Law and Migration in a Changing World: General Report

Abstract

This General Report draws from twenty-six national reports. Structured in two parts, it investigates the status of the migration law regimes in receiving countries, where migration events have come under intense domestic and international scrutiny. The first part (Sects. 2–4) compares the legislative, judicial, and administrative instruments regulating foreign arrivals and stays, signaling an evolution towards a jus commune in the highly plural and interactive world of legal orders and sources, judicial and decision-making bodies, as well as hierarchies and sovereignties. The second part (Sects. 5–6) reflects on convergences and divergences, and how countries variously leverage such instruments to formulate their migration management policies. Although a given in the legal field, the gap, especially between law and practice, is frighteningly wide in migration matters, with dramatic consequences for some categories of migrants, their communities, and—directly and indirectly—for their countries of origin and the society where they seek a new life. The General Report advocates for the human rights of migrants to be more firmly imprinted in understandings of national sovereignty and security and a greater permeability of national law to international human rights law.

Appendices

Annex 1: Selected General Bibliography

The selected general bibliography compiled below is complemented by the bibliographies in the references section at the end of each national report.

Achiume TE, Gammeltoft-Hansen Th, Spijkerboer Th (eds) (2020) Symposium on Covid-19, Global Mobility and International Law. Am J Int Law Unbound 114

Aleinikoff TA (2017) Toward a Global System of Human Mobility: Three Thoughts. Am J Int Law Unbound 111

Aleinikoff TA, Chetail V (eds) (2003) Migration and international legal norms. T.M.C. Asser Press

Alland D, Teitgen-Colly C (2002) Traité du Droit de l’Asile. PUF

Angenendt S, Biehler N (2018) On the way to a global compact on refugees: the ‘Zero Draft’—a positive, but not yet sufficient step. SWP Comments, 18

Azoulai L, de Vries K (eds) (2014) EU migration law: legal complexities and political rationales. Oxford University Press

Bade K (2003) Migration in European history. Blackwell Publishing

Baldassar L, Merla L (eds) (2014) Transnational families, migration and the circulation of care: understanding mobility and absence in family life. Routledge

Bergé J-S (2021) Les situations en mouvement et le droit. Dalloz, Paris

Bernal N, Prada MN, Urueña R (2015) Intra-regional mobility in South America: the Andean Community and MERCOSUR. In: Panizzon M, Zürcher G, Fornalé E (eds) The Palgrave handbook of international labour migration: law and policy perspectives. Palgrave

Boeles P (2014) European migration law, 2nd edn. Intersentia

Caloz-Tschopp M-C, Dasen P (eds) (2007) Mondialisation, Migration et Droits de l’Homme : Un Nouveau Paradigme pour la Recherche et la Citoyenneté. Bruylant

Carlier J-Y, Vanheule D (eds) (1997) Europe and refugees, a challenge. Brill

Carlier J-Y (2007) Droit d’Asile et des Réfugiés. De la Protection aux Droits, Collected Courses of The Hague Academy of International Law, tome 332, 9–354

Carlier J-Y (ed) (2010) L’étranger Face au Droit, XX^es Journées Juridiques Jean Dabin. Bruylant

Carlier J-Y, Sarolea S (2016) Droit des Étrangers. Larcier

Carlier J-Y, Crépeau F, Purkey A (2020) From the European ‘migration crisis’ to the global compact for migration: a political transition short on legal standards. McGill J Sustain Dev 16:2 (free access online)

Castles S, Miller M (2014) The age of migration, 5th edn. Palgrave Macmillan

Chetail V (2019) International migration law. Oxford University Press

Chetail V (2008) Code de Droit International des Migrations. Bruylant

Chetail V (ed) (2007) Mondialisation, Migration et Droits de l’Homme: le Droit International en Question. Bruylant

Chetail V, Bauloz C (eds) (2013) Research handbook on international law and migration. Edward Elgar

Chetail V, De Bruycker P, Maiani F (eds) (2016) Reforming the Common European Asylum System. Martinus Nijhoff

Chetail V, Flauss J-Fr (eds) (2001) La Convention de Genève du 28 juillet 1951 Relative au Statut des Réfugiés 50 Ans après: Bilan et Perspectives. Bruylant

Cholewinski R (2019) The global compact for safe, orderly and regular migration: what now with standards? In: Minderhoud P e.a., Caught in between borders. Citizens, migrants and humans, Liber Amicorum Elspeth Guild. Wolf Legal Publishers, p 315

Cholewinski R, Perruchoud R, MacDonald E (eds) (2007) International migration law. Developing paradigms and key challenges. T.M.C. Asser Press

Costello C (2015) The human right of migrants and refugees in European law. Oxford University Press

Costello C, Mann I (eds) (April 2020) Border justice: migration and accountability for human rights violations. German Law Journal, Volume 21 - Special Issue 3

Crépeau F (1995) Droit d’Asile, de l’Hospitalité aux Contrôles Migratoires. Bruylant

Crépeau F, Nakache D, Atak I (eds) (2009) Les Migrations Internationales Contemporaines. Une Dynamique Complexe au Cœur de la Globalisation, Presses Universitaires de Montréal

De Bruycker P, Urbaño de Sousa C (eds) (2004) The emergence of a European Asylum Policy, L’Émergence d’une Politique Européenne d’Asile, Academic Network for Legal Studies on Immigration and Asylum Law in Europe, Réseau Académique d’Études Juridiques sur l’Immigration et l’Asile en Europe, Bruylant

Dembour M-B (2015) When humans become migrants. Study of the European Court of Human Rights with an Inter-American Counterpoint. Oxford University Press

Duez D (2008) L’Union Européenne et l’Immigration Clandestine. De la Sécurité Intérieure à la Construction de la Communauté Politique, Presses des Éditions de l’Université de Bruxelles

Dustmann C (2015) Migration: economic change, social challenge. Oxford University Press

Friðriksdóttir B (2019) Challenges to the human rights principle of non-discrimination in implementation of the global compact for safe, orderly and regular migration? In: Minderhoud P e.a., Caught in between borders. Citizens, migrants and humans, Liber Amicorum Elspeth Guild, Wolf Legal Publishers, p 327

Gammeltoft-Hansen T, Vedsted-Hansen J (eds) (2016) Human rights and the dark side of globalisation: transnational law enforcement and migration control. Routledge

Goldner Lang I (2020) Towards “Judicial Passivism” in EU migration and asylum law? In: Ćapeta T, Goldner Lang I, Perišin T (eds) The changing European Union: a critical view on the role of law and courts. Hart Publishing

Goodwin-Gill G, McAdam J (2007) The refugee in international law, 3rd edn. Oxford University Press

Goodwin-Gill G, Weckel P (eds) (2015) Migration and refugee protection in the 21st century: legal aspects. The Hague Academy of International Law Centre for Research, Martinus Nijhoff

Groenendijk K (2013) Commentaar Europees Migratierecht, Sdu Uitgevers

Guild E, Grant S, Groenedijk K (eds) (2017) Human rights of migrants in the 21st century. Routledge

