The fi rst burden of justifi cation

It follows from the previous chapters that the current policies regarding normal migrants are untenable from a legal perspective because they constitute a form of exclusion without justifi cation. The legal analyses showed that if the authorities deny a normal migrant admission they have a duty to justify the exclusion vis-àvis the excluded migrant. But the claim of this book goes one step further than the duty to justify. It also demands a shift in the fi rst burden of justifi cation. The default position or starting point should be that when authorities deny a normal migrant admission, they should carry the fi rst burden of justifying the exclusion. Only when the authorities came up with a serious justifi cation as defi ned in Chapter 1 (i.e. substantiated by facts and verifi able analyses; balancing the reasons applicable to the normal migrant), is it up to the normal migrant to argue his case for admission. So authorities not only have a duty to justify, they also carry the fi rst burden of justifi cation. While the legal analyses in the previous chapters can account for the former, it cannot explain the latter. The law is all about fi xing the default position, burden of justifi cation and burden of proof. Probably the quintessential characteristic of the law is that it organizes these ‘normal starting points’. However, when it comes to the reasons for fi xing a particular default position in a specifi c way, the law has little to say. Not so much the logic or structure of the law informs the particular default positions laid down in the law. Rather, it seems that predominantly non-legal considerations constitute the ratio behind the default positions. 1 And next to economics and demography, one of the most relevant non-legal considerations in the fi eld of immigration is political theory. In fact over the last decades migration has carved out a place of its own in political theory, i.e. the ethics of migration. This chapter explores how ethics of migration and particularly the different strands of liberalism may help us fi x a new default position in migration policy. To be sure, the debate in political theory is not framed in terms of default position or the fi rst burden of justifi cation. It seems

that the debate is more about arguments in favor or against a particular immigration policy, e.g. should we have (more) open or closed borders? Looming in the background of the discussion is the issue whether states have a right to control migration in the fi rst place. This chapter uses the arguments from the ethics of migration not only to answer these questions, but also as reasons for shifting the burden of justifi cation from the migrant to the migration authorities.