Issues in International Migration Law 9789004208520

Table of contents :
Preliminary material
pp.: i–viii
Nationality Law and Immigration Law
pp.: 1–11 (11)
Global Migration: Current Trends and Issues
pp.: 13–25 (13)
Migration for Employment
pp.: 27–80 (54)
Access to Social Protection for Non-Citizen Migrants: The Position of Irregular Immigrants
pp.: 81–90 (10)
Capricious Games of Snakes and Ladders: The Nexus of Migration and Integration in Light of Human Rights Norms
pp.: 91–110 (20)
The Admission of Refugees
pp.: 111–117 (7)
Family Reunification at the Interface of EU Law and the European Convention on Human Rights
pp.: 119–141 (23)
The Right to Leave Any Country Including One’s Own
pp.: 143–177 (35)
Deportation and Expulsion
pp.: 179–200 (22)
Exceptional Duties to Admit Aliens
pp.: 201–222 (22)
Free Movement of Persons and Regional International Organisations
pp.: 223–260 (38)
The Asylum Seeker’s Right to Free Legal Assistance and/or Representation in EU Law
pp.: 261–284 (24)
Annex I: EU Immigration and Asylum Law
pp.: 285–292 (8)
Annex II: EU Immigration and Asylum case-law
pp.: 293–298 (6)
Index
pp.: 299–303 (5)

Citation preview

Issues in International Migration Law

Issues in International Migration Law

Edited by

Sir Richard Plender

leiden | boston

Library of Congress Control Number: 2014958617

isbn 978-90-04-20851-3 (hardback) isbn 978-90-04-20852-0 (e-book) Copyright 2015 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Nijhofff and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper.

Table of Contents

Preface

vii

1

Nationality Law and Immigration Law Richard Plender

2

Global Migration: Current Trends and Issues Ajay Bailey

13

3

Migration for Employment Ryszard Cholewinski

27

4

Access to Social Protection for Non-Citizen Migrants: The Position of Irregular Immigrants Gijsbert Vonk

81

Capricious Games of Snakes and Ladders: The Nexus of Migration and Integration in Light of Human Rights Norms Dora Kostakopoulou

91

5

6

The Admission of Refugees Guy S. Goodwin-Gill

7

Family Reunification at the Interface of EU Law and the European Convention on Human Rights Adam Weiss

1

111

119

vi

Table of Contents

8

The Right to Leave Any Country Including One’s Own Dimitry Kochenov

143

9

Deportation and Expulsion Clifford Mailer

179

10

Exceptional Duties to Admit Aliens Alessia di Pascale

201

11

Free Movement of Persons and Regional International Organisations Sara Iglesias Sánchez

223

The Asylum Seeker’s Right to Free Legal Assistance and/ or Representation in EU Law Elspeth Guild

261

Annex I: EU Immigration and Asylum Law

285

Annex II: EU Immigration and Asylum case-law

293

Index

299

12

Preface

This work presents the revised papers resulting from a conference held at the Faculty of Law of the University of Groningen under the auspices of the Groningen Centre for Law and Governance and the Department of European and Economic Law at the Faculty, during my tenure of a Visiting Professorship there. The conference brought together scholars from a number of countries to examine a series of issues in international migration law. The opening chapter, which I have contributed, sets the scene by looking at the relationship between nationality law and immigration law. Ajay Bailey, who is a demographer at Groningen, then looks at current trends and issues in global migration. Ryszard Cholewinski, from the International Labour Offfijice in Geneva, deals extensively with the problems of migration for employment, looking extensively at the work of the ILO in this fijield, as well as at the work of various regional organisations in diffferent parts of the world. He demonstrates that ‘international migration governance is clearly underpinned by the rule of law’. Gijsbert Vonk, a colleague at Groningen, then takes up the batting, looking at the position of irregular immigrants in access to social protection for non-citizen migrants. Dora Kostakopoulou, from Warwick University, then looks at the nexus of migration and integration in the light of Human Rights norms, noting that contemporary civic integration regimes ‘decry the passing of the old world of national monoculturalism and closure’, rather than embracing the new world of the 21st century. Guy Goodwin-Gill, from All Souls College, Oxford, discusses the admission of refugees, observing that protection is the question and the challenge for today. Adam Weiss, lately of the Aire Centre in London, looks at family reunifijication at the interface of EU law and the ECHR, noting that the convergence of these two areas of law— a process that has only just begun—will, in the coming years, afffect a large number of areas of the law, including criminal law, asylum law, and the right to property.

viii

Richard Plender

Dimitry Kochenov, a colleague in the Department at Groningen, examines the right to leave any country including one’s own. He concludes that ‘the possibility to leave reinforces liberty at the level of individuals and the respect of the laws at the level of societies.’ Cliffford Mailer, a UK immigration judge, and Barrister, discusses UK and European law on deportation and expulsion, drawing in particular on cases with which he has dealt. Alessia di Pascale then discusses exceptional duties to admit aliens, concluding that an obligation to admit aliens is foreseeable as a result of the emergence of the human rights paradigm, particularly where the family unit, the non-refoulement principle, and the prohibition of torture and degrading treatment are afffected. Sara Iglesias Sánchez, from the University of Cádiz, examines free movement of persons and regional international organisations, drawing attention to the trend towards coordination and interaction between diffferent and overlapping regional processes. Elspeth Guild then concludes this work with an examination of the asylum seeker’s right to free legal assistance and/or representation in EU law, taking account of the recasting of the Asylum Procedures Directive, while retaining the discussion of its predecessor, which is still applicable in Ireland and the United Kingdom. I am most grateful to the contributors for their willingness to come to Groningen for what was an exceptionally stimulating conference, and to provide papers for this book. Suryapratim Roy most kindly worked on the copy-editing of the papers and prepared them to be sent to Nijhofff. My colleague in the Department, Laurence Gormley worked on the proofs, updated the web-references and prepared the index, which our Departmental Secretary, Karien Galli, typed up. I am most grateful to them for their input. My special thanks also go to David Oleson, for kind permission to reproduce his ‘Parquet Deformation’ design on p. 109, and to Professor Steve Peers, of Essex University for permission to use the information he has collated which is reproduced in Annexes I and II. International migration law continues to be of major importance, and I hope that this collection of papers will widen horizons in the debate and assist in achieving an understanding of the fact, often forgotten by those who prefer rhetoric to understanding, that migration is a truly global phenomenon. While Europe is at the forefront of population changes and debates on the control and management of migration, there are major issues and crises in many areas across the globe, and various contributions to this volume rightly draw attention to them. Richard Plender

1

Nationality Law and Immigration Law Richard Plender*

I.

Introduction

Immigration law characteristically determines the circumstances and conditions in and on which those who are not citizens of a State are permitted to enter and remain within it. The right of a citizen, subject to very few exceptions, to enter and reside in his own State is widely regarded as axiomatic. Article 3(2) of the Fourth Protocol to the European Convention on Human Rights simply proclaims that ‘[n]o one shall be deprived of the right to enter the territory of the state of which he is a national’. An anomaly arises in the European Union since Article 18 of the Treaty on the Functioning of the European Union, headed ‘Non-discrimination and Citizenship of the Union’, provides that ‘[w]ithin the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited’. Since freedom to enter and reside in any Member State is a matter within the scope of application of the treaties, Member States have committed themselves to prohibit, subject to any special provisions contained in the founding treaties, discrimination between their own nationals and nationals of other Member States as regards admission to and residence in their territories. Moreover, the Council of Europe Convention on Nationality does not only establish principles and rules relating to the nationality of natural persons and rules regulating military obligations in cases of multiple nationality, to which the internal law of States Parties shall conform but records that ‘the aim of the Council of Europe is to achieve greater unity between its members’.1 *

Sir Richard Plender QC, LL.D. is Visiting Professor at the University of Groningen and former High Court Judge (England and Wales).

Sir Richard Plender (ed.), Issues in International Migration Law Copyright 2015 Koninklijke Brill NV. Printed in The Netherlands. ISBN 978-90-04-20851-3 pp. 1-11

2

Chapter 1 – Richard Plender

II.

Traditional International Law

It remains the case that outside Europe national rather than international rules determine who is, and who is not, to be considered as a national of a State. Nevertheless, international rules determine the extent to which one State must accept another’s determination that an individual is to be treated as a national of the second State.2 1.

The Tunis-Morocco Nationality Decrees Case

The Permanent Court of International Justice itself, in the Case concerning the Nationality Decrees issued in Tunis and Morocco stated that the question whether a matter was solely within the reserved domain is essentially a relative one, which depends on the state of international relations. In circumstances in which Great Britain enjoyed capitulatory rights against the Bey of Tunis, so that the latter could not afffect British subjects with nationality, it was not open to France to impose its nationality upon British subjects presumed to be subjects of the Bey.3 III.

Modern Trends

In the period since 1972, some change has taken place in respect of the freedom of States with respect to the grant of nationality. There has been a reduction in the signifijicance of the linkage between nationality and allegiance: a reduction lamented by those who oppose the increase in multiple nationality that has accompanied it. 4 Moreover the substantial growth in world migration which taken place in the intervening years has tended to strengthen the nexus between nationality and the grant of passports and rights of residence.5 1

European Convention on Nationality (signed 6 November 1997) ETS 166.

2

R. Y. Jennings and A. Watts (eds.), Oppenheim’s International Law, 9th ed. Vol. I, (Oxford University Press 2008), p. 852.

3

Nationality Decrees Issued in Tunis and Morocco (French Zone) (Advisory Opinion) PCIJ Rep Series B No 4.

4

On 16 October 2010, the disclosure of the fact that the then Dutch Christian Democrat Deputy Minister for health and sport Marlies Veldhuijzen van Zanten-Hyllner is a dual national prompted Geert Wilders, leader of the PVV, to call for the resignation of the deputy minister.

5

Randall Hänsen and Patrick Weil, Towards a European Nationality: Citizenship, Immigration and Nationality Law in the EU (Palgrave MacMillan 2010), write in the opening sentence of

Nationality Law and Immigration Law

1.

The Nottebohm Case

The International Court of Justice, in the Nottebohm case, drew the distinction, which is now commonplace, between the grant and the opposability of nationality.6 Mr. Nottebohm was German by birth although he had spent the greater part of his life in Guatemala, after migrating there in 1905. He still possessed German nationality when, in October 1939, he applied for naturalisation in Liechtenstein. He sometimes went to Germany on business and continued to have business connections in Germany. He also paid a few visits to a brother who had lived in Liechtenstein since 1931. In 1939, he travelled to Hamburg, and later to Liechtenstein where he submitted an application for naturalisation. He supplied a bank statement concerning his assets, and undertook to make payments to the Commune of Mauren (in Liechtenstein) and to the Principality, and also to pay an annual naturalisation tax and dues in connection with the proceedings. On October 15th, 1939, the Commune of Mauren conferred citizenship upon Mr. Nottebohm and requested the Government to transmit it to the Diet for approval. He paid the taxes specifijied in his undertakings and took the oath of allegiance. A fijinal arrangement concerning liability to taxation was concluded on October 23rd. A certifijicate of nationality was produced, signed on behalf of the Government of the Principality and dated October 20th, 1939, testifijied that Mr. Nottebohm was natu-

their book: “Throughout Europe the politics of immigration have become the politics of nationality.” See also Dimitry Kochenov, ‘Double Nationality in the EU: An Argument for Tolerance’ (2011) 17 ELJ 323. Beyond Europe, the question of multiple nationality has been earnestly debated of late, some contending that there is s right protected by international law to hold more than one citizenship. See Peter H Schuck, Citizens, Strangers, and In-Betweens: Essays on Immigration and Citizenship (Basic Books 1998); Alfred M Boll, Multiple Nationality and International Law (Martinus Nijhoff 2006); Mark Fritz, ‘Pledging Multiple Allegiances’ Los Angeles Times (Los Angeles, 6 April 1998). 6

Nottebohm Case (Liechtenstein v Guatemala (Second Phase) [1955] ICJ Rep 4: “The Court does not propose to go beyond the limited scope of the question which it has to decide, namely whether the nationality conferred on Nottebohm can be relied upon as against Guatemala in justification of the proceedings instituted before the Court. (...) Article 1 of The Hague Draft Convention of 1930 reads as follows: It is for each State to determine under its own law who are its nationals. This law shall be recognized by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognized with regard to nationality.”

3

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Chapter 1 – Richard Plender

ralised on October 13th, 1939, whereupon, under German law, his German nationality was forfeited: a point emphasised by two of the dissenting judges. The real issue before the International Court of Justice was whether the nationality conferred on Mr. Nottebohm by Liechtenstein could be validly invoked as against Guatemala for the purposes of the admissibility of the application. The Court (by a majority) reasoned that in order to be capable of being invoked against another State, nationality must correspond with the factual situation: According to the practice of States, to arbitral and judicial decisions and to the opinions of writers, nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred, either directly by the law or as the result of an act of the authorities, is in fact more closely connected with the population of the State conferring nationality than with that of any other State. Conferred by a State, it only entitles that State to exercise protection vis -a-vis another State, if it constitutes a translation into juridical terms of the individual’s connection with the State which has made him its national.

On the facts of the case before it, the Court reasoned that Mr. Nottebohm had always retained his connections with members of his family who had remained in Germany and had business connections with that country, although he had lived outside Germany since 1904. The Court reasoned that at the time of Mr. Nottebohm’s naturalisation, Germany had been at war for more than a month, and that there was nothing to indicate that the application for naturalisation was motivated by any desire to dissociate himself from the Government of that country. Mr. Nottebohm’s actual connections with Liechtenstein were, in the view of the Court, ‘extremely tenuous’. No settled abode, no prolonged residence in that country at the time of his application for naturalisation: the application indicates that he was paying a visit; the transient character of this visit was confijirmed by its request that the naturalisation proceedings should be initiated and concluded without delay. No intention of settling there was shown at that time or realized in the ensuing weeks, months or years—on the contrary, he returned to Guatemala very shortly after his naturalisation and showed every intention of remaining there. There was no allegation of any economic interests or of any activities exercised or to be exercised in Liechtenstein, and no manifestation of any intention to transfer all or some of his interests and his business activities to Liechtenstein.

Nationality Law and Immigration Law

The Court concluded that naturalisation was asked for not so much for the purpose of obtaining a legal recognition of Mr. Nottebohm’s membership in fact in the population of the Principality, as it was to enable him to substitute for his status as a national of a belligerent State that of a national of a neutral State. Guatemala was under no obligation to recognize a nationality granted in such circumstances. Two features of the judgment appear prominent after fijifty years. The fijirst is the distinction drawn between the sovereign right of States to determine an individual’s nationality for the purposes of the State’s internal law. The Court expressly defijined the question before it a follows: In the present case it is necessary to determine whether the naturalization conferred on Nottebohm can be successfully invoked against Guatemala, whether, as has already been stated, it can be relied upon as against that State, so that Liechtenstein is thereby entitled to exercise its protection in favor of Nottebohm against Guatemala.

The second feature that appears prominent after half a century is the weight attributed by the Court to residence in Liechtenstein when assessing whether Mr. Nottebohm had a ‘real and substantial’ connection with that State. For the Court it was relearned that Mr. Nottebhom had no settled abode, ‘no prolonged residence in that country at the time of his application for naturalization’, and that ‘[n]o intention of settling there was shown at that time or realized in the ensuing weeks, months or years’. On the other hand, the Court did not suggest that the real and substantial connections that undoubtedly existed between Mr. Nottebohm and Guatemala inhibited Guatemala from treating Mr. Nottebohm as an enemy alien. We may infer that the grant of nationality by a State is efffective to entitle the State to protect the individual against other States only if the person naturalised has both the nationality of the fijirst State under its domestic law and a real and substantial connection with that State; and that in determining whether a real and substantial connection exists it may be relevant to enquire whether the individual had a prolonged period of residence in the State claiming him as its national by way of naturalisation. Conversely, the establishment of a real and substantial connection between an individual and a State is insufffijicient to inhibit the State from treating the individual as an alien: even as an enemy alien. In a dissenting opinion, Judge Read stated in part as follows: “Nationality, and the relation between a citizen and the State to which he owes allegiance, are of such a character that they demand certainty. When one considers the occasions for invoking the relationship—emigration and immigration; travel; treason; exercise of

5

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Chapter 1 – Richard Plender

political rights and functions; military service and the like—it becomes evident that certainty is essential.” There must be objective tests, readily established, for the existence and recognition of the status. That is why the practice of States has steadfastly rejected vague and subjective tests for the right to confer nationality –sincerity, fijidelity, durability, lack of substantial connection–and has clung to the rule of the almost unfettered discretionary power of the State, as embodied in Article 1 of The Hague Draft Convention of 1930. For the reason stated in the beginning of this chapter, the trend towards equating nationality with residence has been particularly visible in the European Union, where the Court of Justice has evinced a tendency to equate the nationality of a Member State with enjoyment of the right of residence guaranteed to European citizens by the law of the Union. IV.

European Decisions Consistent with Nottebohm

The European Court of Justice’s fijirst decisions on the efffijicacy of nationality were consistent with traditional international law. In Micheletti, an individual with dual Argentine and Italian nationality arrived in Spain wanting to practise as an orthodontist.7 He was refused a residence permit by the Spanish authorities, because in such instances Spanish legislation refers to the last or efffective residence, which in this case was Argentina. The Court held that it was not open to Spain to deny the efffijicacy of the grant of nationality by Italy so as to deprive the applicant of rights granted to all European citizens by the EC Treaty. The judgment leaves unafffected the question of Spain’s freedom of oppose the efffijicacy of similar grants of nationality for the purposes of international law. Likewise, in Martínez Sala, an unemployed Spanish woman was denied a child-care allowance in Germany ordinarily granted to German nationals without discretionary assessment because she did not possess a valid residence permit.8 Invoking Article 18 of the EC Treaty, the Court of Justice held that an unemployed Spanish woman, as a citizen of the Union lawfully resident in Germany was entitled to protection against discrimination in comparison with German nationals even though she did not qualify as a ‘worker’ within the meaning of Article 48 of the EC Treaty. The case may be viewed as a straightforward interpretation of Article 18 of the Treaty on the Functioning of the European Union, which leaves questions of public international law unafffected. But in Rottmann, the 7

Case C-369/90 Mario Vicente Micheletti and others v Delegación del Gobierno en Cantabria [1992] ECR I-4239.