Hailbronner K, Thym D (eds) (2016) EU immigration and asylum law. Commentary, 2nd edn. C.H. Beck, Hart, Nomos

Hathaway JC (2005) The rights of refugees under international law. Cambridge University Press

Hathaway JC, Foster M (2014) The law of refugee status, 2nd edn. Cambridge University Press

Leboeuf L, Foblets M-C (eds) (2020) Humanitarian admission to Europe: the law between promises and constraints. Nomos and Hart Publishing

Martin SF (2014) International migration. Cambridge University Press

Minderhoud P, Mantu S, Zwaan K (eds) (2019) Caught in between borders. Citizens, migrants and humans, Liber Amicorum Elspeth Guild. Wolf Legal Publishers

Mitsilegas V, Moreno-Lax V, Vavoula N (eds) (2020) Securitising asylum flows: deflection, criminalisation and challenges for human rights. Brill

Moraru M, Cornelisse G, De Bruycker Ph (eds) (2020) Law and judicial dialogue on the return of irregular migrants from the European Union. Hart Publishing

Moreno-Lax V (2017) Accessing asylum in Europe: extraterritorial border controls and refugee rights under EU law. Oxford University Press

Nascimbene B (ed) (2001) Expulsion and detention of aliens in the European Union – L’Éloignement et la Détention des Étrangers dans les États Membres de l’Union Européenne. Giuffrè, 602 p

Newland K (2019) Global governance of international migration 2.0: what lies ahead. Washington, D.C., Migration Policy Institute, 2

Opeskin B, Perruchoud R, Redpath-Cross I (eds) (2012) Foundation of international migration law. Cambridge University Press

Peers St, Moreno-Lax V, Guild E, Garlick MV (eds) (2012–2015) EU immigration and asylum law: text and commentary, 2nd edn, 3 vols. Martinus Nijhoff

Perruchoud R, Tomolova K (2007) Compendium of international migration law instruments. T.M.C. Asser Press

Plender R (2015) Issues in international migration law. Brill-Nijhoff

Ramji-Nogales J, Spiro P (eds) (2017) Symposium on Framing Global Migration Law. Am J Int Law Unbound 111(1):1–2

Sarolea S (2006) Droits de l’Homme et Migrations, De la Protection du Migrant aux Droits de la Personne Migrante. Bruylant

Shachar A (2020) The shifting border: legal cartographies of migration and mobility. Manchester University Press

Simon G (2015) Dictionnaire des Migrations Internationales: Approche Géohistorique. Armand Colin

Spencer S, Triandafyllidou A (eds) (2020) Migrants with irregular status in Europe. Springer

Stalker P (2000) Workers without frontiers. The impact of globalization on international migrations. Lynne Riener

Thym D (2019) Between “Administrative Mindset” and “Constitutional Imagination”. The role of the Court of Justice in immigration, asylum and border control policy. Eur Law Rev 44:138–158

Thym D (eds) (2020) Collection of articles on the ‘EU Pact on Migration and Asylum’. Odysseus network blog. https://eumigrationlawblog.eu/series-on-the-migration-pact-published-under-the-supervision-of-daniel-thym/

Van Amersfoort H (1995) Migration: the limits of governmental control. New Community No. 2, 243–257

Vedsted-Hansen J (2019) The normative potential of the migrant compact. In: Minderhoud P e.a., Caught in between borders. Citizens, migrants and humans, Liber Amicorum Elspeth Guild. Wolf Legal Publishers, p 335

White M (eds) (2016) International handbook of migration and population distribution. Springer

Wrench J, Rea A, Ouali N (eds) (1999) Migrants, ethnic minorities and the labour market. MacMillan Press

Annex 2: Questionnaire for the Preparation of National Reports (2014)

1.1 Introduction

Human migrations have been with us throughout history. For some societies, migration constitutes a way of life or is even a matter of survival; these are the nomadic and semi-nomadic societies. These are the exception today, however. More often, migratory movements have left their mark on the history of a country and account at least in part for the more or less pluralistic nature of a society, be it its demography or the ethnic, religious or cultural identities that are called upon to live together within one state. This observation continues to be pertinent: human mobility has probably never been as intense as today, taking a number of different forms, of which some are truly unprecedented. This is the case, for instance, among communities—increasingly numerous—which maintain intense links, often simultaneously, with several states. Depending on the forms of life adopted, these may be links with the state of origin and that of residence, or links fostered with different states, where one person would go through a succession of shorter or longer periods of one’s life with which it maintained contacts and/or individual interests. The literature in this field treats such situations sometimes as cases of ‘circular migration’ and sometimes as ‘transnational situations’. The rapid democratisation of air travel since the 1970s, as well as the multiplication of the means of long-distance communication, has rendered the political boundaries between states much more porous.

In the face of this reality, the migratory policies of states differ. Generally speaking, one can distinguish three types of response: the first is of a reactive, defensive nature, consisting in reinforcing the supervision of external boundaries of the country and no longer authorising new migration other than by way of exception, for instance on humanitarian grounds. The second response is also restrictive in nature, but consists in nevertheless authorising pre-selected migratory flows for which the borders remain open, depending notably on the particular economic necessities of the country or diplomatic interests (good relations with certain countries). Permission to immigrate is in such cases dictated by consideration of specific advantages that a country hopes to gain from a selective migration policy; this explains why priority is sometimes given to certain types of diplomas, and sometimes to temporary and/or seasonal contracts, or to the nationals of certain countries.

It is rare, however, for countries to limit themselves exclusively to the first or the second response. In practice, most migration policies combine the two approaches, namely, the principle of prohibiting new migration is maintained, but at the same time a country may show flexibility and understanding vis-à-vis certain humanitarian situations (notably in terms of asylum, family reunification and/or regularisation campaigns) and also authorises, to a certain extent, the arrival of people who it may be hoped will benefit the country—temporarily or permanently by their presence. This combined form of migration policy, restrictive and yet at the same time flexible, constitutes in a sense a third type of response, one that is pragmatic and eclectic. It is articulated in different ways, often accompanied by bilateral or multilateral agreements committing countries to a common policy of border control. There are three possible motives for a state to coordinate its policy with that of other states: first, the desire to render as efficient as possible the decision to maintain a restrictive migration policy; these include, for instance, the Schengen Accords and/or the instruments drawn up within the framework of Dublin II, as well as certain agreements entered into by the EU and the so-called transit countries. A second motive is that of economic necessity, with states agreeing among themselves on the contingents that might be authorised to migrate, and on the conditions for such authorisation. In some cases, the economic motive may be accompanied by other motives such as contributing in a sustainable manner to the development of the country of origin (departure); this is the idea behind the ‘mobility partnerships’ drawn up recently by the EU. But one might also cite the United Nations Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (signed 18 December 1990)—resulting from the work of the International Labour Office (ILO)—which many states have nevertheless to this day hesitated to ratify. Finally, a third motive is that of respect for human rights and for human dignity in particular. The illustration that comes to mind here is the United Nations’ 1951 Geneva Convention on the status of refugees, which commits signatory states to respecting the right of every persecuted person to seek protection in a state other than his or her own. Today, the majority of states the world over are thus bound by a series of accords with other states, often rendering their migration policy more complex and, above all, explaining why their sovereignty is often significantly reduced. The decision-making power in respect of migration is shared between several levels of competence, and distributed across various decision-making spaces. One can rightly speak of ‘multi-layered governance’ in this respect, to use a term currently in vogue.

