Abstract

Excerpted From: Péter D. Szigeti, No Country for Old Men: Restrictions on the Immigration of Elderly Family Members, 68 McGill Law Journal 1 (January, 2023) (249 Footnotes) (Full Document)

The last couple of decades have seen a bifurcation of immigration laws and policies, which have been most concisely summarized as “attracting the best and excluding the rest.” “The best” are those with “specialized skills and human capital” who “possess remarkable prowess and a proven track record of success in their fields of expertise.” Similarly coveted are entrepreneurs and investors, or simply high net worth individuals, who are ready to transfer large portions of their wealth to their new homelands. The excluded comprehend refugees, whose passage to safe Western countries is made as difficult as possible by walls, barbed wire, and other physical obstacles; by countries with little respect for human rights that straddle migration routes; and by restrictive interpretations of refugee protection provisions. The unwanted also include those without higher education credentials and in-demand labour skills, who are excluded by default. And similarly unwanted are those with any sort of criminal record, or those who present any sort of security risk.

Caught in the middle are family members, who are neither clearly wanted nor unwanted. There has certainly been a rising suspicion regarding family members wanting to immigrate, especially toward spouses and romantic partners. Before the 1950s, all states accepted marriages at face value for immigration purposes as well as for other purposes; after the 1953 US Supreme Court decision, Lutwak v United States, only “genuine” marriages concluded for purposes other than immigration were acceptable. The distinction between “true” and “sham” marriages was for a long time unique to the US, but by the early 2000s, it had globalized to Canada, the UK and most European countries. Furthermore, even spouses who are accepted as “genuine” increasingly have to pass language tests and cultural integration tests, similar to economic immigrants.

The attention granted to spouses (and occasionally children has eclipsed parental and grandparental immigration. There has been some attention given to the question of age in migration in general most of that has been directed at refugees and other forced migrants, where it is often young migrants who face discrimination, not older ones. Other studies, which have investigated elderly migrants, have looked at the challenges that they have faced after they have been admitted, not at the stage of eligibility or admissibility. The migration of elderly family members is a topic that has received very little attention so far.

In this article, I argue that an atmosphere of suspicion and disfavour towards elderly family members is growing in the legal systems of significant immigration destination countries. The present study will compare the rules for the immigration of parents and grandparents of citizens and permanent residents in three types of immigrant-receiving countries: traditional settler states, modern settler states, and liberal states that try to minimize immigration. Part II lays out this ideal-typical classification and identifies the United States as a traditional settler state; Old Commonwealth countries of immigration (Canada, Australia, New Zealand) as modern settler states; and other Western democratic states as nonimmigrant regimes. Part III shows how modern settler states have turned toward welcoming younger immigrants and discouraging elderly immigrants, while Part IV lays out the legal “toolkit” or “playbook” for restricting immigration by elderly relatives. The tools in question include high income requirements, strict sponsorship demands, tiny quota numbers, and restrictive understandings of health requirements and health risks. Part V surveys the alternatives that the states under consideration offer to foreign (grand)parents and their sponsors. Elderly parents may enter as tourists, without rights to residence or to social services; or they can come as investors, if they are wealthy enough to invest huge sums into the destination state's budget or economy. Part VI looks at the stunted justifications for restricting elderly immigration, both in policy discourse and the courts. Courts have been passive and showed deference to legislatures and the executive--here as elsewhere in immigration law. Legislatures and the press have given minimal attention to the question, and, where justifications have been provided, they have been in term of a narrow, back-of-the-envelope type of economic rationalism. Part VII provides a conclusion: “[t]hat is no country for old men ... An aged man is but a paltry thing / A tattered coat upon a stick.”

[. . .]

Starting in the 1970s, most immigrant-welcoming settler states reformulated their immigration laws to get rid of overt racial discrimination, while making family-based immigration more difficult. The immigration reforms have had a heretofore unnoted restrictive effect on the immigration of elderly family members. The tools being used are exceedingly familiar from immigration history: requirements on sponsorship by resident family members; restrictions on the immigration of people who are health risks for the destination country; tight quotas and long processing times. But these tools have been reconfigured in recent decades to be more restrictive, and tailored to serve a narrow-minded econocentrism that claims that immigration policy should only serve fiscal benefits. Quotas have been lowered, minimum income requirements for sponsorship have been raised, and health restrictions have been reconfigured to bar persons whose healthcare will probably cost more than the average national's healthcare. Additionally, a range of conditions have been created around the structure of the sponsoring family: parents who wish to migrate may not have dependent children, may not have more children in countries other than the destination state, or may not be in a partnership with anyone other than the sponsors' other parent. Strictest and bluntest of all is the UK's post-2012 policy, which bans the immigration of elderly relatives except when there is literally no other way to keep that family member alive.

What should elderly parents and grandparents in transnational families do, then, if they wish to spend time with their families? Two alternatives to the old-fashioned, long-term immigration route are the tourist route and the investor route. The tourist route allows elderly relatives to visit often, for longer periods, but does not allow them to stay, to work, or to access publicly funded healthcare or social services. It also allows for cancellation and deportation at any moment, and it must be renewed frequently. The investor route is available only to the very rich, who can literally buy entry rights to the destination country--for hundreds of thousands of dollars.

Neither domestic courts nor international human rights courts have raised any qualms about these regulations. Nor have journalists, scholars or legislators raised substantial waves about them. Truly, there are much greater injustices taking place in global migration today. But the migration of elderly family members may be the canary in the coal mine: a population whose harms, risks and costs are negligible, and the arguments against them are petty and unconvincing. At the same time, there is little hope that forced migration will decrease in the coming years and decades. Indeed, the Sydney-based Institute for Economics and Peace estimated in 2020 that by 2050, as many as 1,2 billion people will be forced to escape from spiralling resource scarcity and violence erupting due to that scarcity. We have seen that refugees are being denied legal protections, and are being hindered physically, already in almost every way possible. If the disallowance of elderly relatives, who pose no security risks and benefit from the sponsorship of loving families in the destination country, can take place with so little opposition, what hope is there for the forced migrants of tomorrow?

Assistant Professor, University of Alberta, Faculty of Law.