8

Case C-85/96 María Martínez Sala v Freistaat Bayern [1998] ECR I-2691.

Nationality Law and Immigration Law

German authorities withdrew German nationality from a naturalised individual who had been charged with deception in Germany and had travelled to Austria.9 The Court of Justice ruled that ‘it is not contrary to European Union law, in particular to Article 17 EC, for a Member State to withdraw from a citizen of the Union the nationality of that State acquired by naturalisation when that nationality was obtained by deception, on condition that the decision to withdraw observes the principle of proportionality’. The proviso indicates that circumstances may arise in which a person will be regarded by the European Union law as a national of a State which denies that he possesses that nationality: a situation not contemplated in traditional international law, which continues to maintain that national law is, in the fijirst instance, the source of a State’s right to claim an individual as its national.10 1.

The Rottman Case—Analogues Elsewhere

The decision in Rottmann is not without analogues in the jurisprudence of courts outside the system of the European Union. In Stewart v Canada,11 the applicant had been born in Scotland in December 1960. At the age of seven, he emigrated to Canada with his mother; his father and older brother were already, at the time, living in Canada; and he had lived there ever since. For most of his life, the applicant considered himself to be a Canadian citizen. It was only when he was contacted by immigration offfijicials because of a criminal conviction that he realized, that legally, he was only a permanent resident, as his parents had never requested Canadian citizenship for him during his infancy and youth. Between September 1978 and May 1991, the applicant was convicted on forty-two occasions, mostly for petty offfences and trafffijic offfences. Under Canadian federal law, as it stood at the time, a permanent resident in Canada had to be ordered to be deported from Canada if an adjudicator in an immigration enquiry were satisfijied that the defendant has been convicted of certain specifijied offfences under the Immigration Act. If the applicant were deported, he would not be able to return to Canada without the express consent of the Canadian Minister of Employment and Immigration. Furthermore, because of his convictions, the applicant would be barred from readmission to Canada. The 9

Case C-135/08 Janko Rottmann v Freistaat Bayern [1998] ECR I-1449.

10

Dimitry Kochenov, ‘Janko Rottmann v Freiestadt Bayern, Judgment of 2 March 2010 (Grand Chamber)’ (2010) 47 CML Rev 1831.

11

Stewart v Canada (1982) 6 Selected Decisions of the Human Rights Committee 49; Dimitry Kochenov, ‘Post-National Citizenship in Europe: The EU as a Welfare Rights Generator’ (2009) 15(2) CJEL 169, 177.

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Chapter 1 – Richard Plender

applicant submitted that these circumstances revealed violations of various articles of the International Covenant on Civil and Political Rights including Article 12(4) which states that ‘[n]o one shall be arbitrarily deprived of the right to enter his own country’. Dealing with that provision, the Human Rights Committee considered that there was no a priori indication that the applicant’s situation could not be subsumed under Article 12(4) ICCPR, and therefore concluded that this issue should be considered on its merits and decided that the communication was admissible in so far as it may raise issues under Articles 12(4) ICCPR. The decision suggests that protection against arbitrary deprivation of the right to reside in one own country extends to guard against deportation from a country in which a person maintains as his own is efffectively although he is not legally a national of it. 2.

The Case Beldjoudi v France

In Beldjoudi v France the applicant had been born in France of parents who were then French and had had French nationality although he himself maintained Algerian nationality jure sanguinis.12 Following his conviction of a number of serious offfences for which he had been sentenced to eight years’ imprisonment, the French Minister of the Interior decided that he should be deported from France for the maintenance of ordre public. Observing that he had married a French woman, and that his close relatives all had French nationality and that he had been resident in France for several decades, that he had spent his whole life in France, that he had been educated in French and appeared not to know Arabic and that he appeared not to have any links with Algeria, the European Court of Human Rights concluded that the decision to deport the applicant, if put into efffect, would violate Article 8 of the European Convention of Human Rights, which guarantees the right to private and family life, home and correspondence. Giving a Concurring Opinion, Judge Martens expressed the view that integrated aliens should be no more liable to deportation than nationals. The relevant part of his Opinion reads as follows: [M]ere nationality does not constitute an objective and reasonable justifijication for the existence of a diffference as regards the admissibility of expelling someone from what, in both cases, may be called his ‘own country’. I therefore have no hesitation in answering the above question in the afffijirmative. I believe that an increasing number of mem12

Beldjoudi v France App no 12083/86 (ECtHR, 26 February 1992); Kochenov (n 10).

Nationality Law and Immigration Law ber States of the Council of Europe accept the principle that such ‘integrated aliens’ should be no more liable to expulsion than nationals, an exception being justifijied, if at all, only in very exceptional circumstances. My own country [Belgium] is one of those States and since 1981 – with the exception of the period 1986-1989 so is France.

V.

Current Trends: Dual Nationals and Second Generation Migrants

In countries whose nationality law permits multiple nationality, this is commonly regarded as the natural consequence of disharmony in national laws, as for instance where a person is born in a State applying the jus soli principle to parents whose national law applies jus sanguinis. But in countries whose nationality law does not permit multiple nationality, the phenomenon is often regarded with suspicion if not with hostility. Possession of dual nationality is inconsistent with the view that nationality denotes the holder’s ultimate allegiance. It is less liable to be accepted in States whose nationality law has its origins in tribal unity than elsewhere. In recent years, toleration of multiple nationality has grown in Western Europe, under the influence of host States’ desire to integrate formally migrants who are either reluctant to relinquish their nationalities or origin or come from States which do not permit expatriation. Germany and Austria usually do not allow dual citizenship except for persons who obtain more than one citizenship at the time of birth,13 but Germans and Austrians can apply for a permit to keep their citizenship (Beibehaltungsgenenigung) before taking a second one. In Germany the conditions for naturalisation include eight years’ residence in the Federal Republic and entitlement to permanent residence, express commitment to the Constitution by a declaration of loyalty, ability to support one’s self and one’s family without social security benefijit, absence of criminal convictions, profijiciency in the German language manifested in a test and knowledge of the legal and societal system of Germany. In Austria the conditions for naturalisation include ten years’ residence in the Republic of which fijive (with a residence permit) must be in the years immediately preceding the application for citizenship. The applicant must have a positive attitude towards Austria, have no criminal convictions, he most present no danger to public peace or order, have a secure income and certifijied profijiciency in the German language. He must have knowledge of the democratic order and history of Austria and of the

13

Staatsangehörigkeitsgesetz 1970 (Federal Law Gazette I) amended by Act 90 of 5 February 2009.

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Chapter 1 – Richard Plender

federal province responsible for his naturalisation.14 Spain allows dual citizenship with some Latin-American countries (Argentina, Bolivia, Chile, Costa Rica, the Dominican Republic, Ecuador, Guatemala, Honduras, Nicaragua, Paraguay, and Peru), Andorra, Portugal, the Philippines and Equatorial Guinea. Spain does not require citizens of these countries who wish to be naturalised there to renounce their existing citizenship.15 A further trend in European nationality laws is that identifijied by Judge Martens in Beldjoudi v France: it is application of the principle that the principle that ‘integrated aliens’ should be no more liable to expulsion than nationals. In recent years this has been expanded into a tendency to facilitate the integration of long-resident aliens by changes to naturalisation laws. A German coalition government began the process with its guidelines on naturalisation, known as the Einbürgerungsrichlinien in 1977, which provided for the naturalisation of aliens demonstrating a voluntary and lasting orientation towards Germany. On the adoption of the Auslandergesetz at the beginning of 1991 naturalisation was extended to all aliens who were legally competent, had not committed an offfence punishable by expulsion and had adequate accommodation and means of support. Spouses of naturalised aliens were also eligible for naturalisation of they met these conditions and were prepared to renounce their nationalities of origin. Since 1991 simplifijied naturalisation has been available on condition that the applicant gives up his original nationality, has been ordinarily resident in the Federal Republic for at least eighty years or in full-time education for six and has not been convicted of a criminal offfence. In practice the majority of applications for German citizenship has come from ethnic Germans and the administration of the scheme has been devolved to the Lander. In France, naturalisation is available after fijive years’ residence, on proof of good character including the absence of certain criminal convictions, and assimilation to the French population demonstrated by fluency in the French language and knowledge of the rights and duties attached to citizenship.16A mixed picture emerges in the United Kingdom. The British Nationality Act 1981 abolished the citizenship of the United Kingdom and Colonies, which had hitherto embraced in a single status individuals deriving their citizenship from the United Kingdom itself and from existing and former colo14

Federal Law concerning Austrian Nationality 1985 (FLG 311/1985) as amended 1999, 2006 and 2010, Art 10(1).

15

This was initially done through bilateral treaties which are authorised by Art. 11.3 of the Spanish Constitution, 1978 . Art. 23.b and 24.1 of the Civil Code, 1990 also allows for legal dual nationality.

16

Code Administratif (33rd ed, Dalloz-Sirey 2010) 821.

Nationality Law and Immigration Law

nies. In place a new status, ‘British citizenship’ was applied to individuals connected with the United Kingdom, including Northern Ireland and the Channel Islands; ‘citizenship of British dependent territories’ was conferred on former citizens of the United Kingdom and Colonies associated with remaining colonies, including Bermuda and Gibraltar; and those associated with former dependencies were denominated as ‘British overseas citizens’. Thus the common citizenship, which formerly constituted a basis for total or partial exemption from immigration control of the people of the United Kingdom together with its remaining and former colonies, was abandoned. There was however new provision for naturalisation, which tended to favour those, irrespective of nationality, who had made the United Kingdom their home. The Act of 1981, as amended, provides for the naturalisation of applicants aged 18 or over who are have been free from immigration restrictions for at least one year (in practice, this requires fijive years’ lawful residence in the United Kingdom since immigration restrictions generally remain in force for the fijirst four years) and who intend to continue living in the United Kingdom, or to continue in Crown service, or the service of an international organisation, including the EU, or the service of a company established in the United Kingdom, and have established links to the United Kingdom though home, family and larger part of estate and can communicate adequately in English, Welsh or Scottish Gaelic and are of good character.17 Recently the Government has instituted naturalisation ceremonies at which successful applicants take an oath of allegiance to the Crown and are handed British passports; but at the same time it has initiated a debate on the question ‘What Does it Mean to be British?’18

17

British Nationality Act 1981 (consolidated version).

18

For instance, see the website ‘We British’ at accessed 31 March 2012.

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Global Migration: Current Trends and Issues Ajay Bailey*

“Travelling to anywhere in the world costs a maximum of $2.500. Getting smuggled into a country costs $20.000 with a faster payback time.” – International Organisation for Migration

I.

Introduction

Reduction in transport costs have increased the willingness of people to move over larger distances. It is estimated that over 3 percent of the world population live outside their country of birth.1 Migration has itself become more global as many countries are participating in the process both as sending and receiving nations. Colonial linkages provided the fijirst tracks for movement for the migrants from the colonies. This has been replaced with countries that have immigrants from many diffferent countries, social and cultural backgrounds. Compared to earlier governance mechanisms that facilitated or controlled migration the Nation state has become predominant in the policies to govern the inflow of migrants. Interestingly there are very few countries which control the outflow of migrants. There are countries such as Philippines and Indonesia which encourage emigration for the benefijits of remittances that the migrants would send back. In countries such as Moldova remittances form a major portion of the country’s gross domestic product whereas for countries *

Dr. Ajay Bailey is an assistant professor at the Department of Demography, University of Groningen

1

International Organisation for Migration, The Future of Migration: Building Capacities for Change (World Migration Report, IOM 2010) 3.

Sir Richard Plender (ed.), Issues in International Migration Law Copyright 2015 Koninklijke Brill NV. Printed in The Netherlands. ISBN 978-90-04-20851-3 pp. 13-25

14

Chapter 2 – Ajay Bailey

such as India and China who top as remittance receiving countries remittances form a very small part of their gross domestic product. The flow of remittances also plays a major role in politics and social development in the ‘home’ countries. The ability to travel and move between two cultures, two economic and political contexts, leads to enduring relationships between the two societies at the same time. Individual having such multiple identities learn to negotiate between them and inhabit an in-between liminal space. The scope of global migration is humongous in nature thus cannot be captured in its entirety in one chapter. Thus in this chapter I provide a brief overview on the current trends of global migration, a specifijic focus on Europe and Asia, current issues in migration research and further conclude with some pointers for new directions in research related to global migration. II.

Current Trends

1.

Global stock

The United States of America hosts the largest migrant stock compared to any other single country. As seen in Figure 1, of the top ten countries having the largest stock many of the countries are in Europe followed by Saudi Arabia and India in Asia. In the high-income countries migrants make up to 10 percent of the total population.2 When we compare the migrant population as a percentage of a country’s population the picture changes drastically. Qatar (86 percent), United Arab Emirates (70 percent) and Kuwait (68.8 percent) are the top three countries who have more than half or their population who are foreign-born.

2

See UNDESA, ‘Trends in International Migrant Stock: The 2008 Revision’ (July 1999) UN Doc OP/DB/MIG/Rev.2008 and the accompanied CD-Rom at accessed 25 August 2014.

Global Migration: Current Trends and Issues

Figure 1: Countries with the largest foreign born population in 2010 (in millions)3

One realises migration is a global phenomenon when one examines the cities which have more than one million foreign born. There are twenty cities across the globe that fall into this criterion: nine cities are in North America, with three in Europe, four in the Middle East, two in Asia, and two in Australia/Oceania. 4 On the other hand countries such as Russian federation, Mexico and India are the main countries of origin for the migrants. The recent World Migration Report contends that the absolute numbers of men and women migrants has increased with men remaining steady at 51 percent but the report concurs that there are large regional variations.5 The role of women in migration is also changing at the global level. Women are moving from the family reunifijication trend towards more economically motivated strategies to autonomously seek work and incomes. However, not all contexts which hire especially women are conducive to the wellbeing of the women and their families.6 3

The figure is adapted from International Organisation for Migration (n 2) 115.

4

Marie Price and Lisa Benton-Short, ‘Counting Immigrants in Cities across the Globe’ (Migration Information Source, January 2007) accessed 25 August 2014.

5

International Organisation for Migration (n 1).

6

UNCTAD, ‘Mainstreaming Gender in Trade Policy: Note by the UNCTAD Secretariat’ (19 March 2009) UN Doc TD/B/C.I/EM.2/2/Rev.1.

15

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Chapter 2 – Ajay Bailey

Women are overrepresented in the brain drain from the poorest countries of the world similarly in the OECD countries skilled women have higher propensities to migrate as compared to their male counterparts.7 2.

Europe

Europe is at the forefront of population changes and debates surrounding the control and management of immigration. According to the UN,8 one is three of all international migrants live in Europe and an estimated 72.6 million migrants in 2010 lived in Europe. Key urban centres such as London, Paris and Moscow host more than one million foreign born. The recent European Commission Report on Immigration and Asylum 2010 states that in 2009, net migration to the EU was 857.000, i.e. 63 percent of total population growth.9 Migration hence is the main driver for population growth in the EU for the present and for the future. Western European countries registered an increase of 5.6 million migrants between 2005 and 2010. While European countries have experienced large inflows of migrants what should also be noted is the sustained increase in out-flows of migrants. The three main countries experiencing these outflows are Germany, United Kingdom and Switzerland.10 With the enlargement of the EU many old member states raised alarm bells to an avalanche of migrants. Studies have shown that migrants from the New Member States (NMS) preferred to move to countries with more liberal immigration policies compared to the bordering countries such as Germany, Austria and Italy.11 Recent research shows that the patterns of migration from NMS did not create a new migration regime rather it strengthened the existing regimes, thus reinforcing the importance of the 7

For a detailed discussion, see Jean-Christophe Dumont, John P Martin and Gilles Spielvogel, ‘Women on the Move: The Neglected Gender Dimension of the Brain Drain’ (2007) IZA Discussion Paper 2920 accessed 25 August 2014; Frédéric Docquiera, B Lindsay Lowell and Abdeslam Marfoukc, ‘A Gendered Assessment of Highly Skilled Emigration Population and Development Review’ (2008) 35(2) Population and Development Review 297.

8

International Organisation for Migration (n 1).

9

Commission, ‘Annual Report On Immigration And Asylum’ (Communication) Com (2011) 291 final.

10

International Organisation for Migration (n 1).

11

Tito Boeri and Herbert Brücker, ‘Migration, Co-ordination Failure and EU Enlargement’ (2005) IZA Discussion Paper 1600 accessed 25 August 2014.

Global Migration: Current Trends and Issues

network efffect as strong predictor for migration.12 Managing external borders and granting protection to refugees and asylum seekers is still a growing challenge for the EU. In 2009, EU member states recorded 266.400 asylum applications, the number in 2010 was 257.815, a slight decrease of 3 percent. In 2010, the most important countries of citizenship of asylum-seekers in the EU were, in order: Afghanistan, Russia, Serbia (excluding Kosovo), Iraq and Somalia. In 2009, 7.147 refugees were resettled in the EU from third countries.13 3.

Asia

The stock of international migrants in Asia in 2010 is estimated to rise to 27.5 million which is just under 13 percent of the global fijigure. Many countries in Asia experience a negative net migration rate, where more people leave the country compared to the people entering it, the top four countries experiencing this loss are Sri Lanka, Lao People’s Democratic Republic, Myanmar and Philippines. An interesting case within the Asian region is that of Thailand which has moved from a net out-migration country to a country with net immigration. UNESCAP reports that between 1990 and 2005 Thailand’s migrant stock increased from 387.000 to 982.000,14 and this fijigure did not include the large number of irregular migrants. Most immigrants to Thailand are labour migrants coming from neighbouring countries. China, Bangladesh and India are among the top ten emigration countries worldwide. A large part of this flow is labour migration to the Gulf and the Asia-Pacifijic region. Due to few bilateral labour agreements between countries in these regions there exists a huge market for agents and brokers who arrange for labour contracts and visas often charging exorbitant fees from the migrants and their families.15 The ILO estimates nearly twenty-fijive million Asian workers are employed outside their country of birth and nearly two

12

Benoît A Delbecq and Brigitte S Waldorf, ‘Going West in the European Union: Migration and EU Enlargement’ (2010) Purdue University Working Paper 10/4 accessed 25 August 2014.