The questionnaire below is divided into two parts. The first is intended to enable national reporters to submit a report on the topic of migration and law that inventories the principal legal instruments that bind the state and public authorities in matters of migration, and identifies a number of—major—problems that arise in practice, namely, the concrete application of these instruments; it is further intended to signal any important recent developments. In the second part, national reporters are asked to situate the principal of legal rules on migration in force in their jurisdiction within a broader historical and international context. More specifically, they are asked to show the impact of history and of certain recent developments, in particular on the manner in which a country’s domestic law regulates the right of entry by persons of foreign origin and to what extent the existing normative framework succeeds in adjusting to the new realities of international mobility of persons. The teams are asked to give equal weight, if possible, to both parts of the questionnaire; the two parts are complementary to each other.

1.2 PART I: Migration and Residence

Migration and residence designate the problems regarding the entry and right of persons of foreign nationality to reside in a country, as well as, where applicable, their removal. What conditions/restrictions are imposed on entry and residence?

1.2.1 Prefatory Remarks

This initial part of the questionnaire is not intended to force the hand of national reporters, and they should not feel obliged to study or inventory statutes that may be unimportant or irrelevant within a country’s domestic legislation. The aim is, rather, to enable foreign readers to follow the major tendencies that emerge within a given legislative, administrative and judicial policy regarding the conditions governing entry to and residence in a country by foreign nationals, and to gain a better understanding of the various forms of protection (internal and international) available, and how these have changed over time.

The reporters should devote particular attention to the statutes which they consider deserve closer examination, whether because they give rise to specific legal questions or because they provide a good illustration of the type of migratory policy (restrictive, flexible, pragmatic, etc.) currently being pursued by the country in question. It goes without saying that the statutes that apparently offer adequate protection, namely, protection that is most suited to a foreign national’s particular situation should likewise be mentioned. The statistics requested are essentially illustrative in nature: they are intended simply to give an idea of the figures involved, and to emphasise notable trends.

1.2.2 Residence

Which authorities are competent in matters of migration and residence?

What legal texts or other sources (legislation and/or case law) regulate access to the territory, residence and removal of persons of foreign nationality?

The reporters should seek to delineate as clearly and as succinctly as possible the rules that apply to the following situations:

• 1. Short stays (tourism, family visits, etc.): principles; reception; obstacles; visas; removal; possibility of going to another country; recent statistics.

• 2. Long stays: prior residence permits; visas; recent statistics, etc.

• 3. Right to family life: the right to family life covers not only family reunification but all matters relating to the possibility for a foreigner (or a national) to create family ties with foreigners. Also covered, therefore, are issues relating to so-called sham or fraudulent marriages and to certain aspects of private international family law, recent statistics.

• 4. Stays by privileged categories of foreigners, who derive specific rights from international accords. Within the EU, for instance, the nationals of member states enjoy advantages under the principle of the free movement of people. In addition to the free movement of persons enjoyed by European nationals within the territory of the EU, there are other statutes and instruments of European migration policy relating to the migration of workers from third countries: permanent resident status, the blue card and the development of a policy of economic migration (‘mobility partnerships’), etc. Recent statistics.

• 5. Asylum and the rights flowing therefrom: Asylum is a form of protection granted by a state within its territory. Asylum is granted to persons who are unable to obtain protection in their country of origin or residence, notably for fear of persecution on grounds of their race, religion, nationality, political opinions or membership in a particular social group. The criteria for awarding asylum are set out in the above-mentioned Geneva Convention. Moreover, in some countries, notably in Europe in recent years, the authorities with competence for asylum can grant asylum seekers subsidiary protection. This form of protection is intended for persons who do not qualify as refugees under the terms of the Geneva Convention but who face a real risk of being subjected to death penalty or execution, torture, inhuman or degrading punishment, or to serious threats to their life or person by reason of indiscriminate violence in situations of international or internal armed conflict (this applies only to civilians, not members of the military). Recent statistics.

• 6. Regularisation: criteria; obstacles; status; recent statistics.

• 7. Humanitarian status (serious illness or other exceptional circumstances): criteria; recent statistics.

• 8. Student and researcher status: criteria; recent statistics.

• 9. Diplomatic staff: criteria; recent statistics.

• 10. Change of status: criteria; obstacles; recent statistics.

• 11. Human trafficking: consists essentially of exploiting people in various sectors. It may involve sexual exploitation or economic exploitation. National action plan; institutions involved; identification; protection; criminalisation; recent statistics.

• 12. People smuggling (smuggled migrants): consists of assisting the illegal immigration of foreigners in order to make a profit. Punishment; identification; protection; criminalisation; recent statistics.

• 13. Economic migration: authorisation; residence; self-employment; social security; recent statistics; etc.

• 14. Absence and return

• 15. Detention upon arrival and with a view to removal: criteria; minors; vulnerable persons; criminalisation; recent statistics.

• 16. Right of appeal and main features of the appeal procedure

• 17. Legal aid: conditions and principle; other forms of assistance provided by the state or other institutions; recent statistics.

• 18. Foreign minors: identification; protection; recent statistics.

1.2.3 Nationality and Statelessness

Nationality is the legal tie that binds a person to a state of which he or she is citizen. It may be acquired through one or both parents (jus sanguinis), by connection to one’s place of birth (jus soli), or on the basis of a choice.

There are other models as well, however, such as where minors automatically obtain nationality by collective effect when their parents obtain a new nationality. As a general rule, the legal effects of obtaining nationality should not be overestimated, since differential treatment based on nationality are today regarded in most cases as discriminatory and therefore unacceptable. Regarding the right of entry to and residence in a country, however, other than in situations where international accords provide for exceptions and/or particular facilities, possession of the nationality of a country remains a key distinguishing criterion: only a national is guaranteed to have automatic right of residence.

• 1. Acquisition

• 2. Loss and recovery

• 3. Statelessness

• 4. Procedure

• 5. Recent statistics

1.2.4 Social Security/Reception

Everyone has the right to a life of dignity, without restrictions based on nationality or age. How is this principle guaranteed in domestic law? In theory, social assistance is a universal right. Is the right to social assistance in fact guaranteed, and if so, in what form? Certain conditions may be imposed on beneficiaries, such as availability to work, prior recourse to those responsible for paying support, or the signature of a social integration contract.

What does assistance consist of? Financial aid, material aid (such as housing), a service (hot meals, help with job seeking, training), etc.

What form of access do foreign nationals have to physical and mental health care? Situation of vulnerable persons: children, pregnant women, older persons, those with chronic illnesses, persons who were unable to receive care in their country of origin, etc.?

Are there avenues for appeal if one is refused social assistance?

What rights do people without a residence permit enjoy, or those for whom it is administratively impossible to return?

