. You focus on justice from a human rights perspective, and from that perspective your argument looks valid to me. But there might be other ways in which a law could be unjust (as you acknowledge in the answers to previous comments). One intuition might run along the following lines: does the law give migrants a fair opportunity to meet those requirements? Or is it so unlikely that they won’t meet them that they can anticipate that they won’t have a chance? And which factors influence whether or not one gets an income above the threshold? Is that sheer luck (maybe even sheer luck together with a willingness to be more ruthless than one’s competitors), or a mixture of hard work, doing a good job, alertness to opportunities, etc.? To take an extreme thought experiment: would we consider it just to allow migrants who win the lottery to stay in the country? There would probably be no human rights violation with such a rule, and yet, it would not seem particularly just (maybe we need a category for rules that are neither particularly just nor particularly unjust, at least on a pragmatic level). So my question is: do you think there could be other grounds for rejecting that rule that also have to do with justice, but not at the level of human rights?

    • Jesper L Pedersen

      Hi Lisa, thanks for your comments. I think you’re right that there are other ways of thinking about justice, and I’ve focused here on the human rights angle. I definitely don’t think that this is an ideal, or even particularly good way of doing it. But even if it’s not perfectly just I wouldn’t describe it as outright unjust – I believe the term “imperfectly just” has been used before (though I forget by whom) to describe situations that fall below a standard for perfect justice, but is nonetheless acceptable. Perhaps that term would apply here.

      I think it’s a very good question whether people have a realistic chance of meeting the target. It’s certainly a lot harder than £22,800, although that was probably out of the reach of a lot of people as well. I think the answer is probably “no” for many people, with the possible exception of people who deliberately target that goal to the detriment of all other things. But again, if you accept – as most people do – that a country has a right to limit immigration, it may be difficult in practice to consolidate it with giving everyone a fair shot at meeting the targets.

      So I am open to the argument that there might be other, less imperfectly just, ways of achieving the same policy outcome – lower immigration – though I don’t know what they might be.

      PS An immigrant who wins the lottery – provided they win enough, of course – can actually get a visa that way. They would need to invest £2 million in government bonds or shares in British companies to be eligible. I’m not sure that rule is unjust by itself, but I think it’s a signal that Britain has some really messed up priorities.

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