13

UNHCR, ‘UNHCR and the European Union’, September 2010 , accessed 25 August 2014.

14

UNESCAP, Statistical Yearbook for Asia and the Pacific 2009 (UN 2010) ch 3.

15

S Irudaya Rajan, VJ Varghese and MS Jayakumar, ‘Overseas Recruitment in India: Structures, Practices and Remedies’ (2010) Kerale Centre for Development Studies Working Paper 421.

17

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Chapter 2 – Ajay Bailey

million leave and return each year.16 Internal migration within large Asian countries such as India and China get very less attention. In India there are no offfijicial estimates of internal migration but data gathered from various smaller studies show that the construction sector alone employs 40 million migrant workers in India.17 In China due to the hukou registration system more reliable estimates emerge on the extent of internal migration. According to the UNDP, there are nearly 130 million internal migrants in China.18 Most these migrations are from rural agrarian areas to the manufacturing hubs in urban or semi-urban areas. III.

Current Issues for ‘Global Migration’

1.

Population Change

Managing migration, both immigration and emigration, has become one of the central issues within both regional and national policies in countries experiencing population decline. In this context the diffference between internal and international migration is blurring as world economy is becoming an economy of regions with strong and weak regions. Flows of migrants are more towards strong regions is now visible both within and between countries.19 Many regions in the north-western Europe are experiencing a decrease in the population. Germany for example even though has a positive net migration is still experiencing a decrease as it sees negative natural population change (the diffference between the number of live births and the number of deaths is a given period of time). Between 2005–2030 regions such as Severozapaden and Severentsentralen in Bulgaria, and Dessau, Chemnitz and Halle in Germany, form the top fijive regions with the most severe expected

16

International Labour Organisation, Asian Decent Work Decade Resource Kit: Protecting Migrant Workers (ILO 2011) accessed 25 August 2014.

17

Sudhershan Rao Sarde, ‘Migration in India: Trade Union Perspective in the Context of Neo-liberal Globalisation’ (International Metalworkers Federation, 2008) accessed 25 August 2014.

18

Philip Martin, ‘Migration in the Asia-Pacific Region: Trends, Factors and Impacts’ (2009) UNDP Human Development Research Paper 2009/32 accessed 25 August 2014.

19

Personal communication with Leo van Wissen (23 March 2011).

Global Migration: Current Trends and Issues

population decline, with decline fijigures from 24 to 34 percent.20 On the other hand many countries, such as Czech Republic, Italy, Greece, Slovenia and Slovakia, registered population growth in 2005 only because of migration. Revised population forecasts for Europe show that in 2050 the three main countries benefijitting from migration will be Germany, Italy and Spain and relative to current population size Luxembourg will receive the maximum immigrants, six per thousand which is way above the EEA average of 3.4 per thousand.21 With the ageing of the population there will be greater demand for care givers and health workers in these countries. Replacement migration though presented as panache for population decline is not equally accepted across the Global North as national governments are still guarded in opening their labour markets to non-western immigrants. Beaujot cautions that relying too much on immigration to supplement the declining labour force can lead to lower investment in education and employment of minorities not represented in the labour force.22 Internal migration within countries across strong and weak regions is also posing to be a problem. Due to low employment options younger generation is leaving the countryside to move to more urban regions. This is leading to population decline and loss of essential services in these regions. These changes are evident both in developed and developing countries. In China,23 the rural to urban migration of young men and women has led to villages with very old and very young inhabitants often missing a generation in between. With the economic crisis even immigrant friendly countries are taking stringent measures to control inflow of labour migrants. The United Kingdom has plans to enforce an immigration cap of 21.700 skilled workers from outside the European Economic Area who are allowed to enter the United Kingdom.24 Saudi Arabia has also announced plans not to renew

20

Eurostat statistics from 2009, cited in Tialda Haartsen and Viktor Venhorst, ‘Planning for Decline: Anticipating on Population Decline in The Netherlands’ (2010) 101(2) Tijdschrift voor Economische en Sociale Geografie 218.

21

Juha Alho et al, ‘New Forecast: Population Decline Postponed in Europe’ (2006) 23 Statistical Journal of the UNECE 1.

22

Roderic Beaujot, ‘Effect of Immigration on the Canadian Population: Replacement Migration?’ (2003) University of Western Ontario Population Studies Centre Discussion Paper 03/03.

23

Xiang Biao, ‘How Far Are the Left-behind Left Behind? A Preliminary Study in Rural China’ (2007) 13(3) Population, Place and Space 179.

24

‘UK Government Agrees on Skilled Migration Cap’ BBC (London, 23 November 2010) accessed 25 August 2014.

19

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Chapter 2 – Ajay Bailey

residency permits of workers who have stayed more than six years.25 This move is seen as way of providing work for locals in a country where the majority of the labour force is made of immigrants. 2.

High-Skilled Mobility and Repeated Mobilities

Migration is no more a once in a life time activity especially for the high skilled. The improvements in education and scale of innovation in the Global South have resulted in higher stocks of skilled workers. Even the discourse that surrounds the migration of the high-skilled has seen a change, earlier there was a uproar on ‘Brain Drain’ from the Global South however in the last decade migration scholars start to awaken to the realization that the high-skilled do not move to permanently settle but move back and forth between destination and origin countries. Migration scholars term this type of movement as circular migration.26 Population ageing and scarcity of the skilled human resources has created a global competition for talent both for attracting and retaining talent in these countries. The high skilled are increasingly more mobile and have diffferent motives prime being higher return for human capital and the experience in working in diffferent sectors which further enhances the value of their human capital. In the EU, despite an unemployment rate of almost ten percent, leaving more than 23 million people jobless, skills shortages are widely reported. To sustain economic recovery and maintain Europe’s welfare systems, there is an urgent need to address mismatches between skills supply and labour market demand. At the EU level a common visa procedure (the Blue Card) was mooted to be in line with the successful Green Card system in the USA. Even though in 2009 the Blue Card was adopted there has been very less progress in the uniform application of the program as the defijinition of who is a highly skilled migrant and the areas where they can be employed has varied widely between the EU member states. After many deliberations the states agreed to have the applicant’s salary as the marker for inclusion as skilled migrant. The initial agreement was that the applicant salary has to 1.5 times of the average salary of the member state but this was difffijicult to implement as the average salaries varied in many of the member states and some support personnel 25

‘Saudi to Limit Work Permits to Help Locals-paper’ Reuters (London, 30 May 2011) 25 August 2014.

26

Steven Vertovec, ‘Circular Migration: The Way Forward in Global Policy?’ (2007) Oxford International Migration Institute Working Paper 4 accessed 25 August 2014.

Global Migration: Current Trends and Issues

such as health care workers could not be included in this program. Thus the salary was further reduced to 1.2 times the average gross salary.27 Due to the nature of mobilities between sending and receiving countries there are many spin-offfs of high skilled migration. One that skilled migrants help the countries tap into the vast human capital resources available in their home country thus creating more flows of specialized migrants and second the returning professionals bring new experiences and technical know-how to their home countries. The tide is also reversing in countries such as India as they wake up to the new reality of ‘talent shortage’ and the need of more experienced professionals. Indians companies annually participate in the ‘India Calling’ job fair in the USA to attract non-resident Indians back to India to take up higher level positions.28 The coming decades will see major reconfijigurations of the mobility of skilled professionals. Thus far it has been largely the skilled labour from developing countries that has been largely mobile but soon skilled workers in the developed world will also have to move to get better returns for their human capital. One of the neglected streams of migration is that of student migration between diffferent regions of the world. The UNESCO has documented in its Global Education Digest 2009 the growth in international student mobility.29 The number of students abroad has grown from 0.8 million in 1975 to 2.8 million in 2007. China, India and the Republic of Korea are the top three sending countries and USA, UK and France hosted most of the international students. The traditional moves have been either through colonial linkages or through linkages in IT and communication. With a strong emergence of regional hubs in Asia and the higher study costs in most European countries we could see shift in the flow of students to more regional hubs such as Singapore, China and Malaysia. The transition of migrants from students to high skilled labour during these mobilities is still an under researched theme in migration literature.

27

Elizabeth Collett, ‘Blue Cards and the Global Battle for Talent’ (European Policy Centre, 28 May 2009) accessed 25 August 2014; ‘An EU “Blue Card” for High-skilled Immigrants?’ (EurActiv, 22 April 2008) accessed 25 August 2014.

28

‘India Calling: US Job Fair 2010’ Hindustan Times (New Delhi, 2 August 2010) accessed 25 August 2014.

29

UNESCO Institute for Statistics, Global Education Digest 2009: Comparing Education Statistics Across the World (UNESCO-UIS 2009).

21

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Chapter 2 – Ajay Bailey

3.

Irregular migration

It is difffijicult to estimate the number of irregular migrants as data are difffijicult to gather from this largely hidden population. The rough estimates that do exist put the number between 10-15 percent in the OECD countries.30 The other factor that contributes to this difffijiculty is that the diffferences between regular and irregular migration are sometimes blurred. What is important to defijine here are the two terms irregular entry and irregular stay. In the fijirst category migrants enter illegally and then try to obtain residency through fijinding work, marriage or regularization programs of the country they reside in. In the second category migrants enter a country through legal means and overstay their visas or engage in activities that are not suited to their visa requirements, this puts them in the irregular category. The Migrant Rights Network (MRN) reports that the major reasons for irregular migration are: seeking safety, work, and family reunifijication or fleeing war or natural disasters.31 MRN further points out that in the United Kingdom, when irregular migrants are caught to be deported some cannot be sent back due to lack of documents, unsafe conditions in the countries of origin and in some case refusal of the country of origin to accept them back. The Clandestino Project estimates 1.9 to 3.8 million migrants with irregular situation in the European Union in 2008.32 This novel project also uses a diffferent approach where it examines the flows of irregular migration from a demographic, geographic and a status perspective. The latter two are more prominent. The geographic flows are studies using the data on how many people are apprehended at borders and check points. The status flows are the largest flows where individuals move from a regular to an irregular status. Many countries in the EU are now regularizing such migrants or in some cases deporting them back to their country of origin. The criminality of irregular migration is evident in the terms ‘human traffijicking’ and ‘human smuggling’. These words though used interchangeably are very diffferent and have various consequences to the people involved. Trafffijicking is the exploitation of a victim through coercion and violation of human rights. Whereas smuggling is the organized illegal international border crossing carried in return for 30

Timothy J Hatton, Jeffrey G Williamson, ‘What Fundamentals Drive World Migration?’ (2002) NBER Working Paper 9159 accessed 25 August 2014.

31

MigrationWork and Migrants Rights Network, Irregular Migration: the Urgent Need for a New Approach (MRN 2009).

32

See the Clandestino website at accessed 25 August 2014.

Global Migration: Current Trends and Issues

a fee by the migrant. The International Labour Organization estimates nearly 2.45 million people worldwide are in forced labour as a result of trafffijicking. The AsiaPacifijic region tops the list with the largest number of people in forced labour due to trafffijicking.33 Van Liempt notes that there cannot be strict division between human smuggling and human trafffijicking.34 She further says that there is discourse that is created where migrants who are smuggled in are seen as criminals ‘who knew what they were doing’. The stories from her research highlight the human right violations that the women faced even though they were smuggled into a country. On a macro level one has to also contend which the fact that the more stringent immigration rules become, the larger the market that is created for human smuggling. 4.

New Directions for Migration Research

Conceptualizing mobility, Sheller and Urry use the metaphor of travel and says that people dwell in various mobilities which are diverse yet intersecting, creating a ‘networked’ pattern of economic and social life.35 Thus mechanisms that measure migration and mobility also need to change to capture this dynamic nature of movement between cities, regions and nations. Traditionally in countries missing a good population registration system census and population surveys have measured the movement of people between a period of time such as fijive or ten years. These time frames may lead to a loss of information which could further lead to either overrepresentation or underrepresentation of the migration in the communities. On the other hand population registration systems have their own weak points as they depend on the citizen to supply the information. Poot et al. encourage researchers to explore the possibilities of analysing data which results from digital histories that we generate every day.36 These could be the use of mobiles, credit cards, travel cards and navigation systems which generate large amount of information which can be 33

International Labour Organization, A Global Alliance Against Forced Labour: Global Report under the Follow-up to the ILO Declaration on Fundamental Principles and Rights at Work (ILO 2005).

34

Ilse van Liempt, ‘Different Geographies and Experiences of “Assisted” Types of Migration: A Gendered Critique on the Distinction between Trafficking and Smuggling’ (2011) 18(2) Gender, Place and Culture 179.

35

Mimi Sheller and John Urry, ‘The New Mobilities Paradigm’ (2006) 38(2) Environment and Planning 207-226

36

Jacques Poot, Brigitte Waldorf and Leo van Wissen (eds), Migration and Human Capital (Edward Elgar 2008).

23

24

Chapter 2 – Ajay Bailey

further used to model mobility patterns. In addition to mobility we also can have a deeper insight on how diffferent domains of work, family and travel can be analysed to reveal new patterns of living. Such knowledge can help local governments in providing better services to mobile individuals and families. A further conceptualisation is to examine migration and mobility through the life course. The life course approach focuses on life events and transitions of individuals and the ways in which these events defijine their life trajectories, also referred to as life careers or paths.37 As people move through diffferent life events they may also move to spatially diffferent points either as primary movers or tied movers. The latter being more evident in family reunifijication visa applied for spouses and children left behind in home countries. The international mobility itself starts at an early stage where young adults migrate to Western countries to seek education. This starts the chain of movements where between life course events such marriage, parenthood, divorce, retirement and death lead to linked migration of fellow household members. Thus there exists a need to broaden the scope of measuring and understanding mobility and migration from an individual to a family or a household perspective. Linked lives -one of core dimensions of the life course approach- recognizes that life trajectories of individuals are socially embedded and closely linked to the transitions of the signifijicant others.38 The linked mobility or immobility of household members then becomes the motives for transnational linkages among people. In most of the family migration research it is common to assume that the migration of spouses or children is from the same region as that of the main householder. This is changing in many South-East Asian countries where due to low fertility and an ageing population there are very few women left in the marriage market. Douglass documents families are increasingly becoming more international where a spouse is from a diffferent nation or a child is adopted or born to surrogate mother in a diffferent country.39 These new dimensions he captures in his theory on ‘Global Householding’ which includes: marriage, child bearing and rearing, adoption, hiring foreign domestic helpers and care giving of elderly. These dimensions are the new 37

Glen H Elder, ‘Age Differentiation and Life Course’ (1975) 1 Annual Review of Sociology 165; Glen H Elder, ‘Perspectives on the Life Course’ in Glen H. Elder (ed), Life Course Dynamics: Trajectories and Transitions, 1968-1980 (Cornell UP 1985) 23-49.

38

Dale Dannefer, ‘Toward a Global Geography of the Life Course: Challenges of Late Modernity to the Life Course Perspective’ in Jeylan T Mortimer and Michael J Shanahan, Handbook of the Life Course (Springer 2003).

39

Mike Douglass, ‘The Globalization of Householding and Social Reproduction in Pacific Asia’ (2007) 55(2) Philippine Studies 157.

Global Migration: Current Trends and Issues

motives for transnational movements in forming a household where intergenerational care is managed with diverse nationalities and identities. Thus global migration as described in the chapter has many layers which are increasingly interlinked. Studying population movements is not only to know as to why people are leaving but also what happens to people in these regions who stay. Mobility and migration have become necessities in the globalised workplace where sense of identities and belonging keep shifting due to transitional nature of people existence in these spaces. In the future to further prosper and sustain, municipalities, regions, cities and countries will strive to attract, keep and nurture migrants.

25

3

Migration for Employment Ryszard Cholewinski*

“Whereas conditions of labour exist involving such injustice, hardship and privation to large numbers of persons as to produce unrest so great that the peace and harmony of the world are imperilled; and an improvement in these conditions is urgently required; as, for example [inter alia] protection of the interests of workers when employed in countries other than their own.”1

I.

Introduction

Regulation of international migration for employment today remains largely a matter for States which retain under international law the sovereign prerogative to de*

Ryszard Cholewinski is Migration Policy Specialist at the International Labour Office (ILO), Geneva. The ideas and observations in this chapter constitute the personal views of the author and not necessarily reflect or engage those of the ILO. This paper draws on a number of publications by the author, including: Ryszard Cholewinski, ‘Human Rights of Migrants: The Dawn of a New Era?’ (2010) 24(3/4) GILJ 585; Ryszard Cholewinski, ‘Labour Migration Management and the Rights of Migrant Workers” in Alice Edwards and Carla Ferstman (eds), Human Security and Non-Citizens: Law, Policy and International Affairs (CUP 2010); Ryszard Cholewinski, ‘The Human and Labor Rights of Migrants: Visions of Equality’ (2008) 22(2) GILJ 177; Ryszard Cholewinski, ‘International Labour Law and the Protection of Migrant Workers: Revitalizing the Agenda in the Era of Globalization’ in John DR Craig and S Michael Lynk (eds), Globalization and the Future of Labour Law (CUP 2006).

1

International Labour Organization Constitution 1919 (as amended) accessed 25 August 2014 (emphasis added).