Are there any restrictions on the schooling of children with foreign nationality, depending on their status?

Recent statistics.

1.3 PART II: Migration in a Broader Perspective

The second part uses a multidisciplinary approach intended to provide additional information, supplementing the legal component of the report, regarding the types of migratory flows faced by the countries under study, their origin(s) and the particular challenges they pose in terms of the law.

Throughout history, human beings have migrated from one country to another; however, the forms of protection they could enjoy varied according to policies and circumstances. In this part of the questionnaire, the reporters are invited to attend to the different factors that can explain why a country may in a given case opt for a restrictive migration policy while in another situation, it adopts greater flexibility.

The questionnaire takes account of four types of factors: the impact of the history and particular relationships inherited from the past and that continue to make themselves felt today in a country’s foreign policy; the role played by human rights protection in situations involving persons of foreign nationality; the need for new policies in the face of new forms of cross-border mobility; and, finally, the thorny questions regarding the direction in which the migration policy of the given state seems to be heading.

1.3.1 The Impact of History

In many countries today, migration and its consequences are at the centre of numerous public debates. The issue is often closely linked to the way(s) migratory flows are perceived: some forms of migration are perceived as more problematic than others.

The arrival and settlement in a country of populations with whom the (majority) society has no affinity—whether historic, social, cultural, ethnic, political and/or religious—often increases the lack of understanding for the phenomenon of migration. When the issue becomes so sensitive that it gives rise to political debates, it may happen that these debates impact on the policy. Such debates may induce a change in the orientation taken in migration policy, with a view to limiting certain forms of migration as much as possible. In light of this, it would be important for national reporters to provide information, particularly of a statistical nature, that could shed light for the reader on the migratory situation and demographic dynamics of the populations of immigrant origin currently residing on the territory of the country.

What is the link between changes in migratory flows, regarding their nature and scale, and the migration policy currently being pursued by the legislative, administrative and judicial authorities of the country in question? Are certain types of migration encouraged and others avoided or even severely limited? What types of information—as precise as possible—on migratory flows (both inflows and outflows) and residence by foreigners, whether legal or illegal, can help explain certain differences in the treatment, in law, of the status of foreign nationals? Can the history of the country and of its international relations (for example, colonial/and or economic ties) help explain why the legal regime applied to certain categories of foreigners is more (or less) restrictive than the one imposed on other contemporary migrant groups?

1.3.2 The Role of Human Rights and Humanitarian Protection

The protective role of the principle of respect for the fundamental rights of foreigners, by means of international instruments and case law, has increased significantly in recent years. It ensures support for persons who are vulnerable by virtue of their residency status. Such support appears to be increasingly effective: by means of the case law and through day-to-day disputes on issues of entrance and residence permits that oppose public services on the one hand, and migrants and those defending their rights on the other, the principle of respect for these rights is making an increasing impact on every aspect of a foreigner’s situation: entry and residence, the right to family life, access to work and to a profession, access to nationality, detention and removal, etc.

The national reporters should seek to illustrate how this principle of respect is implemented in a country’s domestic law. In particular, they should take an interest in the way in which international instruments and case law concerning the fundamental rights of foreigners are transposed into national law. Are fundamental rights systematically taken into account, for example, in the legal aid offered to foreign nationals who make a request or enter a complaint? Are people correctly informed of their rights and obligations, and of the legal procedures and avenues of appeal? Are they steered, when necessary, toward the appropriate specialised institutions or services? What role has case law in particular played in examining specific problematic situations from the perspective of fundamental rights? Which court decisions have made it possible to expose certain dysfunctionalities in public administration or to open the way to new interpretations of specific legal texts?

In their analysis of the role played by the principle of respect for fundamental rights in the area of migration, the reporters should preferably focus not only on individual situations involving foreigners, but also on the political and legal framework that determines these situations. Given that, generally speaking, the transposition of international human rights law in the national legal order has in many countries taken place (and continues to do so) by way of case law, why is it that the initiative was not taken by the legislative and administrative bodies?

1.3.3 The Need for New Policies in the Face of Unprecedented Forms of Cross-Border Mobility (Adapting Law to the New Realities of Migration)

Migration continues to be an extremely complex question and is taking ever newer forms. In recent years, migratory flows have revealed several new profiles of cross-border mobility, including that of the migrant who retains contacts with several countries at the same time. The latter profile is constantly growing, either in the form of individuals holding several nationalities (multiple citizenship) or in many other forms, all of which have in common the fact that a person combines several centres of interest and that these centres are distributed over several countries: it may be that the person resides sometimes in one country, sometimes in another, or he or she has a family or assets in a country other than that of his or her habitual residence, etc. The scholarly literature confirms this tendency, categorising it either as ‘cross-border’ or applying other terms such as ‘external citizen’, to cite but one concept.

The law has difficulty following the often rapid development of new forms of mobility. Here and there, new legal statuses are put in place that help manage the situation by specifying the rights a person may hope to hold in one and/or other legal order, without having to fear the loss of protection in the other country. But these provisions are at an experimental stage only. An example of these is the status of ‘long-term resident’ (LTR) which, in European law, is reserved to third-country nationals—on certain conditions—who wish to exercise the right to free movement; another example is the status of a person in a situation of ‘circular migration’.

As far as possible, the national reporters should take an interest in the way in which, in domestic law, solutions currently offered or under development can enable persons who maintain (close) legal ties with several countries to find appropriate arrangements for their legal affairs, not only in terms of their residency rights but also with regard to other aspects of their legal position (social, family, professional, etc.).

Migration law is faced with new situations as well—due notably to the effect already mentioned—that increasingly give rise to protection of the principle of respect for human rights in matters of migration: this effect can place a foreign national sometimes in a position where it is administratively impossible for him or her to return to the home country, and sometimes gives rise to the need for subsidiary or temporary protection. In some countries, migrants are fleeing environmental catastrophes, and are classed as ecological and/or economic refugees. What is the role here of international law in general and/or of particular arrangements between countries, if any?

The aim of this question is to focus as closely as possible on the capacity of domestic law to adapt to these new situations, putting into perspective as well the legal solutions proposed: what is the legal basis given for these new forms of protection? Is it temporary protection, designed for urgent cases without the intention of continuation, or is it possible to speak of a new direction taken in law regarding the growing complexity, the world over, of the phenomenon of migration?

1.3.4 The effect of Thorny Questions on the Direction Taken by Migration Policies in Certain States. Specific Questions

The final part of the questionnaire examines particularly thorny questions. These will vary according to the country and context. We cannot, obviously, inventory every potential delicate situation that may arise. Therefore, we propose a few specific questions, by way of example:

• administrative detention of children and families;

• ‘limping’ situations and the absence of civil registry documents in international family situations;

• ‘double jeopardy’, i.e. systematic expulsion of migrants who have committed criminal offences (often regardless of the severity of the latter), even in cases where they migrated at a young age and have been socialised in the country to which they have migrated and no longer have any ties to their ‘country of origin’;

• legal protection for unaccompanied minors;

• regularisation for medical reasons;

• sham marriages;

• use of biometric data by the administration in charge of issuing residence permits;

• the debate on the ratification of the United Nations Convention on the Protection of the Rights of All Migrant Workers and Members of their Families;

• legal recognition and protection of rights (civil, political, economic and social) of migrants in an irregular situation;

• absence of punishment of employers of migrants in an irregular situation;

• refusal of multiple citizenship.

These are specific questions, and reporters are encouraged to analyse these specific aspects in such a way as to demonstrate to readers the general orientation of a country’s migration policy. How are these thorny questions addressed by the authorities? In seeking solutions, do they adopt a defensive, law-and-order response that tends towards an increasingly restrictive and suspicious migration policy? Or, on the contrary, does a more open, humanitarian attitude prevail?

In sum, and without seeking to be directive in nature, the questionnaire for this second part seeks to approach migration by placing it in a wider context and addressing four categories of questions in particular:

• 1. What is the impact of history on the developments regarding migration in your country?

• 2. What is the role of fundamental rights and humanitarian protection?

• 3. What types of regulations and legislation are there or should there be that take mobility into consideration?

• 4. What are some of the thorny questions and the responses offered?

Annex 3: List of Countries and Reporters

Argentina

• Agustín Parise—Associate Professor, Faculty of Law, Maastricht University, Director of Scientific Studies of the International Association of Legal Science (IALS)

Australia

• Mary Crock—Professor of Public Law, Faculty of Law, The University of Sydney

• Daniel Ghezelbash—Associate Professor, Macquarie Law School, Macquarie University

• Sudrishti Reich—Senior Lecturer, ANU College of Law, The Australian National University

• Rebekah Stevens—Public Policy Advisor

Belgium

• Sylvie Sarolea—Professor of Law, Faculty of Law and Criminology, Université catholique de Louvain

• Luc Leboeuf—Senior Research Fellow, Max Planck Institute for Social Anthropology, Department of Law and Anthropology, Halle, Germany

Brazil

• José Augusto Fontoura Costa—Associate Professor, Faculty of Law, University of São Paulo

Canada

• France Houle—Associate Dean and Associate Professor, Faculté de droit, Université de Montréal

• Karine Mac Allister, Director – Customer Experience CAIJ, Montreal, Canada

Colombia

• Adriana Zapata—Director of the Department of Business Law, University Externado of Colombia

Croatia

• Helga Špadina—Assistant Professor, Chair of Labour and Social Law, Faculty of Law, University of Osijek

Denmark

• Silvia Adamo—Associate Professor, Faculty of Law, University of Copenhagen

Dominican Republic

• Paola Pelletier—Human Rights Specialist, Santo Domingo

Estonia

• Kristiina Albi—Advisor for migration matters of the Estonian Chancellor of Justice

France

• Nicole Guimezanes—Professor Emeritus, Faculty of Law, University Paris-Est Créteil Val de Marne (UPEC)

Germany*

• Constantin Hruschka—Senior Research Fellow, Max Planck Institute for Social Law and Social Policy, Munich, Germany)

Greece

• Zoe Papassiopi-Passia—Emerita Professor of Law, Aristotle University of Thessaloniki

• Dimitrios Varadinis—Lawyer, Coordinator of PRAKSIS Legal Department

Japan

• Atsushi Kondo—Professor of Law, Faculty of Law, Meijo University

Macau

• Denis de Castro Halis—Associate Professor, Faculty of Law, UNESA, Brazil; Senior Instructor, University of Macau, Macau SAR

Malta

• Jean-Pierre Gauci—Director of The People for Change Foundation; Senior Research Fellow in Public International Law and Director of Teaching and Training at BIICL

• Christine M. Cassar—co-Founder and co-Director of The People for Change Foundation; Monitoring, Evaluation, Accountability and Learning Advisor at Save the Children UK

• Patricia Vella de Fremeux (Mallia)—Professor and Head of the Department of International Law, Faculty of Laws, University of Malta

New Zealand

• Caroline Sawyer—Barrister and Solicitor, Petone (near Wellington), New Zealand

Norway

• Vigdis Vevstad—Independent Adviser and Researcher, Sonconsult and Norwegian Center for Human Rights, University of Oslo

• Solveig Marie Igesund—Advisor, Norwegian People’s Aid

Poland

• Barbara Mikołajczyk—Professor and Head of Department, Department of International Public Law and the European Law, University of Silesia

Portugal

• Nuno Piçarra—Professor of Law, Faculty of Law, Nova University of Lisbon

Romania

• Irina Zlătescu—Professor of Comparative Law, European Law and Human Rights Law at the National University of Political Studies and Public Administration of Bucharest

Singapore

• Jaclyn L. Neo—Associate Professor, Faculty of Law, National University of Singapore; Director, Centre for Asian Legal Studies

• Vinna Yip—LLB (Hon) Student, Faculty of Law, National University of Singapore

South Africa

• Roni Amit—Assistant Clinical Professor and Director of the Terry West Civil Legal Clinic, College of Law, University of Tulsa

Switzerland*

• Constantin Hruschka—Senior Research Fellow, Max Planck Institute for Social Law and Social Policy, Munich, Germany)

United Kingdom

• Sonia Morano-Foadi—Professor of Law and Director of the Centre for Legal Research and Policy Studies, School of Law, Oxford Brookes University

• Luke Campbell—Lecturer in Law, Oxford Brookes University

• Macca Teclehaimanot—Immigration Advisor and qualified Solicitor in the UK

• Casey Alves—LLM Human Rights Law graduate and Research Assistant at the School of Law, Oxford Brookes University

United States

• Peter W. Schroth—Attorney, Connecticut and New York; Adjunct Professor of Law, Western New England University

• Linda L. Foster—Legal Writer/Attorney, New York

Venezuela

• Allan R. Brewer-Carías—Professor, Central University of Venezuela

*Reports on Germany and Switzerland were specifically requested for this publication.

Annex 4: Main International Texts and Bodies in Migration Law

1.1 International Instruments

While there is no general text of international law on foreigners, there are, however, certain important provisions within the general instruments for the protection of human rights (A), and two instruments protecting specific categories of persons (B) deserve to be mentioned here.¹²⁴

1.1.1 General Instruments

Three important texts must be mentioned.

1.1.1.1 Universal Declaration of Human Rights (UDHR)

Adopted in Paris, it was proclaimed by the United Nations General Assembly Resolution 217 A (III) on 10 December 1948. Although non-binding, it remains the source of the other texts protecting human rights. A few articles concern migration:

• Article 13: freedom of internal movement and the right to leave any country;

• Article 14: the right to seek asylum;

• Article 15: the right to a nationality.

1.1.1.2 International Covenant on Civil and Political Rights (ICCPR)

Adopted in New York by the General Assembly of the United Nations in Resolution 2200 A (XXI) of 16 December 1966, entry into force on 23 March 1976:

• Article 2: principle of non-discrimination;

• Article 7: prohibition of torture, cruel, inhuman or degrading treatment or punishment;

• Article 12: liberty of internal movement, freedom to leave any country, right to enter one’s own country;

• Article 13: procedural guarantees for the expulsion of lawfully resident foreigners.