Sir Richard Plender (ed.), Issues in International Migration Law Copyright 2015 Koninklijke Brill NV. Printed in The Netherlands. ISBN 978-90-04-20851-3 pp. 27-80

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Chapter 3 – Ryszard Cholewinski

termine which non-nationals may enter and take up employment in their territory. There is currently no global system for regulating international labour migration, despite the impressive estimates of the World Bank that global real income gains would increase by USD 356 billion or 0.6 percent by 2025 if there was a three percent increase in labour migration to higher income countries.2 Moreover, the demographic projections for the next forty years suggest that international labour migration will increasingly become an important factor in sustaining the productivity of national economies.3 Unlike free movement of goods and capital, however, the movement of labour across international borders involves human beings with profound social implications for countries of origin and destination. While international trade law regulates to a certain degree the movement of persons in the context of service provision, for the time being this system is confijined to the temporary movement of a very limited category of persons, such as managers, business visitors and specialists, and is hardly aligned with national immigration regulations. 4 The human dimension of international migration for employment is captured by the above-cited paragraph from the Preamble to the ILO Constitution, which considers exploitative labour conditions as a threat to world peace. The 1944 Declaration of Philadelphia, annexed to the ILO Constitution, also reafffijirms the fundamental

2

World Bank, Global Economic Prospects 2006: Economic Implications of Remittances and Migration (World Bank 2006) 31.

3

International Organization for Migration, World Migration 2008: Managing Labour Mobility in the Evolving Economy (IOM 2008) 36–38 citing UN Department of Economic and Social Affairs, Population Division, World Population Prospects: The 2006 Revision, Vol. I, Comprehensive Tables (New York, 2007)

4

This chapter does not discuss worker mobility in the context of the temporary movement of natural persons across international borders under Mode 4 of the General Agreement on Trade in Services (GATS), which was incorporated into the World Trade Organization (WTO) in January 1995. For a recent analysis of services provision in the context of international migration for employment, see Philip L Martin, ‘“Migrant Workers” vs. “International Services Providers”: Labour Markets and the Liberalization of Trade in Services’ in Christiane Kuptsch, (ed), The Internationalization of Labour Markets (International Institute of Labour Studies 2010) 197–225. Martin observes that while ‘there are no updated Mode 4 estimates (...) most experts agree that Mode 4 accounts for less than three percent of global trade in services’ (at 198). See also Joel P Trachtman, The International Law of Economic Migration: Toward the Fourth Freedom (Upjohn Institute for Employment Research 2009).

Migration for Employment

principle that ‘labour is not a commodity’.5 In this context, therefore, ILO’s founding documents recognize that ‘the protection of the interests of workers when employed in countries other than the own’ is an imperative part of the response to international labour migration. This chapter, therefore, fijirst considers the constitutional mandate of the ILO to protect migrant workers in advancing social justice, which today is articulated in the ILO’s Decent Work Agenda.6 This part of the chapter focuses on ILO’s work in drawing up international minimum labour standards, including the specifijic conventions and recommendations aimed at safeguarding the rights of migrant workers. The subsequent ILO Multilateral Framework on Labour Migration containing non-binding principles and guidelines for a rights-based approach to labour migration is also discussed as an important ‘soft law’ instrument and policy tool. The next section considers the development of standards relating to labour migration in the broader United Nations context, most notably through the adoption on 18 December 1990 of a core human rights instrument devoted to the protection of migrant workers and their families – the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. These two sections illustrate that despite the shortcomings in terms of ratifijication and implementation of the specifijic instruments protecting migrant workers and their families and while there are no global rules regulating their admission, an international rule of law framework for the protection of their rights does exist and, arguably, is probably even more timely today than ever before in the present wave of globalization and increasing precarious employment. The next section in the chapter discusses regulation of labour migration at the regional level, which is evident in the formulation and implementation of free movement of worker regimes within regional integration regimes as well as common poli5

ILO Declaration of Philadelphia (Declaration Concerning the Aims and Purposes of the International Labour Organization) (26th Conference Session Philadelphia10 May 1944) para I(a).

6

The ILO’s Decent Work Agenda is expressed in four equally important strategic objectives: (i) promoting employment; (ii) developing and enhancing measures of social protection – social and labour protection – which are sustainable and adapted to national circumstances: (iii) promoting social dialogue and tripartism; and (iv) respecting, promoting and realizing the fundamental principles and rights at work. Gender equality and non-discrimination are considered to be a cross-cutting issue in these objectives. See ILO Declaration on Social Justice for a Fair Globalization (97th Conference Session Geneva 10 June 2008) ss I(a) and I(b).

29

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Chapter 3 – Ryszard Cholewinski

cies to regulate the conditions of admission and residence of non-nationals from outside these regions with regard to their employment. The European Union (EU) is often viewed as the most advanced regime in this respect, but signifijicant developments have also taken place in other regions characterized by more nascent regional integration arrangements, complemented or supported in some instances by existing human rights frameworks. While space to address these issues extensively is rather limited, this chapter endeavours to provide an overview of the legal developments taking place at the regional level. Finally, the chapter considers the role of ‘soft law’ or non-binding standards concerning international migration for employment, of which the earlier mentioned ILO Multilateral Framework on Labour Migration is one signifijicant manifestation. The admission of foreign nationals, including for the specifijic purpose of employment, remains close to the heart of sovereignty in many countries, with the result that governments increasingly prefer to discuss this subject in various intergovernmental forums on migration (including migration and development) outside the UN and ILO systems, which in the latter instance is particularly problematic because employer and worker organizations are often not included. These discussions are taking place at both global and regional levels with a view to exchanging information and so-called ‘best practices’, with little or no intention of agreeing any normative content. Despite this trend, there have nonetheless been a number of signifijicant developments in the formulation of ‘soft law’, particularly in regional contexts. II.

Migration for Employment and Globalization

The Population Division of the United Nations Department of Economic and Social Afffairs (UN DESA) estimates that there were 214 million persons living outside their countries of birth or citizenship in 2010, with women comprising nearly one half (49 percent) of this population.7 Not all migrants are captured in this global estimate because only those non-nationals who have been in the destination country for one year or more are counted, thus excluding some categories of temporary migrants such as seasonal workers. Nonetheless, a great part of international migration today is bound up with the world of work. ILO estimates that some 105 million of the total 214 million international migrants in 2010 were economically active, engaged in the

7

See UNDESA, ‘Trends in International Migrant Stock: The 2008 Revision’ (July 1999) UN Doc OP/DB/MIG/Rev.2008 and the accompanying CD-Rom at accessed 25 August 2014.

Migration for Employment

world of work.8 This means most working-age adults in the global migrant population – including refugees – taking into account that the migrant population also includes children and aged dependents. In some European countries, for example, as at 2008, the foreign-born proportion of the labour force was ten percent or more, more than 12 percent in the United Kingdom, over 16 percent in Austria, 18 percent in Spain, 20 percent in Ireland and 46 percent in Luxembourg.9 International migration for employment is not only driven by a demand for labour in the context of demographic changes such as declining and aging populations and workforces in many destination countries, but is also an integral part of the process of globalization. Indeed, this is recognised in the 2008 ILO Declaration on Social Justice for a Fair Globalisation, which observes that the present context of globalization is profoundly reshaping the world of work: Considering that the present context of globalization, characterized by the difffusion of new technologies, the flow of ideas, the exchange of goods and services, the increase in capital and fijinancial flows, the internationalization of business and business processes and dialogue as well as the movement of persons, especially working women and men, is reshaping the world of work in profound ways.10

Commenting on the way globalisation is changing employment today and the place of international labour migration in view of these changes in both countries of origin and destination, Patrick Taran writes: In the economic realm, migrant labour has become a key feature in meeting economic, labour market and productivity challenges in a globalized economy. Migration today serves as an instrument to adjust the skills, age and sectoral composition of national and regional labour markets. Migration provides responses to fast-changing needs for

8

International Labour Office, International Labour Migration: A Rights-based Approach (ILO 2010). See also World Migration 2008 (n 3), which observes that employment is at the heart of most forms of mobility today.

9

Organisation for Economic Co-operation and Development, International Migration Outlook: SOPEMI 2010 (OECD 2010) 352. The foreign-born population in a country include ‘all persons who have that country as country of usual residence and whose place of birth is located in another country’. See UNDESA, ‘Recommendations on Statistics of International Migration: Revision 1’ (1998) UN Doc M/58/Rev.1, para 189.

10

ILO Declaration on Social Justice for a Fair Globalization (n 6) (emphasis added).

31

32

Chapter 3 – Ryszard Cholewinski skills and personnel resulting from technological advances, changes in market conditions and industrial transformations. (...) Accelerated trade is replacing or undercutting domestic industrial and agricultural production [in many developing countries] with cheap imports, but at the expense of many jobs in these sectors. (...) In sum, migration pressures on the ‘supply side’ are increasing as possibilities for employment and economic survival at home disappear. On the other side, demand for migrant labour is anything but declining. Rather, demographic trends and ageing work forces in many industrialized countries mean that immigration is becoming an increasingly important option to address changing labour force composition and needs and future economic and social security performance. Growing competition for highly educated specialists in expanding service sectors has resulted in a signifijicant rise in skilled labour migration. Simultaneously, the global efffort to fijill shunned ‘3-D jobs’ and acquire economic competitiveness through high productivity produces a continuous demand for cheap and low-skilled migrant labour in many sectors of the world economy.11

The existence of these globalising forces means that international migration for employment is likely to remain high on national, regional and international political agendas, even in the wake of an economic crisis, particularly as the demographic situation in many developed destination countries will require additions to the labour force including through migration. Consequently, the legal challenges are arguably threefold: (i) how best to regulate migration for employment in today’s testing economic climate, if indeed regulation, at least in part, is a feasible goal; (ii) to mitigate the inherent vulnerabilities of migrant workers and their families in the migration process; and (iii) to ensure their equitable and dignifijied treatment. III.

The Role of the International Labour Organization

As noted in the Introduction, the ILO is constitutionally mandated to protect the ‘interests of workers when employed in countries other than their own’. In addition

11

Patrick A Taran, ‘Clashing Worlds: Imperative for a Rights-Based Approach to Labour Migration in the Age of Globalization’ in Vincent Chetail (ed), Globalization, Migration and Human Rights: International Law Under Review, vol 2 (Bruylant 2007) 405, 406-407.

Migration for Employment

to a social justice rationale for this protection,12 the need for international rules in this area was also premised on a utilitarian objective, namely to counteract any economic and competitive disadvantages that might result if governments were left to address these problems alone.13 This justifijication continues to resonate today in the light of the economic, employment, social and development challenges raised by globalization, and the 2008 global fijinancial and economic crisis. 1.

ILO Fundamental Rights Conventions

While the ILO has adopted specifijic instruments aimed at the protection of migrant workers, all International Labour Standards, apply to all workers irrespective of their nationality or immigration status, unless otherwise stated.14 Moreover, the fundamental rights conventions of the ILO have special importance,15 as recognized 12

In this regard, see ILO Declaration of Philadelphia (n 5) para II(a): “[A]ll human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity.”

13

Virginia A Leary, International Labour Conventions and National Law: The Effectiveness of the Automatic Incorporation of Treaties in National Legal Systems (Martinus Nijhoff 1982) 6.

14

In this regard, see the ILO Convention C111: Discrimination Convention (Convention concerning Discrimination in Respect of Employment and Occupation) (42th Conference Session Geneva 25 June 1958), which does not delineate nationality as a prohibited ground of discrimination (Art 1(1)(a)), although the subsequent provision (Art 1(1)(b)) provides expressly that additional grounds of discrimination may be determined by the ILO Member State concerned in consultation with the social partners and other appropriate bodies. See also Henrik K Nielsen, ‘The Concept of Discrimination in ILO V111’ (1994) 43 ICLQ 827, 840. Nationality discrimination, however, is often bound up with other forms of discrimination. In this regard, the recent International Labour Organisation, Equality at Work: The Continuing Challenge – Global Report under the follow-up to the ILO Declaration on Fundamental Principles and Rights at Work (ILO 2011) 34: “Discrimination based on nationality is one aspect of the multiple discrimination often suffered by migrant workers. It is indeed difficult in many circumstances to determine whether discriminatory treatment faced by a migrant worker is exclusively based on his or her nationality or perceived nationality status, on racial, ethnic, religious or other visible grounds, or a combination of these factors.”

15

ILO Convention C29: The Forced Labour Convention (Convention concerning Forced or Compulsory Labour) (14th Conference Session Geneva 18 June 1930); ILO Convention C105:

33

34

Chapter 3 – Ryszard Cholewinski

by the ILO Declaration on Fundamental Principles and Rights at Work adopted by the International Labour Conference in June 1998,16 which declares that all ILO Members, including those that have not ratifijied the instruments in question, have an obligation by virtue of their membership in the Organisation ‘to respect, to promote and to realize in good faith and in accordance with the Constitution, the principles concerning the fundamental rights which are the subject of those Conventions’.17 Abolition of Forced Labour Convention (Convention concerning Forced or Compulsory Labour) (40th Conference Session Geneva 25 June 1957); ILO Convention C138: Minimum Age Convention (Convention concerning Minimum Age for Admission to Employment) (58th Conference Session Geneva 26 June 1973); ILO Convention C182: Worst Forms of Child Labour Convention (Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour) (87th Conference Session Geneva 17 June 1999); ILO Convention C87: Freedom of Association and Protection of the Right to Organise Convention (Convention concerning Freedom of Association and Protection of the Right to Organise)(31st Conference Session San Francisco 9 July 1948); ILO Convention C98: Right to Organise and Collective Bargaining Convention (Convention concerning the Application of the Principles of the Right to Organise and to Bargain Collectively)(32nd Conference Session Geneva 1 July 1949); ILO Convention C100: Equal Remuneration Convention (Convention concerning Equal Remuneration for Men and Women Workers for Work of Equal Value)(34th Conference Session Geneva 29 June 1951); ILO Convention C111: Discrimination Convention (Convention concerning Discrimination in Respect of Employment and Occupation) (42nd Conference Session Geneva 25 June 1958). The texts of these as well as all other ILO instruments are available from the NORMLEX Database of International Labour Standards at accessed 25 August 20142. 16

ILO Declaration on Fundamental Principles and Rights at Work (86th Conference Session Geneva 18 June 1998).

17

ibid para 2. The Declaration contains a ‘promotional follow-up’ relating to the four categories of fundamental principles and rights at work covered by the eight core conventions enabling the ILO Governing Body to request, on an annual basis, reports from those ILO Members which have not yet ratified these conventions to supply information on the efforts undertaken to give effect to the fundamental rights and freedoms (ibid annex, part I). Moreover, the Declaration also calls for the drawing up of a Global Report ‘to provide a dynamic global picture relating to the four categories of fundamental principles and rights at work’ (ibid annex, part III). The ILO report Equality at Work (n 14) is the most recent such report. For the other reports prepared to date, see accessed 25 August 2014.

Migration for Employment

While the instruments relating to migrant workers (discussed in Section III below) are not considered as fundamental ILO conventions, the Declaration underscores the need to devote ‘special attention to the problems of persons with special social needs, particularly the unemployed and migrant workers’.18 2.

Specific Instruments Protecting Migrant Workers

The two legally binding ILO instruments specifijically protecting migrant workers are the ILO Migration for Employment Convention and the ILO Migrant Workers Convention, which are both supported by non-binding Recommendations.19 These conventions are concerned not only with the protection of migrant workers while in the country of employment but also apply to the whole labour migration process from departure to return. Moreover, they contain important provisions on interState cooperation and the role of social partners in the governance of international migration for employment. One important objective of the ILO Migration for Employment Convention is to outline the conditions applying to the orderly recruitment of migrant workers from countries with labour surpluses to countries with labour shortages, which is reflected in a number of its provisions as well as the Annexes.20 While the State-organised context of fulfijilling this objective may no longer be as applicable to many instances 18

ibid recital 4.

19

ILO Convention C97: Migration for Employment Convention (Convention concerning Migration for Employment) (32nd Conference Session Geneva 1 July 1949); ILO Convention C143: Migrant Workers Convention (Convention concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers) (60th Conference Session Geneva 24 June 1975); ILO Recommendation R086: Migration for Employment Recommendation (Recommendation concerning Migration for Employment) (32nd Conference Session Geneva 1 July 1949); ILO Recommendation R100: Protection of Migrant Workers Recommendation (Recommendation concerning the Protection of Migrant Workers in Underdeveloped Countries and Territories Recommendation) (38th Conference Session Geneva 22 June 1955); ILO Recommendation R151: Migrant Workers Recommendation (Recommendation concerning Migrant Workers) (60th Conference Session Geneva 24 June 1975).

20

See in particular the provisions on information in Arts 2 and 3 Migration for Employment Convention, including the State obligation to take all appropriate steps against misleading propaganda, and the obligation in Art 4 to take measures ‘to facilitate the departure, journey and reception of migrants for employment’.

35

36

Chapter 3 – Ryszard Cholewinski

of labour migration, which is increasingly spontaneous and frequently organized by private intermediaries,21 a number of States nonetheless seek to retain an element of control by actively organizing the flow of migrant workers between them. This is evident in the proliferation of bilateral labour agreements between countries of origin and destination at the beginning of the 1990s following the opening up of borders in Central and Eastern Europe.22 This development ensures the continued practical relevance of the standards set out in the ILO Migration for Employment Convention and the accompanying ILO Migration for Employment Recommendation, which in its Annex contains a Model Agreement on Temporary and Permanent Migration for Employment that has been used by a number of governments as a blueprint for concluding their own bilateral labour migration agreements. Another important objective of the ILO Migration for Employment Convention is to secure equal treatment for lawfully resident migrants with nationals in respect of working conditions; trade union membership and enjoyment of the benefijits of collective bargaining; accommodation; social security; employment taxes; and legal proceedings relating to matters outlined in the instrument (Article 6). The ILO Migrant Workers Convention is broader in personal and material scope. It was discussed in the period following the stop on immigration to Western Europe after the oil crisis in the early 1970s. This was a time when increasing irregular migration together with particular migration abuses, such as the smuggling of migrants and trafffijicking of persons –including for the purpose of exploitative employment or forced labour– were attracting the attention of the international community,23 as indeed they continue to do so today. The ILO Migrant Workers Convention, therefore, devotes its fijirst part to the phenomenon of irregular migration for employment and the inter-State cooperation measures considered necessary to prevent and eliminate the exploitation to which it gives rise. In keeping with the ILO’s ethical prerogative of social justice and protecting all persons in their working environment, Article 1 of the ILO Migrant Workers Convention imposes an obligation on States parties 21

International Labour Organisation, General Survey on the Reports on the Migration for Employment Convention (revised) (no. 97), and Recommendation (revised) (no. 86), 1949, and the Migrant Workers (Supplementary provisions) Convention (no. 143), and Recommendation (no. 151), 1975: Report of the Committee of Experts on the Application of Conventions and Recommendations (Articles 19, 22 and 35 of the Constitution) (ILO 1999) para 657.