The monitoring body of the ICCPR, the United Nations Human Rights Committee (HRC) has issued general comments concerning foreigners, including:

• General Comment No. 15 of 1986 on the position of aliens under the Covenant;

• General Comment No. 20 of 1992 on Article 7 ICCPR;

• General Comment No. 27 of 1999 on Article 12 ICCPR.

The HRC also issues reports on individual communications where the state has accepted this complaint mechanism (Article 41).

The International Court of Justice can also hear disputes between states that involve migrants. Although rare, this is again a good example of cross-references for building a jus commune.

ICJ, 30 November 2010, Republic of Guinea v. DRC (ex parte Diallo). Mr Diallo, a Guinean businessman, was expelled from the Democratic Republic of Congo after having lived there for 32 years. The Court condemned the country for violation of Articles 12 (expulsion) and 9 § 2 (detention) of the ICCPR. The Court accepted the concurring interpretation of the texts on human rights protection held by different competent bodies: The United Nations Human Rights Committee, the African Committee on Human Rights, the European Court of Human Rights and the Inter-American Court of Human Rights (paras. 66–68). The Court also emphasised that ‘an expulsion must not be arbitrary in nature, since protection against arbitrary treatment lies at the heart of the rights guaranteed by the international norms protecting human rights’ (para. 65).

1.1.1.3 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)

Adopted in New York by the General Assembly of the United Nations in Resolution 39/46 of 10 December 1984, it entered into force on 26 June 1987. This Convention further develops Article 7 ICCPR. In particular, Article 3, which prohibits expulsion or return (refoulement) to a country where there are substantial grounds for believing that a person would be in danger of being subjected to torture. This Article formalises the case law on Article 3 ECHR (principle of non-refoulement and protection par ricochet [indirect protection]).

The monitoring body for the Convention, Committee Against Torture (CAT), has developed a significant body of case law. Protocol No. 1 has also created a sub-committee on the prevention of torture, which carries out visits and makes recommendations and observations.

1.1.1.4 Office of the United Nations High Commissioner for Human Rights

The High Commissioner for Human Rights, established by Resolution 48/141 of the General Assembly of the United Nations of 20 December 1993, is mandated to coordinate all the programmes of the United Nations relating to human rights. The website of the Office of the High Commissioner for Human Rights has a fairly complete database with links to the different texts and international bodies protecting human rights (www.ohchr.org).

1.1.2 Instruments Protecting Specific Categories of Persons

Four texts should be mentioned here, two of which are cited by most national reports: the Geneva Convention on Refugees and the New York Convention on the Rights of the Child. With the exception of South Africa, the Convention on the Elimination of all forms of Racial Discrimination is rarely cited. With the exception of Venezuela, countries of emigration, no other state included in this volume has ratified the International Convention on the Protection of the Rights of All Migrant Workers (see Sect. 4.3 on social rights¹²⁵).

1.1.2.1 Convention Relating to the Status of Refugees

Adopted in Geneva on 28 July 1951 by a conference of plenipotentiaries on the status of refugees and stateless persons convened by Resolution 429 (V) of the General Assembly of the United Nations of 14 December 1950, entry into force on 22 April 1954.

This Convention defines the concept of a refugee (Article 1), imposes the principle of non-refoulement (Article 33) and sets out the recognised rights of the refugee (Articles 2 to 46). Initially limited in time and space, it is supplemented by the Protocol Relating to the Status of Refugees, adopted in New York on 16 December 1966, opened for signature on 31 January 1967 and entered into force on 4 October 1967.

All the countries featured in this volume have ratified the Geneva Convention and/or the Protocol of New York. However, one important country, namely India, did not ratify the Refugee Convention, and Turkey, another important country, had reservations about the application of the Geneva Convention and the Protocol only to persons who have become refugees as a result of events occurring in Europe. This raised a question about conformity to the so-called agreement between EU and Turkey to solve the European asylum crisis. For instance, Syrian migrants sent back from Greece to Turkey are not covered by the Geneva Convention in Turkey. The EU Court did not consider this issue, judging that the ‘agreement’ was a declaration of the Member States, not a decision of the European Council (EU), and, consequently, did not fall within the jurisdiction of the Court.¹²⁶

The Office of the United Nations High Commissioner for Refugees (HCR) was established by Resolution 428 (V) of the General Assembly of the United Nations on 14 December 1950. Unlike the United Nations Committee, it is not tasked with monitoring the Geneva Convention. Rather, this is a responsibility for the institutions set up by each State party.

The HCR ‘assumes the function of providing international protection’ to refugees and ‘seeking permanent solutions’ for them (Article 1). In some countries, it participates in the decision-making bodies on the recognition of refugee status, sometimes alongside the national authorities.

1.1.2.2 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Family

Adopted in New York by the General Assembly of the United Nations in Resolution 45/158 of 18 December 1990, it entered into force on 1 July 2003.

As its title indicates, this Convention has to do with migrant workers and it specifically recognises the rights of both regular and irregular migrants. For this reason, it has been ratified almost exclusively by countries of emigration, for instance, by Argentina, Colombia and Venezuela. But some countries that did ratify the Migrant Worker Convention are becoming countries of immigration, e.g. Mexico and Morocco.

A Committee for the protection of the rights of all migrant workers and members of their family (Committee on Migrant Workers, CMW) was set up to ‘examine the application’ of the Convention (Article 72). If the state party agrees, individual communications can be submitted to the Committee, which issues comments (Article 77).

1.1.2.3 International Convention on the Elimination of All Forms of Racial Discrimination

Adopted in New York by the General Assembly of the United Nations in Resolution 2106A (XX) of 21 December 1965, it entered into force on 4 January 1969. This Convention asks states to commit themselves to prohibit and eliminate racial discrimination in all its forms and to guarantee the equal rights of all before the law, without distinction of race, colour or national or ethnic origin, in particular in the enjoyment of the right to free movement and to choose one’s place of residence within a state, the right to leave any country, including one’s own, and to return to one’s country as well as the right to a nationality (Article 5).

1.1.2.4 Convention on the Rights of the Child

Adopted in New York by the General Assembly of the United Nations in Resolution 44/25 of 20 November 1989, it entered into force on 2 September 1990. The Convention on the Rights of the Child sets out rights relating to family reunification and draws the attention of the states to the situation of children seeking refugee status. It guarantees children certain rights in the event of migration, even the migration of the members of his/her family, separately or together. It establishes the principle of the best interests of the child: ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’. (Article 3, 1°). Article 10 imposes the obligation on the states to examine ‘in a positive, humane and expeditious manner’ requests for family reunification. The right to be recognised as a refugee is considered in Article 22, which requires states to ‘take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties’. Several national reports cite the New York Convention, in particular Article 37, on the question of depriving children of their liberty (see Sect. 4.1.1 on detention).

Other international institutions give opinions and issue reports on questions relating to migration. The following bodies, in particular, deserve a particular mention here:

1.1.2.5 International Organization for Migration (IOM)

The IOM was founded in 1951 by the Intergovernmental Conference on Migration in Brussels. This inter-state organisation, which counted 173 Member States in 2019, is intended to ‘facilitate international cooperation on migration matters’. It brings out numerous publications. The IOM also serves as the secretariat for the Global Forum on Migration and Development (GFMD) and several regional intergovernmental consultations that offer important opportunities to exchange information and informal decisions. In certain countries, the IOM also has programmes to help irregular migrants return voluntarily to their country of origin (ww.iom.int).

1.1.2.6 Global Commission on International Migration

Founded in 2003 at the initiative of thirty states with the support of the then Secretary-General of the United Nations Organisation, Kofi Annan, the Global Commission published a report in 2005 titled, ‘Migrations in an Interconnected World: New Directions for Action’, which stresses the need to achieve great coherence in the management of international migration, in particular by cooperation among states, among regional entities and among organisations, but also by adopting a principled approach that recognises the fundamental rights of migrants.

1.1.2.7 UN Global Compact

The Global Compact reiterates the goals and principles formulated and adopted by the United Nations. It is firstly based on The Sustainable Development Goals (SDG), whereby the role of migrants/migration with respect to sustainable development is addressed in the UN 2030 Sustainable Development Agenda (https://www.un.org/sustainabledevelopment/development-agenda/, targets 8.8, 10.7, 17.18). Louise Arbour, who was Chief Prosecutor of the International Criminal Tribunals for former Yugoslavia and Rwanda, former Justice of the Canadian Supreme Court, former High Commissioner for Human Rights, was appointed in March 2017 as UN Special Representative for International Migration. After a ‘New York Declaration for Refugees and Migrants’ in September 2016, the UN General Assembly (UNGA) decided to develop two Global Compacts:¹²⁷ One for refugees, under the direction of the UNHCR¹²⁸ and another for ‘safe, orderly and regular migration’. An intergovernmental conference in Marrakesh adopted this Global Compact for Migration (GCM), Morocco, in December 2018 and formally endorsed by the UNGA on 19 December 2018. This is still a work in progress (see General Report, Sect. 7.2 and the foreword of François Crépeau).

1.1.2.8 United Nations Special Rapporteur on the Human Rights of Migrants

The Special Rapporteur is tasked with drawing up reports and proposals. From 2011 to 2017, Professor François Crépeau of McGill University in Montreal held the post. Since 2017, it is Felipe Gonzáles Morales, Professor at the University Diego Portales in Santiago de Chile and the University Carlos III in Madrid.

1.1.2.9 International Labour Organization (ILO)

In addition to various recommendations on migrant workers, the ILO adopted Convention C 143 on Migrant Workers on 24 June 1975 (www.ilo.org).

1.1.2.10 Hague Conference on Private International Law

Traditionally focused on drafting private international law agreements, The Hague Conference has produced studies and offered services to states as the site for drawing up certain types of international cooperation on migration matters (www.hcch.net).

1.2 Regional Instruments

1.2.1 Europe

1.2.1.1 Council of Europe

1.2.1.1.1 General Instruments

1.2.1.1.1.1 European Convention on Human Rights and Fundamental Freedoms (ECHR)

Opened for signature in Paris on 4 November 1950, it entered into force on 3 September 1953:

• Article 1: scope includes everyone within the jurisdiction of one of the High Contracting Parties;

• Article 3: prohibition of torture (interpretation ‘par ricochet’ [indirectly] in the case of expulsion);

• Article 6: right to a fair trial (in principle not applicable under the law of foreigners, unlike Article 13);

• Article 8: right to respect for private and family life (verified for admission to a country through family reunification and in case of expulsion);

• Article 13: right to an effective remedy;

• Article 14: prohibition of discrimination (in convention rights, by contrast with Protocol 12);

• Article 15: derogation in time of emergency;

• Article 16: restrictions on political activity of aliens;

• Prot. 1, Article 1: protection of property;

• Prot. 4, Article 2: freedom of movement, right to leave any country;

• Prot. 4, Article 3: prohibition of expulsion of nationals;

• Prot. 4, Article 4: prohibition of collective expulsion of aliens;

• Prot. 7, Article 1: procedural safeguards relating to the expulsion of a ‘lawfully resident’ alien;

• Prot. 12: general prohibition of discrimination.

Respect for the application of the Convention is monitored by the European Court of Human Rights (ECtHR, Strasbourg). The Court can receive applications from individuals after all domestic remedies have been exhausted (Articles 34–35). Disputes relating to foreigners are heavily represented (www.echr.coe.int).

1.2.1.1.1.2 European Social Charter (ESC)

Opened for signature in Turin on 18 October 1961 and entry into force on 26 February 1965, a revised version was opened for signature in Strasbourg on 3 May 1996, which entered into force on 1 July 1999:

• Articles 7 and 17: rights of children and young persons to special protection;

• Article 18: right to engage in any gainful occupation in the territory of any one of the others, providing for the application of ‘existing regulations in a spirit of liberality’;

• Article 19: right of migrant workers and their families to protection and assistance;

• Article 31: right to accommodation;

• Article E: non-discrimination.

The European Social Charter is monitored by a Committee of independent experts known as the European Committee on Social Rights (ECSR) (Article C, former Article 25). Claims can be made by representative organisations. The Committee of independent experts prepares a report containing its observations (Additional Protocol of 9 November 1995, Articles 1 and 9). An annex to the Charter specifies that, in principle, its provisions apply only to aliens residing lawfully. However, the Committee also recognised some fundamental rights to irregular migrants such as the right to food and the right to housing (ECSR, 20 October 2009, D.E.I. v. the Netherlands; 23 October 2012, D.E.I. v. Belgium) (www.coe.int/socialcharter).

1.2.1.1.2 Instruments Protecting Specific Categories of Persons

The Council of Europe adopted numerous resolutions and recommendations on foreigners in general and on refugees in particular. There are few binding texts, in particular:

• the European Convention on Establishment, adopted in Paris on 13 December 1955;

• the European Convention on the Legal Status of Migrant Workers, signed in Strasbourg on 24 November 1977;

• the European Convention on Preventing and Combating Violence Against Women and Domestic Violence, signed in Istanbul on 11 May 2011, entered into force on 1 August 2014.

1.2.1.2 European Union

1.2.1.2.1 Primary Law

1.2.1.2.1.1 Treaty on the Functioning of the European Union (TFEU)

Signed in Lisbon on 13 December 2007, entry into force on 1 December 2009:

• Articles 18 to 25: non-discrimination and EU citizenship;

• Articles 45 to 62: free movement of workers, right of establishment, free movement of services;

• Articles 77 to 80: asylum and migration.

1.2.1.2.1.2 Charter of Fundamental Rights of the European Union

Proclaimed in Nice on 7 December 2000, it was revised in Strasbourg on 12 December 2007, and recognised as having ‘the same value as the Treaties’ in Lisbon on 13 December 2007 (Article 6, § 1 TEU):

• Article 1: human dignity;

• Article 18: right to asylum;

• Articles 20–21: non-discrimination;

• Articles 39 to 46: citizenship;

• Article 47: right to an effective remedy.