22

Organisation for Economic Co-operation and Development, Migration for Employment: Bilateral Agreements at a Crossroads (OECD 2004) 12.

23

Roger Böhning, A Brief Account of the ILO and Policies on International Migration (ILO Century Project, ILO 2008).

Migration for Employment

‘to respect the basic human rights of all migrant workers’, thus confijirming the applicability of this instrument to migrant workers in irregular status. While the ILO Committee of Experts on the Application of Conventions and Recommendations (hereinafter ILO Committee of Experts) initially viewed this provision as applying essentially to traditional civil and political rights,24 such a limitation is not reiterated in the Committee’s subsequent assessment of the migrant workers’ instruments conducted in 1999.25 Moreover, Article 9(1) ILO Migrant Workers Convention explicitly underscores that migrant workers in irregular status are entitled to equal treatment in respect of ‘rights arising out of past employment as regards remuneration, social security and other benefijits’. On the other hand, Part II of the ILO Migrant Workers Convention covers only lawfully resident migrant workers and their families with a view to promotion of their equality of opportunity and treatment and thus integration in host societies. Article 10 obliges States parties to declare and pursue a national policy designed to guarantee and promote equality of opportunity and treatment of migrant workers in a number of fijields, including those that go beyond the strict confijines of their immediate working environment such as cultural rights. A particularly liberal provision in the ILO Migrant Workers Convention is Article 14(a), which provides for the right to geographic mobility and free choice of employment stipulating that States parties may only restrict free choice of employment for lawfully resident migrant workers to a maximum of two years or until after completion of the fijirst employment contract if this is shorter in duration. The more progressive nature of some articles in the ILO Migrant Workers Convention, in contrast to more restrictive provisions in the complementary UN International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families

24

International Labour Organisation, Report of the Committee of Experts on the Application of Conventions and Recommendations: General Survey of the Reports relating to Conventions Nos. 97 and 143 and Recommendations Nos. 86 and 151 concerning Migrant Workers (International Labour Office 2006) [256]–[257].

25

International Labour Organisation (n 21) para 96. This wider interpretation is particularly important given the interface between International Labour Standards and human rights law. Indeed, it would be plausible to argue that most of ILO standard-setting can be effectively articulated as the right of everyone to just and favourable conditions of work recognized in UDHR Art 23; International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR) Art 7.

37

38

Chapter 3 – Ryszard Cholewinski

(ICRMW),26 which is discussed in some detail in Section IV below, may in part be explained by the unique tripartite structure of the ILO where worker and employer organizations participate actively in the adoption of international labour standards at the annual International Labour Conference and in the interim decision-making of the ILO’s executive organ, the Governing Body. It would seem however that this distinctive context concerning standard-setting has not always been utilized to its full potential to advance the protection of migrant workers. In the view of the late Virginia Leary, ‘the lack of interest of ILO constituents –governments, labour, and employer organizations– inhibited ILO work on migrant labour despite formal commitments to regulating such labour since its founding’.27 This point is reinforced when the status of ratifijication of the two ILO instruments protecting migrant workers is considered. In contrast to the eight ‘fundamental’ conventions of the ILO, formally accepting legally binding international principles for the protection of migrant workers plainly poses difffijiculties for some ILO Members. While forty-nine States have ratifijied the ILO Migration for Employment Convention, the ILO Migrant Workers Convention has to date only received twenty-three ratifijications,28 although since the year 2000, eight and six countries respectively have ratifijied them, including signifijicant countries of origin today such as Albania, Armenia, Kyrgyzstan, Philippines and Tajikistan. Clearly, some of the more progressive provisions identifijied above contrast starkly with the position in national law and practice in a number of countries, and thus constitute considerable legal obstacles to the acceptance of these Conventions.29 This overall relatively low 26

International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (adopted 18 December 1990, entered into force 1 July 2003) 2220 UNTS 3 (ICRMW). Not all provisions in the ILO Migrant Workers Convention (n 19), however, should necessarily be considered ‘liberal’. For example, in keeping with other international human rights instruments, the Migrant Workers Convention does not explicitly recognize a right to family reunification for migrant workers, only a State party discretion in Art 13(1) ‘to take all measures which fall within its competence and collaborate with other Members to facilitate the reunification of the families of all migrant workers legally residing in its territory’. Family members of migrant workers are defined in Art 13(2) as the spouse and dependent children, father and mother.

27

Virginia A Leary, ‘Labor Migration’ in T Alexander Aleinikoff and Vincent Chetail (eds), Migration and International Legal Norms (TMC Asser Press 2003) 232.

28

See the annexes for a list of ratifications of the Migration for Employment Convention and the Migrant Workers Convention.

29

International Labour Organisation (n 21) para 643.

Migration for Employment

rate of ratifijications may also be due in part to the inability of States parties to make reservations to particular provisions in ILO Conventions, even though it is possible to selectively ratify parts of ILO instruments, such as in the ILO Migrant Workers Convention.30 Nonetheless, it would be incorrect to conclude that the adoption of specifijic international labour standards relating to migrant workers has had little or no impact in practice. First, while relatively few States have ratifijied the applicable instruments; those States that have accepted them encompass a diverse range of countries in all parts of the world and, most importantly, include a good mix of origin and destination countries, which is still not the case with the ratifijication status of the ICRMW discussed in Sections IV and V below. Second, the content of the ILO Migration for Employment Convention and the ILO Migrant Workers Convention were the catalyst and model for the adoption of the ICRMW and many of these standards are reiterated in that instrument, although a number of them also represent today the highest level of protection affforded migrant workers at the international level given the defijiciencies of the ICRMW in certain key areas such as access to employment. Third, ILO standards have made an impact in broad terms on national law in ILO Member States and not merely in those countries that have formally accepted them as was underscored by the ILO Committee of Experts in its 1999 General Survey. However, the Committee also observed that specifijic points of divergence lie in key areas of the instruments, namely recruitment of migrant workers, rights affforded to migrant workers in irregular status and the obligation to adopt a national policy promoting equality of opportunity and treatment.31 These standards are also seen as influencing the development of regional norms in this area, not least the equal treatment provisions in European Union free movement law which are drawn from Article 6 ILO Migration for Employment Convention.32 With regard to ratifying States, which are required to report to the ILO supervisory system on the implementation of the ILO Migration for Employment Convention and the ILO Migrant Workers Convention, the Committee of Experts has requested States parties on several occasions to re-examine their national law and practice in the light of the principles in these instruments. For example, in its recent report to the June 2011 100th International Labour Conference, the Committee made an ob30

ILO Migrant Workers Convention (n 19) Art 16(1). Currently, only Albania, which ratified thr Migrant Workers Convention in September 2006, has declared that it excludes part II.

31 32

International Labour Organisation (n 21) paras 646–647. Kees Groenendijk, ‘Equal Treatment of Workers under EU Law and Remedies against Violations by Employers’ (2010) 1 FMW 16, 17.

39

40

Chapter 3 – Ryszard Cholewinski

servation to the French Government expressing concerns about the ‘major problems [that] continue to exist with respect to integration of the immigrant population in French society, including a climate of suspicion and negativity, as well as widespread discrimination against migrant workers, having an impact on their general living conditions as well as their educational and employment opportunities’.33 These questions brought into focus several provisions of the ILO Migration for Employment Convention including inter alia Article 6(1)(a)(iii) on equality of treatment between lawfully resident migrant workers and nationals in respect of accommodation. In this regard, the Committee requested the Government to provide information on ‘the measures taken, and the results achieved, to ensure that migrant workers lawfully in the country and their families accompanying them are not being treated less favourably than nationals with respect to housing, whether in law or in practice. Such measures could include further steps to improve the housing and living conditions of migrant workers as well as measures to reduce their de facto segregation with respect to housing’.34 The Committee has also made important observations and direct requests35 to ILO Members regarding the right of migrant workers to retain their lawful status in the country on loss of their employment;36 the situation of migrant workers who have not been able to regularize their status in respect of rights arising out of past employ-

33

International Labour Organisation, Report of the Committee of Experts on the Application of Conventions and Recommendations: General Report and Observations Concerning Particular Countries (International Labour Office 2011) 757.

34

ibid.

35

Observations are the Committee’s comments on fundamental questions raised by the application of a particular Convention by a State, while direct requests concern more technical questions or requests for additional information. See International Labour Office, Rules of the Game: A Brief Introduction to International Labour Standards (ILO 2009) 80.

36

Committee of Experts on the Application of Conventions and Recommendations, 97th Session, 2007 (direct request to Serbia) with reference to Article 8(1) of Convention No. 143, (n 19), , accessed on 25 August 2014. Art 8(1) stipulates: “On condition that he [she] has resided legally in the territory for the purpose of employment, the migrant worker shall not be regarded as in an illegal or irregular situation by the mere fact of the loss of his [her] employment, which shall not in itself imply the withdrawal of his [her] authorisation or residence or, as the case may be, work permit.”

Migration for Employment

ment such as remuneration and social security;37 and for information on any measures taken or envisaged to regularize the situation of migrants in an irregular situation.38 3.

Other Pertinent ILO Instruments

The ILO Migration for Employment Convention and the ILO Migrant Workers Convention are not the only ILO instruments addressing the protection of migrant workers and their families. There are other Conventions and Recommendations which contain specifijic provisions on migrants as well as instruments of more general application – in addition to the ILO fundamental rights Conventions – which are also clearly relevant to the protection of migrant workers. ILO social security instruments are especially pertinent when it comes to ensuring equal treatment between migrant workers and nationals in respect of access to social security as well as maintenance of their acquired rights in this area. Equal treatment in the fijield of social security between nationals and non-nationals is laid down in Article 68 of ILO’s flagship Convention on social security, the ILO Social Security Convention, ratifijied by fijifty States parties,39 although the second paragraph of this provision contains a restriction in that export of contributory social security benefijits may be made subject to the existence of a bilateral or multilateral agreement providing for reciprocity. 40 However, the ILO Equality of Treatment Convention, adopted ten years later, is designed to treat these issues in more de37

International Labour Organisation (n 33) 756 (observation to Cameroon) in relation to ILO Migrant Workers Convention (n 19) Art 9(1).

38

International Labour Organisation, Report of the Committee of Experts on the Application of Conventions and Recommendations: Articles 19, 22 and 35 of the Constitution (ILO 2009) 646 in relation to ILO Migrant Workers Convention (n 19) Art 9(4), which reads: “Nothing in this Convention shall prevent Members from giving person who are illegally residing or working within the country the right to stay and to take up legal employment.”

39

Albania, Austria, Barbados, Belgium, Bolivia, Bosnia and Herzegovina, Brazil, Bulgaria, Democratic Republic of the Congo, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark, Ecuador, France, Germany, Greece, Honduras, Iceland, Ireland, Israel, Italy, Japan, Jordan (in force from 12 February 2015), Libya, Luxembourg, The former Yugoslav Republic of Macedonia, Mauritania, Mexico, Montenegro, Netherlands, Niger, Norway, Peru, Poland, Portugal, Romania, Senegal, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Togo, Turkey, the UK, Uruguay, and Venezuela.

40

ILO Convention C102: Social Security Convention (Convention concerning Minimum Standards of Social Security) (35th Conference Session Geneva 28 June 1952) Art 68(2).

41

42

Chapter 3 – Ryszard Cholewinski

tail and goes further than the ILO Social Security Convention. The ILO Equality of Treatment Convention has been ratifijied by thirty-seven States parties. 41 Each State party ratifying the Convention is obliged ‘to grant within its territory to the nationals of any other Member for which the Convention is in force equality of treatment under its legislation with its own nationals, both as regards coverage and as regards the right to benefijits, in respect of every branch of social security for which it has accepted the obligations of the Convention’. 42 Consequently, equal treatment with nationals is only accorded to migrants (and their survivors) on the basis of reciprocity. However, the provisions of the Convention apply to refugees or stateless persons without any condition of reciprocity. Article 5 ILO Equality of Treatment Convention also requires that a State party provides for the payment of benefijits to benefijiciaries resident abroad, when eligibility for a benefijit is established by a State party’s national legislation. It should be noted that Article 5 only applies to invalidity benefijits, old-age benefijits, survivors’ benefijits and death grants, and employment injury pensions. Furthermore, the ILO Committee of Experts has underlined that ‘the obligations under Article 5 in respect of any branch of social security for which a ratifying State has accepted the Convention are limited to its own nationals and the nationals of any other Member which has accepted the obligations of the Convention in respect of the branch or branches in question’. 43 Importantly, while the payment of benefijits to benefijiciaries resident abroad may be implemented through inter alia multilateral or bilateral agreements (Article 8), such implementation may not be made conditional on the existence of such agreements. Only in the case of non-contributory invalidity, oldage and survivors’ benefijits their payment to benefijiciaries resident abroad may be made subject to the participation of the State parties concerned in schemes for the maintenance of rights. 41

Bangladesh, Barbados, Bolivia, Brazil, Cape Verde, Central African Republic, Democratic Republic of the Congo, Denmark, Ecuador, Egypt, Finland, France, Germany, Guatemala, Guinea, India, Iraq, Ireland, Israel, Italy, Jordan, Kenya, Libya, Madagascar, Mauritania, Mexico, Norway, Pakistan, Philippines, Rwanda, Suriname, Sweden, Syria, Tunisia, Turkey, Uruguay, and Venezuela. The Netherlands ratified ILO Convention C118: Equality of Treatment Convention (Convention concerning Equality of Treatment of Nationals and NonNationals in Social Security) (46th Conference Session Geneva 28 June 1962) on 3 July 1964, but denounced it on 20 December 2004.

42 43

ILO Equality of Treatment Convention (n 41) Art 3(1). International Labour Organisation, General Survey of the Reports Relating to the Equality of Treatment (Social Security) Convention, 1962 (No. 118) (ILO 1977) para 88.

Migration for Employment

While equality of treatment in social security is also guaranteed in the specifijic ILO instruments protecting migrant workers, in Article 6 ILO Migration for Employment Convention and Part II of the ILO Migrant Workers Convention, and importantly is not made subject to any reciprocity, the ILO Committee of Experts in its 1999 General Survey on the migrant workers instruments observed that these provisions are ‘not designed to deal with the payment of benefijits to benefijiciaries residing abroad’. 44 In addition to the social security instruments, there have been further signifijicant normative developments in the ILO of relevance to international labour migration. In 1997, the International Labour Conference adopted the ILO Private Employment Agencies Convention, 45 which aims to regulate the recruitment process in the private sector where abuse and exploitation of migrant workers often begins. This instrument espouses the important principle that fees should not be charged to workers unless there are exceptional circumstances and imposes a specifijic obligation relating to migrant workers, 46 requiring States parties ‘after consulting the most representative organizations of employers and workers, [to] adopt all necessary and appropriate measures, both within its jurisdiction and, where appropriate, in collaboration with other Members, to provide adequate protection for and prevent abuses of migrant workers recruited or placed in its territory by private employment agencies’. 47 To date, however, the ILO Private Employment Agencies Convention has only been ratifijied by twenty-eight states, sixteen of which are in Europe. 48 Moreover, the thorny issue of domestic work, which remains unregulated by many national labour codes and laws and in which many women migrant workers are found, was the subject of discussion by the International Labour Conference in 44

International Labour Organisation (n 21) para 434.

45

ILO Convention C181: Private Employment Agencies Convention (Convention concerning Private Employment Agencies) (85th Conference Session Geneva 19 June 1997) Arts 7 and 8(1).

46

ILO Private Employment Agencies Convention (n 45) Art 7. ILO Migration for Employment Convention (n 19) Art 7(2) requires States parties to ensure that services provided by their public employment agencies to migrant workers are rendered free of charge.

47

ILO Private Employment Agencies Convention (n 45) Art 8.

48

Albania, Algeria, Belgium, Bosnia and Herzegovina, Bulgaria, Czech Republic, Ethiopia, Fiji, Finland, Georgia, Hungary, Italy, Japan, Lithuania, Moldova, Morocco, Netherlands, Panama, Poland, Portugal, Serbia, Slovakia, Spain, Suriname, The Former Yuguslav Republic of Macedonia, Uruguay, and Zambia.

43

44

Chapter 3 – Ryszard Cholewinski

June 2010. 49 The Conference resolved to propose a comprehensive standard concerning decent work for domestic workers in the form of a Convention supplemented by a Recommendation. Following this discussion, the Offfijice prepared the draft instruments,50 and these were discussed and adopted at the 100th International Labour Conference in June 2011.51 With specifijic reference to the international migration of domestic workers and their protection, the Convention’s Preamble recognizes the ‘signifijicant contribution of domestic workers to the global economy, which includes [inter alia] substantial income transfers within and between countries’,52 and that ‘domestic work continues to be undervalued and invisible and is mainly carried out by women and girls, many of whom are migrants or members of disadvantaged communities and who are particularly vulnerable to discrimination in respect of conditions of employment and or work, and to other abuses of human rights’.53 Importantly, Article 2(1) underscores that the Convention ‘applies to all domestic workers’, which means that migrant domestic workers in an irregular situation also fall within its scope. Article 3 obliges each Member ‘to take measures to ensure the efffective promotion and protection of the human rights of all domestic workers, as set out in this Convention’, and to ‘take the measures set out in this Convention to respect, promote and realize’ the four ILO fundamental principles and rights at work,54 discussed in Section III above. With regard to the situation of migrant domestic workers, the Convention stipulates that domestic workers recruited in one country for domestic work in another, prior to crossing national borders for the purpose of taking up the employment, are entitled ‘to receive a written job offfer, or contract of employment that is enforceable in the country in which the work is to be performed’, and that addresses their terms and conditions of employment.55 The 49

International Labour Organisation, Decent Work for Domestic Workers (ILO 2010). Indeed, this report observes that migrant women comprise the majority of domestic workers in Europe, the Gulf countries and the Middle East (at para 21).

50

International Labour Organisation, Decent Work for Domestic Workers (ILO 2011).

51

ILO Convention C189: Domestic Workers Convention (Convention concerning Decent Work for Domestic Workers) (100th Conference Session Geneva 16 June 2011).

52

Preamble, recital 3 ILO Domestic Workers Convention (n 51).

53

Preamble, recital 4 ILO Domestic Workers Convention (n 51).

54

ILO Domestic Workers Convention (n 51) Arts 3(1) and 3(2).

55

ILO Domestic Workers Convention (n 51) Art 8(1). These terms and conditions of employment are listed in Art 7. However, Art 8(2) stipulates that this provision is not applicable to ‘workers who enjoy freedom of movement for the purpose of employment under bilateral, regional or multilateral agreements, or within the framework of regional economic

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Convention also obliges Members to cooperate with each other to ensure the effective application of the Convention’s provisions to migrant domestic workers.56 In addition to reiterating a number of specifijic labour standards protecting all domestic workers, such as equal treatment with workers generally in relation to employment conditions, including a minimum weekly rest period of at least twenty-four consecutive hours and minimum wage coverage where this exists,57 the Convention also stipulates clearly that domestic workers ‘are entitled to keep in their possession their travel and identity documents’,58 which is one of the abuses they frequently experience. Moreover, the Convention imposes on Members a number of obligations ‘to efffectively protect domestic workers, including migrant domestic workers, recruited or placed by private employment agencies, against abusive practices’.59 With regard to ILO instruments of more general application, the ILO Labour Inspection Convention is recognized by ILO as one of the four Conventions,60 along with the instruments on employment policy, labour inspection in the agricultural integration areas’, and was inserted to allay the concerns of the EU that the obligation in Art 8(1) would be incompatible with EU law on free movement of workers. 56

ILO Domestic Workers Convention (n 51) Art 8(3). Art 8(4) also requires each Member to specify, by means of laws, regulations or other measures, ‘the conditions under which migrant domestic workers are entitled to repatriation on the expiry or termination of the employment contract for which they were recruited’.

57

ILO Domestic Workers Convention (n 51) Arts 10 and 11.

58

ILO Domestic Workers Convention (n 51) Art 9(c).

59

ILO Domestic Workers Convention (n 51) Art 15. These obligations include determining the conditions governing the operation of private employment agencies recruiting or placing domestic workers; ensuring that adequate machinery and procedures exist for the investigation of complaints; adopting all necessary and appropriate measures within its jurisdiction (and where appropriate, in collaboration with other Members) to provide adequate protection for and prevent abuses of domestic workers recruited or placed in its territory by private employment agencies; consideration, in the case of international labour migration for domestic work, of the conclusion of bilateral, regional or multilateral agreements to prevent abuses and fraudulent practices in recruitment, placement and employment; and taking measures to ensure that fees charged by private employment agencies are not deducted from the remuneration of domestic workers.

60

As at July 2014, the ILO Convention C081: Labour Inspection Convention (Convention concerning Labour Inspection in Industry and Commerce) (30th Conference Session Geneva 11 July 1947) has been ratified by 145 States parties. The functions of labour inspectors are laid out in Art 3.

45

46

Chapter 3 – Ryszard Cholewinski

sector and tripartite consultation,61 that ‘are the most signifijicant from the viewpoint of governance’.62 The ILO Committee of Experts has underlined the importance of labour inspection for the adequate protection of migrant workers and has made a number of important observations on labour inspection vis-à-vis immigration enforcement in the context of irregular migration. For example, in an Observation to Italy in 2009, the Committee expressed concerns about the extent of the role played by labour inspectors in immigration enforcement: The Committee (...) emphasizes the need for the Government to take measures to distinguish with sufffijicient clarity the powers and working methods of labour inspectors from those of offfijicials of other bodies responsible for combating illegal employment and migration. Such a separation in no way excludes the possibility of establishing a form of collaboration which involves labour inspectors drawing the attention of the competent authorities to employers in breach of the legislation regarding conditions of work and the protection of workers, especially as regards abuses reported with regard to workers whose situation is irregular. (...) The Committee requests the Government to indicate in its next report any measures taken or envisaged to re-establish labour inspectors in their duties defijined by the Convention and limit their cooperation with the immigration authorities to an extent that is compatible with the purpose of the Convention.63

4.

ILO Multilateral Framework on Labour Migration

In its 1999 General Survey, the ILO Committee of Experts recommended two options to the Governing Body for addressing the difffijiculties posed by the relatively low rate of ratifijication of the ILO Migration for Employment Convention and the ILO Migrant Workers Convention: (i) to maintain the status quo by recognizing the 61

ILO Convention C122: Employment Policy Convention (Convention concerning Employment Policy) (48th Conference Session Geneva 9 July 1964); ILO Convention C129: Labour Inspection Convention (Convention concerning Labour Inspection in Agriculture) (53rd Conference Session 25 June 1969); ILO Convention C144: Tripartite Consultation Convention (Convention concerning Tripartite Consultations to Promote the Implementation of International Labour Standards) (61st Conference Session Geneva 16 May 1978).

62

ILO Declaration on Social Justice for a Fair Globalization 2008 (n 6) para A(vi).

63

ILO Committee of Experts on the Application of Conventions and Recommendations, Individual Observation concerning Labour Inspection Convention, 1947 (No. 81) Italy (80th Conference Session 2010).

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problems Member States experience in accepting any legally binding international standards on labour migration accompanied by a vigorous promotion of the existing standards, with the possible elaboration of supplementary Protocols to address the gaps and shortcomings in these instruments; or (ii) the complete revision of the two instruments, preferably into one single detailed or framework Convention.64 In response, the Governing Body earmarked a general discussion on migrant workers based on an ‘integrated approach’ at the June 2004 International Labour Conference, and recognized: [T]he issues raised by migrant workers for economic and social policy on the one hand, and the protection of human rights on the other, cut across practically all spheres of the normative and technical activities of the ILO. (...) An integrated approach would thus comprise a programmatic response to the issues of migrant workers in a cooperative and comprehensive process among the various concerned ILO sectors and units. It would also allow for a more comprehensive review of the question of whether and how the instruments need to be revised.65

According to the Governing Body, the integrated approach would also ‘offfer an opportunity to examine in greater depth the need for social dialogue in fostering consensus on migration policy at national and international levels’, and would also enable the ILO to consider how to ‘further elaborate and strengthen its role beyond standard-setting in promoting more orderly forms of labour migration’.66 In preparation for the conference discussion on migrant workers, the ILO’s International Migration Programme sent to all Member State governments a comprehensive survey on international labour migration. The aims of the survey were to obtain updated information on the ways in which labour migration and the treatment of migrant workers are being regulated or managed through laws, policies and administrative action; the role played by bilateral and multilateral treaties (with a focus on ILO instruments); and how the social partners participate in the process.67 64 65

International Labour Organisation (n 21) paras 666–667. See agenda point 4 on migrant workers (general discussion based on an integrated approach) of Second Item on the Agenda: Date, place and agenda of the 92nd Session (2004) of the International Labour Conference (ILO 2002) para 108 accessed 25 August 2014.

66 67

ibid para 109. International Labour Organisation, ILO Migration Survey 2003: Country Summaries (ILO 2004).

47

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Chapter 3 – Ryszard Cholewinski

The results of this survey were also incorporated in the ILO’s comprehensive preparatory report Towards a Fair Deal for Migrant Workers in the Global Economy, submitted to the International Labour Conference in June 2004. A large section in this report is devoted to identifying the exploitative conditions under which many migrant workers are employed. The report also examined the protection of the rights of certain categories of migrant workers and concluded that particularly vulnerable groups of migrant workers such as those in irregular status, domestic workers and temporary migrant workers, ‘do not benefijit from an adequate level of protection’.68 The report proposed that the Conference consider the adoption of a plan of action which would ‘engage the ILO and all its constituents in the development of a coherent multilateral framework for the governance of international migration’.69 In this connection, the report also suggested that the Conference examine how the protection gaps identifijied could be fijilled. In underlining that ‘the key to efffective protection of migrants’ rights is the efffective, rights-based management of migration’, which is based on ‘coherent, transparent and comprehensive national policies that enjoy broad public support’ and greater cooperation between countries of origin and destination, the report requested the Conference to consider how, besides normative action, the ILO can promote such policies and best practices.70 On 16 June 2004, the International Labour Conference adopted a Plan of Action for migrant workers, which is to be carried out by the ILO and its constituents in partnership with other relevant international organizations. The Plan of Action was to include inter alia the ‘development of a non-binding multilateral framework for a rights-based approach to labour migration, which takes account of labour market needs’.71

68

International Labour Organisation, Towards a Fair Deal for Migrant Workers in the Global Economy (ILO 2004) para 312.

69

ibid para 450.

70

ibid.

71

See the Committee on Migrant Workers’ conclusions on a fair deal for migrant workers in a global economy in Sixth Item on the Agenda: Migrant Workers (General Discussion Based on an Integrated Approach) (92th Conference Session Geneva 2004) paras 21 and 23 accessed 25 August 2014. This notion is elaborated a little earlier in the Conclusions as follows (ibid para 20): “[A] rights-based approach, in accordance with existing international labour standards and ILO principles, which recognizes labour market needs and the sovereign right of all nations to determine their own migration policies, including determining entry into their territory and under which conditions migrants may remain.”

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Another important component of the Plan of Action includes the ‘identifijication of the relevant action to be taken for a wider application of international labour standards and other relevant instruments’, with a focus on obstacles to the ratifijication of the ILO Migration for Employment Convention and the ILO Migrant Workers Convention, but also the consideration of other relevant standards,72 such as the 1990 Migrant Workers Convention and the 2000 UN Convention against Transnational Organized Crime and its Protocols against Trafffijicking in Persons and Smuggling of Migrants.73 In particular, the Plan of Action notes under this head: Consistent with efffective management of migration, due consideration should be given to the particular problems faced by irregular migrant workers and the vulnerability of such workers to abuse. It is important to ensure that the human rights of irregular migrant workers are protected. It should be recalled that ILO instruments apply to all workers, including irregular migrant workers, unless otherwise stated. Consideration should be given to the situation of irregular migrant workers, ensuring that their human rights and fundamental labour rights are efffectively protected, and that they are not exploited or treated arbitrarily. Due consideration should also be given to the gender dimension in the application of relevant international labour standards, as well as to the various categories of temporary migrant workers, including seasonal workers.74

The remaining components of the Plan of Action include ‘support for implementation of the ILO Global Employment Agenda at national level; capacity building, awareness raising and technical assistance; strengthening social dialogue; improving the information and knowledge base on global trends in labour migration, conditions of migrant workers, and efffective measures to protect their rights; and mechanisms to ensure ILO Governing Body follow-up of the Plan of Action and ILO participation in relevant international initiatives concerning migration’.75

72

ibid para 21.

73

UN Convention against Transnational Organized Crime (adopted 15 November 2000, entered into force 29 September 2003) 2225 UNTS 209 (CTOC); Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (adopted 15 November 2000, entry into force 25 December 2003) 2237 UNTS 319; Protocol against the Smuggling of Migrants by Land, Sea and Air (adopted 15 November 2000, entry into force 28 January 2004) 2241 UNTS 507.

74

ibid para 28.

75

ibid para 21.

49

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Chapter 3 – Ryszard Cholewinski

The ILO Multilateral Framework on Labour Migration was subsequently deliberated upon and adopted by a Tripartite Meeting of Experts in November 2005, and approved for publication and dissemination by the ILO Governing Body in March 2006.76 It sets out a number of principles in the following nine areas: (i) decent work; (ii) means for international cooperation on labour migration; (iii) global knowledge base; (iv) efffective management of labour migration; (v) protection of migrant workers; (vi) prevention of and protection against abusive migration practices; (vii) migration process; (viii) social integration and inclusion; and (ix) migration and development. These principles are supported by more detailed guidelines and a compendium of ‘best practices’ in connection with the areas outlined.77 In 2009, the Government of Sri Lanka, on the basis of tripartite discussions and with ILO’s support, adopted a national labour migration policy guided by the Multilateral Framework.78 Other governments have also taken account of the Framework in the adoption of their national labour migration policies.

76

International Labour Organisation, ILO Multilateral Framework on Labour Migration: Nonbinding Principles and Guidelines for a Rights-based Approach to Labour Migration (ILO 2006).

77

International Labour Organisation, annex II (examples of best practices) (n 76). The understanding of ‘best practice’ is carefully defined in the Framework: “In including best practices in this annex, the Office has used a number of criteria. The practices must be rights-based or, in other words, in line with international norms for the protection of workers’ rights. They should be innovative, representing creative responses and solutions to problems, have an impact on improving labour migration processes, increasing the benefits and reducing the costs of migration. The possibility of wider application or replication is another important factor. Practices should be sustainable over time and supported by requisite administrative capacity for continuity. Cooperation between States is another significant criterion. The term ‘best’ practices is used in a relative sense to indicate ‘good’ practices. This is because the practices included here may not satisfy all the criteria.”

78

Ministry for Foreign Employment Promotion and Welfare, National Labour Migration Policy for Sri Lanka (ILO 2008).

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IV.

International Human Rights and the 1990 Convention on Migrant Workers

Given the ILO’s historical and constitutional concern for migrant workers, the need for a comprehensive UN role in this area was somewhat contentious. The reasons vary ranging from the broader human rights mandate of the UN to the essentially self-interested wishes of a number of States to regulate the content of the fijinal text without the formal intervention of other non-State parties, namely the social partners and civil society organizations.79 Given this latter justifijication, however, it remains somewhat paradoxical that few States (and especially destination countries) seem prepared to ratify the ICRMW after its adoption and that the considerable efforts of civil society have been largely instrumental for its entry into force on 1 July 2003.80 The broader human rights mandate of the UN means that the ICRMW is in theory able to address most of the concerns and interests of migrant workers and members of their families. Its adoption reinforces that migrant workers are more than just a factor of production; they are social entities with families and accordingly are entitled to protection of their basic economic, social, cultural and civil rights, 79

Ryszard Cholewinski, Migrant Workers in International Human Rights Law: Their Protection in Countries of Employment (Clarendon Press 1997) 141-142; Patrick A Taran, ‘The Key Role of International Labour Standards in Defending Rights of Non-nationals’, a statement to the Expert Meeting on clarifying and expanding the rights of non-nationals organized by the Open Society Justice Initiative in New York at 9–10 November 2003 (on file with the author).

80

A coalition of international organizations, NGOs and worker organizations has played an important role in promoting the ratification of the ICRMW (n 26). See International Steering Committee for the Campaign for Ratification of the Migrants Rights Convention, Guide on Ratification of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ISCCRMRC 2009). See also Mariette Grange and Marie d’Auchamp, ‘Role of Civil Society in Campaigning for and Using the ICRMW’ in Paul de Guchteneire, Antoine Pécoud and Ryszard Cholewinski (eds), Migration and Human Rights: The United Nations Convention on Migrant Workers’ Rights (UNESCO and CUP 2009) 70–99. As of July 2014, the ICRMW had been ratified by forty-seven States; see the Annex for a list of ratifications. For an analysis of the ICRMW in a migration and human rights context as well as the responses to it in a series of countries, see part II chs 7-15 in De Guchteneire, Pécoud and Cholewinski. For a detailed examination of the ICRMW’s provisions in the light of its drafting history, see Cholewinski (n 79) ch 4.

51

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Chapter 3 – Ryszard Cholewinski

elaborated also in the 1948 Universal Declaration of Human Rights (UDHR) and the widely ratifijied 1966 International Covenants on Civil and Political Rights (ICCPR), and Economic, Social and Cultural Rights (ICESCR).81 As with the ILO International Labour Standards specifijically addressing this group of workers, the ICRMW goes beyond the treatment of migrant workers in the country of employment and covers the entirety of the migration process,82 particularly with a view to the prevention of abuses. As with Part I of the ILO Migrant Workers Convention, Part VI of the ICRMW is devoted to this question and calls upon States parties to cooperate to prevent irregular migration and the exploitation of migrant workers, and to impose sanctions on those who facilitate irregular migration; thus migrant smugglers, trafffijickers in human beings as well as unscrupulous recruitment agencies and employers of migrant workers in irregular status would be covered under this head.83 The ICRMW explicitly protects migrants in irregular status as well as those who are lawfully resident and in Part III lists the fundamental rights (civil and political rights and economic, social and cultural rights) to which all migrant workers should be entitled. However, according to Fernand de Varennes, Part III ‘is much more that a reiteration of relevant international human rights provisions’, because it emphasises ‘[t]hat migrants – not just citizens – are entitled to the full protection of most international human rights standards’ and ‘[t]he necessity of clarifying the legal consequences of the proper application of general human rights standards to the particular situation of migrants’.84 Moreover, the ICRMW also contains provisions that provide for wider protection or that are specifijically connected with the labour migration process. For example, with regard to the former, Article 22 enumerates comprehensive procedural and substantive safeguards against expulsion applicable to all migrant workers irrespec81

International Covenant on Civil and Political Rights (adopted 16 December 1966, entry into force 23 March 1976) 999 UNTS 171 (ICCPR); ICESCR (n 25).

82

This is evident from the expansive definition of migrant worker in ICRMW (n 26) Art 2(1), which ‘refers to a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national’.

83

Part VI ICRMW (n 26) is entitled ‘Promotion of Sound, Equitable, Humane and Lawful Conditions connected with International Migration of Workers and Members of their Families’ and the first provision in Part VI, ICRMW Art 64(1), requires States parties to consult and cooperate with one another in this respect.

84

Fernand de Varennes, ‘Strangers in Foreign Lands: Diversity, Vulnerability and the Rights of Migrants’ (2002) UNESCO Most Discussion Paper, 21 accessed 31 March 2012.