In principle, ‘the Charter shall not extend in any way the competences of the Union as defined in the Treaties’ (Article 6 TEU) and thus serves to interpret EU law. The Charter applies only when the institutions and bodies of the Union or the Member States ‘are implementing Union law’ (Charter, Article 51). The exact scope of the Charter will be built step by step by the case law of ECJ. This question was debated in relation to the request of Syrian migrants for a humanitarian visa. As this category of visa would be a long-term residence visa and not a short-term visa valid for a maximum 90 days, the Court decided that this was outside the scope of the EU Community Code on visas, with the consequence that the Charter of Fundamental Rights could not apply.¹²⁹ On the contrary, for the free movement of persons within the EU, the Court did use the Charter, at least in one case, to include into the scope of EU law a purely internal situation which is normally outside the scope of application of the free movement in EU law.¹³⁰

1.2.1.2.2 Secondary Legislation

There is an abundance of secondary legislation in the form of regulations and directives. Such laws have governed the freedom of movement within the EU for a long time (1968), dating back from the time of the European Economic Community. These texts have, to a large extent, been recast into a single directive, namely Directive 2004/38 of 29 April 2004 on the right of the citizens of the Union and their family members to move and reside freely within the territory of the Member States (the ‘citizen’s’ directive).

More recently (in the 2000s), the EU adopted texts relating to migration policy. Only six of them are cited here, three on immigration and three on asylum:

• Directive 2003/86 of 22 September 2003 on the right to family reunification (Family Reunification Directive);

• Directive 2003/109 of 25 November 2003 concerning the status of third-country nationals (TCNs), who are long-term residents (Long-term Residents Directive or the LTR Directive);

• Directive 2008/115 of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (Return Directive);

• Regulation 2016/399 of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code);

• Regulation 604/2013 of 26 June 2013, establishing the criteria and mechanisms for determining which Member State is responsible for examining an application for international protection lodged in one of the Member States by a third-country national (Dublin III Regulation, since it follows upon the Dublin (I) Convention of 14 June 1990 and the Dublin (II) Regulation 343/2003);

• Directive 2011/95 of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection for a uniform status for refugees or persons eligible for subsidiary protection and for the content of the protection granted (recast ‘Qualification Directive’).

All EU laws are controlled by the European Court of Justice. This is mainly done through preliminary rulings, issued at the request of a court or tribunal of an EU Member State made to the European Court of Justice for an interpretation of an EU law (Article 267 TFEU) (www.curia.europa.eu. For all texts and case law: europeanmigrationlaw.eu).

In 2020, the European Commission advanced a series of communications and legislative proposals, as summarised in ‘A new Pact on Migration and Asylum’, 23 September 2020, COM(2020)609 final. See the collection of articles directed by Daniel Thym on the Odysseus network blog, https://eumigrationlawblog.eu/series-on-the-migration-pact-published-under-the-supervision-of-danielthym/.

1.2.1.2.3 European Migration Network

By Council Decision 2008/381 of 14 May 2008, the EU set up a European Migration Network (EMN) intended to provide up to date and comparable information on migration policy in each Member State ‘with a view to supporting policymaking in the European Union in these areas’ (Article 1).

1.2.1.2.4 Odysseus Network

With the support of the European institutions, university professors have created an academic network of legal studies on immigration and asylum in Europe (https://eumigrationlawblog.eu/).

1.2.2 Americas

1.2.2.1 General Instrument

1.2.2.1.1 American Convention on Human Rights

Opened for signature in San José, Costa Rica, on 22 November 1969, entry into force on 18 July 1978:

• Article 1: applies to ‘all persons subject to the jurisdiction’ of one of the State parties;

• Article 5: right to physical, mental and moral integrity;

• Article 22: right to freedom of movement and residence.

This ‘Pact of San José’ is monitored by the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. The Commission can hear individual petitions (Article 44). The Court can hear petitions from the Commission and from the State parties. The states may also consult the Court and request its opinion (Article 64). Upon the request of Mexico, the Court issued an important opinion on the situation of Mexican workers in the US (Opinion No. 18 on the legal status and rights of undocumented migrant workers, issued on 17 September 2003 (OC-18/03) (see infra, III, C, about social rights) (www.corteidh.or.cr).

1.2.2.2 Instruments Protecting Specific Categories of Persons

1.2.2.2.1 Inter-American Convention on Territorial Asylum and Inter-American Convention on Diplomatic Asylum

Both signed in Caracas on 28 March 1954.

1.2.2.2.2 North American Free Trade Agreement (NAFTA, Mexico—United States—Canada)

Dated 17 December 1992, Articles 1601 to 1608 are on temporary entry for businesspersons.

1.2.2.2.3 Cartagena Declaration (Colombia) on Refugees

Although this is just a declaration, the text is applied in several South and Central American States and contains a broader definition of who is a refugee, which may offer a prima facie protection in cases of mass influx, like in the African Convention for Refugees.

1.2.3 Africa

1.2.3.1 General Instrument

1.2.3.1.1 African Charter of Human and Peoples’ Rights

Adopted in Nairobi on 28 June 1981 by the conference of heads of states and heads of governments of the Organisation of African Unity (OAU), which eventually became the African Union (AU); entry into force on 21 October 1981:

• Article 5: human dignity;

• Article 12: freedom of internal movement, right to leave, right to asylum, prohibition of mass expulsion.

The Charter is monitored by the African Commission of Human and Peoples’ Rights (Articles 30 and 45) and by the African Court of Human and Peoples’ Rights (Protocol adopted in Ouagadougou on 9 June 1998). Since 2006, the Court is located in Arusha, Tanzania. Individual petitions are possible if the State party has consented and the Court has given leave (Article 34 (6) of the Charter and 5 (3) of the Protocol). But so far it has seen relatively little activity.

1.2.3.2 Instrument Protecting Specific Categories

1.2.3.2.1 OAU Convention Governing Specific Aspects of the Refugee Problem in Africa

Adopted in Addis Ababa on 10 September 1969, entry into force on 20 June 1974.

1.2.4 Other Regional Bodies Dealing with Migration

Several regional bodies have adopted the principle of freedom of movement.

• Africa: WAEMU (West African Economic and Monetary Union) and ECOWAS (Economic Community of West African States), ECCAS (Economic Community of Central African States), SADC (Southern African Development Community), EAC (East African Community).

• Asia: ASEAN (Association of Southeast Asian Nations), TPP (Trans-Pacific Partnership), Pacific Alliance.

• Americas: NAFTA (North American Free Trade Agreement), Mercosur (Southern Common Market).

In future, these integration mechanisms may develop into five continental integrated unions: North America, South America, Europe, Asia, and Africa. In the area of international migration, several intergovernmental, and thus state consultation processes, are developing within regional frameworks.

The IOM counts various regional consultative processes on migration (RCP) (see iom.int, in the ‘countries’ tab, sorted by continents).

The UN Global Compact for Safe, Orderly and Regular Migration (GCM) is also an intergovernmental, regional, and international process that is still in progress (see supra, 1.2 and Sect. 7).