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tive of their immigration status, and this is much broader in personal scope than Article 13 of the ICCPR which is limited to those non-nationals who are ‘lawfully in the territory of a State Party’. Concerning the elaboration of specifijic provisions, the ICRMW also recognizes the right of migrant workers to transfer their earnings and savings and requires States parties to take appropriate measures to facilitate such transfers.85 These provisions are of particular importance given that the remittances of migrant workers are seen as being of crucial economic benefijit to countries in the developing world, and in some smaller countries also constitute today a signifijicant part of their Gross Domestic Product (GDP).86 Despite the existence of such progressive provisions, other stipulations in the ICRMW clearly reflect its more State-centred ethos in contrast to the tripartite ‘tone’ of ILO instruments. For example, the so-called ‘sovereignty clause’ in Article 79 underlines that migrant worker admission policies remain subject to the remit of States parties: Nothing in the present Convention shall afffect the right of each State Party to establish the criteria governing admission of migrant workers and members of their families. Concerning other matters related to their legal situation and treatment as migrant workers and members of their families, States Parties shall be subject to the limitations set forth in the present Convention.87

Some of the more progressive standards in the ILO Migrant Workers Convention have also been diluted considerably in the ICRMW, such as the right to free choice of employment where States parties are permitted to retain considerably more discretion.88 Moreover, while the ICRMW contains a wider and more detailed defijinition of migrant worker than that found in ILO instruments, as well as defijinitions of the diffferent categories of migrant workers covered,89 the rights of certain specifijic 85 86

ICRMW (n 26) Arts 32 and 47. For example, in Tajikistan and Moldova, in 2009 remittances constituted 35 and 23 percent of their GDP respectively. See World Bank, Migration and Remittances Factbook 2011 (2nd ed, World Bank 2011) 14.

87

See also the discussion in Linda S Bosniak, ‘Human Rights, State Sovereignty and the Protection of Undocumented Migrants under the International Migrant Workers’ Convention’ in B Bogusz et al (eds), Irregular Migration and Human Rights: Theoretical, European and International Perspectives (Martinus Nijhoff, 2004) 333.

88

ICRMW (n 26) Arts 52 and 53.

89

ICRMW (n 26) Arts 2(1) and 2(2).

53

54

Chapter 3 – Ryszard Cholewinski

categories of temporary migrants, such as seasonal workers, project-tied workers or specifijied-employment workers, are explicitly curtailed in Part V of the ICRMW, and students and trainees are excluded from its scope.90 The attempt in Part III of the ICRMW to list the fundamental human rights applicable to all migrant workers has also led to some anomalies. In particular, a literal reading of the Convention’s text suggests that migrant workers in irregular status have no right to form their own trade unions.91 Such a reading, however, is clearly contrary to the more general protections affforded by the UDHR, the ICCPR, the ICESCR and Article 2 ILO Freedom of Association and Protection of the Right to Organise Convention.92 Indeed, the ILO supervisory Committee on Freedom of Association, which draws its mandate from the ILO Constitution, concluded in March 2001 that the Spanish Foreigners’ Law restricting migrant workers’ trade union rights by making their exercise dependent on authorization of their presence or residence in Spain was not in conformity with the broad scope of Article 2.93 The Committee stated that Article 2 ILO Freedom of Association and Protection of the Right to Organise Convention covers all workers 90

ICRMW (n 26) Art 3(e). See also R Böhning, ‘The Protection of Temporary Migrants by Conventions of the ILO and the UN’ 6 accessed 25 August 2014. This paper has been presented to the International Institute for Labour Studies Workshop on Temporary Migration: Assessment and Practical Proposals for Overcoming Protection Gaps in Geneva at 18–19 September 2003.

91

ICRMW (n 26) Art 26(1)(b) refers merely to the right ‘to join freely any trade union’ as compared with Art 40(1) in Part IV, which is only applicable to migrant workers and their families in a documented or regular situation, stipulating that such migrants ‘shall have the right to form associations and trade unions in the State of employment for the promotion and protection of their economic, social, cultural and other interests’ (emphasis added).

92

See respectively UDHR Art 23(4), ICCPR (n 81) Art 22; ICESCR (n 25) Art 8; Freedom of Association and Protection of the Right to Organise Convention (n 15) Art 2. The latter provision is unequivocal: “Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization” (emphasis added). For an analysis of this provision, see Jane Hodges-Aeberhard, ‘The Right to Organize in Article 2 of Convention No. 87: What is meant by Workers “Without Distinction Whatsoever”?’ (1989) 128 International Labour Review 177-194.

93

Spain (Case No 2121) (3 July 2001) Report of the Committee on Freedom of Association No 327 (Vol LXXXV 2002 Series B No 1) [561].

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and exceptions were only permissible in relation to the armed forces and the police as provided for in Article 9.94 Fortunately, the Committee on Migrant Workers, the body responsible for monitoring the application of the ICRMW in State parties, has adopted an expansive interpretation of the trade union rights of migrant workers despite the narrower wording found in Part III. In its fijirst General Comment on migrant domestic workers, issued in January 2011, the Committee observes: “The laws of States parties, particularly countries of employment of migrant domestic workers, should recognize the right of the latter to form and join organizations, regardless of migration status (Article 26) and self-organization should be encouraged.”95 V.

The Myth of Non-Ratification

While the three specifijic international instruments protecting migrant workers have not been widely ratifijied in comparison to the fundamental International Labour Standards and other core human rights instruments, taken together they comprise, as some commentators have observed, an ‘international charter on migration’, providing a broad and comprehensive framework covering most issues of treatment of migrant workers and members of their families. Moreover, they are not just instruments on rights alone, but also contain provisions to encourage and guide intergovernmental consultation, information sharing and cooperation on most aspects of international labour migration.96 To contend, therefore, that these instruments are irrelevant because they have not been widely ratifijied is somewhat of a myth, especially when again they are considered together. Eighty-three countries –nearly two-thirds of the some 130 countries for which international labour migration is an important feature– have ratifijied at least one of these three complementary conventions. Eleven Member States belonging to the EU or the European Economic Area (EEA) have ratifijied one or 94

ibid. The Committee on Freedom of Association invited the ILO Governing Body to approve the recommendation that the Spanish Government ‘as concerns the legislation in cause, to take into account the terms of Article 2 of Convention No. 87, according to which workers, without distinction whatsoever, have the right to join organizations of their own choosing’ (at para 562).

95

UNCMW, ‘General Comment No. 1 on Migrant Domestic Workers’ (2011) UN Doc CMW/C/ GC/1, 9.

96

Ryszard Cholewinski and Patrick Taran, ‘Migration, Governance and Human Rights: Contemporary Dilemmas in the Era of Globalization’ (2009) 28(4) Refugee Survey Quarterly 1, 20.

55

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both of the ILO conventions on migrant workers, among them most of the larger migrant worker destination countries in the EU: Belgium, France, Germany, Italy, the Netherlands, Norway, Slovenia, Spain, Sweden, Portugal and the United Kingdom. On the southern shores of the Mediterranean, Algeria, Egypt, Libya and Morocco have ratifijied the ICRMW, and Algeria and Israel have also ratifijied the ILO Migration for Employment Convention.97 The full list of countries which have ratifijied or signed one or more of the three instruments is provided in the Annex. Nevertheless, the continued reluctance of many States to agree to legally binding multilateral instruments regulating international labour migration and protecting the rights of migrant workers remains a serious concern. In conducting its General Survey in 1999 on the four ILO instruments on migrant workers, the Committee of Experts – in addition to alluding to the legal difffijiculties that a number of progressive provisions give rise to, as noted above – identifijied the following principal obstacles to the ratifijication of the ILO Migration for Employment Convention and the ILO Migrant Workers Convention: – The non-conformity of national legislation with the instruments’ provisions in many origin and destination countries; – The fijinancial cost of implementing the instruments and the additional workload for national labour administrations that ratifijication would entail; – The existence of a difffijicult economic situation and high unemployment rates in some countries with the result that preference is given to national over foreign labour; – The relative novelty of international labour migration on a large scale for a number of countries (e.g. Azerbaijan, Belarus, China, Czech Republic, Romania and Tajikistan) and the need to develop appropriate national measures; – The specifijicity of the labour market in certain countries (for example, the high proportion of foreigners in the labour force in countries such as Bahrain and Luxembourg); – The views of some signifijicant countries of origin (e.g. Mexico and Pakistan) that the instruments are primarily concerned with addressing labour shortages in countries of employment rather than the needs of countries of origin.98 Some of these obstacles also apply to the ratifijication of the ICRMW, such as the technical challenges it poses for domestic administrations to implement it given the size of the text and its complexity, and its non-conformity with national legislation 97

ibid.

98

International Labour Organisation (n 21) paras 629-635.

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in a number of countries. On the other hand, national studies conducted in selected EU Member States have found that national legislation in many of these States is already entirely or largely in conformity with the content of the ICRMW,99 while other studies that are broader in scope generally conclude that resistance to or difffijiculties in ratifijication are primarily for political rather than legal reasons.100 In addition to a lack of political will in many countries to ratify the ICRMW, other obstacles identifijied to ratifijication of the ICRMW relate to the general lack of awareness and knowledge of the ICRMW, and the absence of adequate promotional activity.101 In an empirical study undertaken for UNESCO in 2003 on obstacles to the ratifijication of the ICRMW in seven countries in the Asia-Pacifijic region, Nicola Piper and Robyn Iredale identify two major hurdles applicable to origin and destination countries respectively. First, some countries of origin fear that ratifijication will result in a loss of labour markets in destination countries to their non-ratifying competitors. The authors argue that this hurdle can be offfset by better collaboration among countries of origin in the region102 and the encouragement of regional 99

See eg Marie-Claire Foblets, Dirk Vanheule and Sander Loones, De Internationale VN-Conventie van 1990: Rechtsgevolgen van een Belgische ratificatie: een verkennende studie (KU Leuven and University of Antwerp 2003) accessed 25 August 2014. A shorter version of the report has also been published as an article: Dirk Vanheule et al, ‘The Significance of the UN Migrant Workers’ Convention of 18 December 1990 in the Event of Ratification by Belgium’ (2004) 6(4) EJML 285.

100 René Plaetevoet and Marika Sidoti, Ratification of the UN Migrant Workers Convention in the European Union: Survey on the Positions of Governments and Civil Society Actors (EPMWR 2010) accessed 25 August 2014; Euan MacDonald and Ryszard Cholewinski, The Migrant Workers Convention in Europe: Obstacles to the Ratification of the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families: EU/EEA Perspectives (UNESCO Migration Studies, UNESCO 2007). 101

Antoine Pécoud and Paul de Guchteneire, ‘Migration, Human Rights and the United Nations; An Investigation into the Low Ratification Record of the UN Migrant Workers Convention’ (2004) GCIM Global Migration Perspectives 3/2004 accessed 25 August 2014; Cholewinski (n 80) 202; Patrick Taran, ‘Human Rights of Migrants: Challenges of the New Decade” (2001) 28(6) International Migration 7, 22.

102

Indeed, such collaboration among Asian countries of origin is already taking place under the ‘Colombo Process’ (n 142 and accompanying text).

57

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Chapter 3 – Ryszard Cholewinski

leadership by a country such as the Philippines, which is widely regarded to be the model country of origin in the Asia-Pacifijic in terms of acceptance of international instruments on migrant workers and undertaking innovative steps to protect its nationals employed abroad. Second, destination countries face sensitive political obstacles connected with the protections affforded by the ICRMW to migrants in irregular status as well as the mistaken perception that it requires the admission of family members of migrant workers.103 With regard to the latter concern of destination countries regarding family reunion, Article 44(2) of the ICRMW merely requires States parties to “facilitate” the reunifijication of certain close family members. While this is not a strict obligation, clearly any laws and policies prohibiting the reunifijication of families outright or deliberately impeding such reunifijication would violate this provision. The replacement of the UN Commission on Human Rights by the Human Rights Council in March 2006 has given rise to an important new mechanism, the Universal Periodic Review (UPR), which ensures that the human rights obligations of all 192 UN Member States, including those applicable to migrant workers and their families, are subject to scrutiny.104 By the end of 2011, all the UN Member States will have been subjected to the UPR, which to date has revealed interesting information relating to the human rights of migrants, as well as on the position of the countries concerned vis-à-vis ratifijication of the ICRMW. For example, in the review of Canada’s human rights obligations, a number of UN Member States recommended that Canada ratify the ICRMW.105 In response, Canada reported that this recommendation ‘cannot currently be accepted’; that ‘at present, Canada is not considering becoming a party to the (...) ICRMW’; and that this treaty (along with a number of others) ‘may be reviewed at a later date’.106

103

Robyn Iredale and Nicola Piper, Identification of the Obstacles to the Signing and Ratification of the UN Convention on the Protection of the Rights of all Migrant Workers 1990: The Asia Pacific Perspective (UNESCO 2003).

104 For more information on the UPR, see the Office of the High Commissioner for Human Rights (OHCHR), Universal Periodic Review at accessed 25 August 2014. 105

UNHRC, ‘Report of the Working Group on the Universal Periodic Review: Canada’ (1 October 2009) UN Doc A/HRC/11/17, para 86 (recommendation 5).

106 UNHRC, ‘Report of the Working Group on the Universal Periodic Review: Canada (Add.: Views on conclusions and/or recommendations, voluntary commitments and replies presented by the State under review)’ (8 June 2009), UN Doc A/HRC/11/17/Add. 1, para 9.

Migration for Employment

The UN Special Rapporteur on the human rights of migrants promotes the human rights of all migrants – including migrant workers –around the world– by raising specifijic concerns in annual reports, making country visits and also recommending to States that they ratify relevant human rights standards including ratifijication and implementation of the ICRMW.107 For example, example, after his visit to the United States in April and May 2007, the Special Rapporteur recommended that: The Government should ensure that state and federal labour policies are monitored, and their impact on migrant workers analysed. Policymakers and the public should be continually educated on the human needs and human rights of workers, including migrant workers. In this context, the Special Rapporteur strongly recommends that the United States consider ratifying the (...) [ICRMW].108

VI.

Regional Instruments on Migration for Employment

In addition to the role of international human rights law and International Labour Standards in the fijield of labour migration, normative developments at the regional level, including in the legal protection of migrant workers and their families, are contributing considerably to raising awareness of the precarious plight of many migrant workers and opening doors for their improved treatment. Within the African and inter-American systems for the protection of human rights, there are no specifijic legally binding instruments protecting migrant workers and their families. In Africa, however, this group of persons enjoys the general human rights protection provided by the 1981 African (Banjul) Charter of Human and

107

The mandate of the Special Rapporteur was established by the former Commission on Human Rights in 1999 and has since been renewed on a number of occasions, first by the Commission and subsequently by the Human Rights Council (when the mandate was also strengthened). The current incumbent is Jorge Bustamente from Mexico, although as of September 2011 he will be replaced by François Crépeau from Canada, who was selected by the Human Rights Council. For more information on the Special Rappourteur’s work, including on reports and country visits, see the OHCHR website at accessed 25 August 2014.

108 UNHRC, ‘Report of the Special Rapporteur on the Human Rights of Migrants, Jorge Bustamente (Add. 2: Mission to the United States of America)’ (5 March 2008) UN Doc A/ HRC/7/12/Add.2, para 126.

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Peoples’ Rights,109 adopted under the auspices of the former Organisation for African Unity (since replaced by the African Union), and in the Americas by the 1948 American Declaration on the Rights and Duties of Man and the 1969 American Convention on Human Rights (Pact of San José),110 adopted under the auspices of the Organization of American States (OAS). These instruments guarantee equal protection before the law and freedom from discrimination on a number of grounds which are not exhaustive.111 Certain principles applicable to migrant workers and their families have also been developed on the basis of the work of the Inter-American Commission on Human Rights and the case law of the Inter-American Court of Human Rights. The Inter-American Court of Human Rights signifijicantly advanced the human rights of migrant workers in an irregular situation in its Advisory Opinion concerning the legal status and rights of undocumented migrants in 2003.112 At the request of Mexico, the Court underscored unequivocally in an extensively argued opinion that such migrants are entitled to all international human rights, including rights in the employment context as workers.113 Clearly, this Advisory Opinion, which drew inspiration from a broad range of international and regional human rights norms and labour standards, has implications going beyond the Americas. The same court subsequently 109 African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) OAU Doc CAB/LEG/67/3/Rev 5 (ACHPR). The ACHPR has been ratified by fifty-three States. 110

See American Declaration of the Rights and Duties of Man, OAS Res XXX adopted by the Ninth International Conference of American States (1948) reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System OEA/Ser L V/II.82 Doc 6 Rev 1 at 17 (1992); American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) OAS Treaty Series 36 (ACHR). The ACHR has been ratified by twenty-four states.

111 112

ACHPR (n 109) Arts 2 and 3; ADRDM (n 110) Art 2; ACHR (n 110) Arts 1(1) and 24. Inter-American Court of Human Rights, Juridical Condition and Rights of the Undocumented Migrants (Advisory Opinion of 17 September 2003) accessed 25 August 2014.

113

ibid. Specifically, the Inter-American Court of Human Rights stated in paragraph 8 of its Advisory Opinion that ‘the migratory status of a person cannot constitute a justification to deprive him [or her] of the enjoyment and exercise of human rights, including those of a labor-related nature. When assuming an employment relationship, the migrant acquires rights that must be recognized and ensured because he [or she] is an employee, irrespective of his [or her] regular or irregular status in the State where he [or she] is employed. These rights are a result of the employment relationship’.

Migration for Employment

ruled in The Yean and Bosico Children v. Dominican Republic114 that it was a violation of the American Convention on Human Rights (ACHR) to refuse to issue birth certifijicates to two girls of Haitian ancestry born in the Dominican Republic – and in spite of that country’s constitution granting citizenship to anyone born in the territory under the principle of jus soli – because this rendered them efffectively stateless and in an irregular situation thus denying them a number of important rights associated with citizenship. Moreover, the Court underscored that all children irrespective of their background, including immigration status, have the right to free primary schooling.115 This ruling has had a similarly important impact to the Advisory Opinion in terms of underscoring important human rights values, even though the institutions of the Dominican Republic have not accepted the Court’s ruling and that country’s constitution has since been amended to introduce the principle of jus sanguinis.116 With regard to the Additional Protocol to the ACHR in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador),117 in July 2008 the InterAmerican Commission on Human Rights issued guidelines for the evaluation and monitoring of these rights, in which it identifijied equality and non-discrimination as one of the three cross-cutting themes (in addition to access to justice and access to information and participation). Migrants in an irregular situation were recognized as one of the social groups in the Americas to which specifijic attention should be paid in respect of the ‘situations of severe inequality that condition or limit the possibility to enjoy their social rights’.118 In light of the importance that 114

Inter-American Court of Human Rights, Case of the Girls Yean and Bosico v Dominican Republic, Inter-Am (Judgment of 8 September 2005) accessed 25 August 2014.

115

ibid.

116

For an update of the developments in the Dominican Republic since the ruling of the Court, see the Open Society Justice Initiative’s web page at accessed 25 August 2014.

117

Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador) (entered into force 16 November 1999) OAS Treaty Series No 69 (1988) reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System OEA/Ser L V/II.82 Doc 6 Rev 1 at 67 (1992). The Protocol has been ratified by sixteen States.

118

Inter-American Commission on Human Rights, ‘Guidelines for Preparation of Progress Indicators in the Area of Economic, Social and Cultural Rights’ (2008) OAS Doc OEA/

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migration for employment has acquired in the region, the Commission also decided to devote special attention to the situation of migrant workers and their families. The OAS General Assembly adopted a number of resolutions on this topic and organised Summits of Heads of State. In 1997, the Commission appointed a Special Rapporteurship on Migrant Workers and their Families with a view to promoting the human rights of this vulnerable group in the Americas.119 The establishment of this mechanism complements the UN Special Rapporteurship within the UN system referred to above. To date, the Special Rapporteur has visited and reported on the situation of migrant workers and their families in Costa Rica, Guatemala, Mexico, and the United States.120 The Council of Europe, which comprises forty-seven Member States spanning the whole European continent, represents a region in the world that contains a broad range of legally binding instruments protecting human rights. The best known of these is the European Convention on Human Rights (ECHR),121 which applies to ‘everyone’ within the jurisdiction of a State party,122 and thus does not in general make distinctions on the basis of nationality or immigration status.123 In this regard, the judicial body authorized by the ECHR to give legally binding rulings, the European Court of Human Rights, has issued a series of important judgments relating to the human rights of migrants generally, including inter alia: protection against refoulement in cases where the person concerned is subject to a real risk of serious harm in the country to which he or she is being returned;124 conditions of detention of Ser.L/V/II.132/Doc.14/Rev.1, para 53 accessed 31 March 2012. 119

See the website of the Special Rapporteurship at accessed 25 August 2014.

120

See the webpage at accessed 25 August 2014. These reports contain considerable factual information on labour migration in the region, the conditions of migrant workers and their families, the national regulatory frameworks pertaining to labour migration, as well as the pertinent international and regional instruments accepted by the countries in question.

121

The ECHR has been ratified by all forty-seven Council of Europe Member States.

122

ECHR Art 1.

123

However, some rights are restricted to nationals, such as the right to free movement within a country (ECHR Protocol 4 Art 2) and procedural safeguards in the context of expulsion are limited to those non-nationals who are lawfully resident in the territory of a State party (ECHR Protocol 7 Art 1).

124

ECHR Art 3; Chahal v The United Kingdom App no 22414/93 (ECtHR, 15 November 1996).

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asylum-seekers125 –case law of relevance also to migrants in irregular status– as well as the legal limits of their detention;126 the protection of family life in the context of expulsion from and admission to the territory;127 safeguards against collective expulsion;128 and protection from discrimination on the grounds of nationality in the fijield of social security.129 Needless to say, much of this case law is also applicable to migrant workers and their families in comparable situations. The complementary social rights instrument of the Council of Europe, the European Social Charter, as well as its revised version,130 is on its face considerably more restrictive in personal scope than the ECHR because it only applies to nationals from other Contracting Parties who are ‘lawfully resident or working regularly’ within the territory of the Contracting party.131 However, the European Committee of Social Rights has sought to give the Charter an expansive interpretation to protect particularly vulnerable groups of migrants. In complaints against France and the Netherlands under the Charter’s Collective Complaints Protocol,132 which has been accepted by just over one quarter of Council of Europe Member States,133 the Committee has adopted a teleological and liberal interpretation of its provisions to 125

ECHR Art 3; S.D. v Greece App no 53541/07 (ECtHR, 11 June 2009); M.S.S. v Belgium and Greece (2011) App no 30696/09 (EctHR, 21 January 2011).

126 127

ECHR Art 5(1)(f); Saadi v The United Kingdom App no 13229/03 (ECtHR, 29 January 2008). ECHR Art 8; Boultif v Switzerland App no 54273/00 (ECtHR, 2 August 2001) and Sen v Netherlands App no 31465/96 (ECtHR, 21 December 2001).

128 129

ECHR Protocol 4 Art 4; Conka v Belgium App no 51564/99 (ECtHR, 5 February 2002). ECHR Art 14; ECHR Protocol 1 Art 1; Gaygusuz v Austria App no 17371/90 (ECtHR, 19 September 1996); Poirrez v France App no 40892/98 (ECtHR, 30 September 2003); Andrejeva v Latvia App no 55707/00 (ECtHR, 18 February 2009). For a succinct overview of this case law, see Paul E Minderhoud, ‘Social Security Rights of Third Country Nationals: Developments in EU Legislation and in the Case Law of the European Court of Human Rights’ (2010) 17(4) JSSL 227, 234–238.

130

European Social Charter (adopted 18 October 1960, entered into force 26 February 1965) CETS 35; Revised European Social Charter (adopted 3 May 1996, entered into force 1 July 1999) CETS 163.

131

Appendix to the European Social Charter.

132

Additional Protocol to the European Social Charter Providing for a System of Collective Complaints (adopted 9 November 1995, entered into force 1 July 1998) CETS 158 (hereinafter ‘Collective Complaints Protocol’).

133

The Collective Complaints Protocol (n 132) has been ratified by thirteen Council of Europe Member States.

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underscore that migrant children in an irregular situation (including unaccompanied minors) should be affforded efffective access to rights to health care and housing.134 The Committee also underlined the need to interpret the Charter in the light of other international human rights instruments: [T]he Charter cannot be interpreted in a vacuum. The Charter should so far as possible be interpreted in harmony with other rules of international law of which it forms a part, including in the instant case [i.e. against the Netherlands] those relating to the provision of adequate shelter to any person in need, regardless whether s/he is on the State’s territory legally or not.135

It is not inconceivable, therefore, that this ‘case law’ may well be applied beyond migrant children to other vulnerable groups of migrants, including migrant workers in irregular status. The Council of Europe also has its own instrument, which specifijically aims to protect migrant workers, namely the European Convention on the Legal Status of Migrant Workers.136 The relevance of this instrument was questioned for a long period given that it had only been ratifijied by a limited number of countries belonging to the former 15 Member States of the European Union, Norway (which is part of the European Economic Area – EEA) and Turkey, and that it only applies on the basis of reciprocity to lawfully resident migrant workers who are nationals of other States parties. However, the Convention’s recent ratifijication by Albania (in 2007), Moldova (in 2006) and the Ukraine (in 2007), a signifijicant number of whose nationals are lawfully working in EU Member States that have previously ratifijied it, such as Italy and Portugal,137 should breathe some new life into this instrument. In the European Union, effforts to develop a common normative approach to labour migration from outside the EU have encountered numerous sensitivities on the part of Member States and the results to date have been rather mixed. While this 134

International Federation of Human Rights Leagues (FIDH) v France, Complaint No 14/2003 (European Commission of Social Rights, 4 May 2005); Defence for Children International v the Netherlands Complaint No 47/2008, (European Commission of Social Rights, 20 October 2009).

135 136

Defence for Children International (n 134) [35]. European Convention on the Legal Status of Migrant Workers (adopted 24 November 1977, entered into force 1 May 1983) CETS 93.

137

Four other EU Member States have ratified the European Convention on the Legal Status of Migrant Workers (n 136): France, the Netherlands, Spain and Sweden.

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economic and political system of regional integration is widely regarded as afffording a best practice model of social rights protection for those citizens and their family members who move from one EU Member State to another to take up work,138 the legal situation of third-country (i.e. non-EU) nationals employed in the EU difffers from Member State to Member State. It should be recalled that the EU only gained more extensive competence over migration from third countries in May 1999 when the Treaty of Amsterdam came into force and transferred asylum and immigration matters –which were formerly the subjects of intergovernmental cooperation– to the then fijirst (Community) pillar giving the Council of Ministers the mandate to adopt legally binding measures in a specifijied number of areas. However, not all EU Member States are fully participating in this endeavour,139 and the EU has no competence to determine the volume of third-country nationals admitted for the purpose of employment which remains a matter for Member States.140 To date, the substantive measures adopted have focused on steps towards the creation of a common European asylum system and prevention of irregular migration. Formulation of a coherent and robust EU rules on legal or labour migration from outside the EU is coming up against a number of difffijiculties in the face of stifff opposition from some Member States, which has also been exacerbated by the global fijinancial and economic crisis. The original intention in a proposed Directive in 2001 to adopt clear and workable rules on the conditions governing the lawful entry and residence of third-country nationals for the purpose of employment 141 (i.e. by way of a ‘horizontal’ approach applicable to most forms of labour migration) in essence mirrors the approach taken by the specifijic

138

As compared with other regional economic integration regimes which are still in the early phases of implementation and where advances regarding free movement of workers have been limited. For an overview of such regimes in the context of worker mobility, see S Nonnenmacher, ‘Achieving Best Outcomes from Global, Regional and Bilateral Cooperation’ in International Organization for Migration, World Migration 2008: Managing Labour Mobility in the Evolving Economy (IOM 2008) 362–368.

139

Denmark, Ireland and the UK secured ‘opt-outs’ at the time of the entry into force of the Treaty of Amsterdam.

140 TFEU Art 79(5). 141

European Commission, ‘Proposal for a Directive on the conditions of entry and residence of third-country nationals for the purpose of paid employment and self-employed economic activities’ COM (2001) 386 final. This proposal did not meet with any consensus in the Council and was eventually withdrawn by the Commission.

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international instruments protecting migrant workers.142 However, the text of the 2001 draft Directive did not meet with any consensus in the Council and was replaced by the European Commission, after consultation with Member States and a number of other stakeholders, with a ‘sectoral’ approach focusing on the preparation of a number of legal measures addressing the conditions of entry and residence of specifijic categories of migrant workers.143 While a Directive on the admission and residence of highly qualifijied third-country nationals (“Blue Card” Directive) was already been adopted in May 2009,144 the proposed Directives on the provision of a single permit (for work and residence) as well as safeguarding a minimum level of rights for less qualifijied or lower-skilled third-country nationals,145 seasonal mi142

These instruments, however, do not apply to all categories of migrant workers. Both the Migration for Employment Convention (n 19) and the Migrant Workers Convention (n 19) – in Art 11 – exclude frontier workers, artistes and members of liberal professions who have entered the country on a short-term basis, and seafarers who are protected under other ILO standards and in particular the ILO Convention C186: Maritime Labour Convention (94th Conference Session Geneva 7 February 2006), which aims to consolidate in one document the myriad of earlier standards relating to maritime labour. The Migrant Workers Convention also does not apply to persons coming to a country for the purposes of training and education as well as employees of organizations or undertakings operating within the country who have been admitted temporarily at the request of their employer to perform specific duties or assignments for a limited and defined period of time and who are required to leave upon completion of their duties or assignments. The ICRMW (n 26), however, encompasses frontier workers, certain categories of seafarers and specified-employment workers, which are defined in a similar way to the category referred to above and excluded under ILO Migrant Workers Convention (n 19) Arts 2(2)(a), (c) and (g)). But Art 3 explicitly excludes international and government officials; state employees sent abroad to participate in development or cooperation programmes; investors; refugees and stateless persons; students and trainees; and seafarers on an offshore installation who have not been admitted to take up residence and engage in a remunerated activity in the State of employment.

143

European Commission, ‘Policy Plan on Legal Migration’ (Communication) COM (2005) 669 final, 5–8.

144 Council Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment [2009] OJ L155/17. Most of this measure had to be transposed into national legislation and administrative practice by 19 June 2011, see Art 23. 145

See Directive 2011/98 [2011] OJ L 343/1.

Migration for Employment

grant workers146 and intra-corporate transferees147 underwent difffijicult negotiations in the Council of Ministers and the European Parliament.148 Moreover, the texts also reveal some lower levels of protection for these groups of third-country national migrant workers, thus reflecting to a certain degree the approach taken at the national level in many Member States. In particular, the fragmentation of the equal treatment principle between third-country nationals and EU nationals – as well as between the diffferent categories of third-country nationals in such areas as working conditions and social security – is a concern in the light of the international human rights and labour standards providing for a higher degree of protection.149 None of these adopted measures, however, are applicable to third-country na-

146 See Directive 2014/36 [2014] OJ L 94/35. 147

See Directive 2014/66 [2014] OJ L 157/1.

148 The scale of the difficulties is apparent from the time between the proposals (COM (2007) 638 final; COM (2010) 379 final and COM (2010) 378 final respectively) and the adoption of the final measures in 2011 (single permit) and 2014 (seasonal migrant workers and intracorporate transferees). 149

There are also doubts whether pertinent international standards were taken into consideration in the design of the proposed directives. For example, the Commission’s impact assessment elaborated as background to the proposed Directive on seasonal workers does not include any reference to pertinent International Labour Standards, a number of which, as noted above, have been ratified and are binding on EU Member States, see Commission, ‘Proposal for a directive of the European Parliament and of the Council on the conditions of entry and residence of third-country nationals for the purposes of seasonal employment’ COM (2010) 379 final.

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tional migrant workers in an irregular situation, although some safeguards in the expulsion/return process, including in detention, are provided for in the Returns Directive,150 and such migrant workers may also bring complaints against employers for outstanding unpaid wages, with the assistance of trade unions or other associations, under the Directive on employer sanctions.151 There are clear signs, however, that considerably more importance is now being attached to addressing the ‘rights defijicit’ in the EU. First, the entry into force of the Lisbon Treaty on 1 December 2009 has given legally binding force to the EU Charter of Fundamental Rights, which applies to EU institutions and Member States when they are implementing EU law,152 and which generally does not distinguish between persons on the grounds of nationality or immigration status. However, there are exceptions in relation to migrant workers in an irregular situation which are difffijicult to justify in the light of international human rights and labour standards. For example, the right to ‘working conditions equivalent to those of citizens of the Union’ is only affforded to ‘nationals of third countries who are authorized to work in the territories of the Member States’.153 Similarly, only those persons ‘residing and moving legally’ within the EU are ‘entitled to social benefijits and social advantages in accordance with Union law and national laws and practices’.154 Second, as a result of the Lisbon Treaty’s entry into force, the EU has also committed itself to ratifying the ECHR.155 Third, with regard to asylum and immigration matters, the legislative role of the European Parliament in the decision-making process, including in the fijield of legal migration, is now complete,156 and, fourth, the competence to refer cases in this fijield to the European Court of Justice, which oversees the uniform applica150

Directive 2008/115/EC of the European Parliament and the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals [2008] OJ L348/98, Arts 12–17.

151

Directive 2009/52/EC of the European Parliament and the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals [2009] OJ L168/24, Arts 6 and 13.

152

Charter Art 51(1).

153

Charter Art 15(3).

154

Charter Art 34(2).

155

TEU Art 6(2).

156

The ordinary EU legislative process (co-decision of the Council and European Parliament) has been incrementally applied to asylum and migration matters. Before the entry into force of the Lisbon Treaty, the European Parliament had only a consultative role in the adoption of measures on legal migration, but this has now changed.

Migration for Employment

tion of EU law, has been extended to all courts in Member States and not just to fijinal courts of appeal. The potentially positive role of the Court of Justice in protecting the rights of third-country nationals was recently highlighted in two cases concerning the detention of migrants in irregular status.157 Interestingly, these judgments have both been made in respect of the application of the EU Returns Directive,158 the adoption of which gave rise to considerable controversy.159 VII.

The Role of ‘Soft Law’ and Policy

Outside the Americas and Europe, there have been fewer legal developments at the regional level relating to the protection of the human rights of migrant workers and their families, although it is worth drawing attention to a number of important ‘soft law’ and related policy activities that have taken place under the auspices of burgeoning regional integration processes. The human rights architecture of the African Union (AU) has been complemented by a holistic policy document on migration – The Migration Policy Framework for Africa – which attaches particular importance to labour migration and the protection of the human rights of migrants.160 With regard to labour migration, this document calls for a regulatory approach that is regular, transparent and comprehensive, and notes the positive impact such an approach may have on countries of origin and destination as well as migrant workers and their families. Labour migration is a current and historical reality in Africa impacting directly on the economies and societies of African States in important ways. Establishing regular, transparent and comprehensive labour migration policies, legislation and structures at the national and regional levels can result in signifijicant benefijits for States of origin and destination. For States of origin, for example, remittances, and skills and technology transfers can assist with overall development objectives. For 157

Case C-357/09 Saïd Shamilovich Kadzoev v Direktsia Migratsia pri Ministerstvo na vatreshnite raboti [2009] ECR I-11189; Case C-61/11 PPU El Dridi [2011] ECRI-3015.

158 159

Directive 2008/115/EC (n 152). For a critical assessment of the implications of this measure for the human rights of migrants, see A Baldaccini, ‘The EU Directive on Return: Principles and Protests’ (2009) 28(4) RSQ 114.

160 African Union Executive Council, ‘The Migration Policy Framework for Africa’ (2006) AU Doc EX.CL/276 (IX) accessed 31 March 2012.

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States of destination, labour migration may satisfy important labour market needs. Labour migration policies and legislation that incorporate appropriate labour standards also benefijit labour migrants, members of their families, and can have a positive impact on society generally.161 The recommended strategies of the Migration Policy Framework for Africa include: the incorporation of provisions of the ILO Migration for Employment Convention and the ILO Migrant Workers Convention into national legislation; promotion of greater participation of social partners and pertinent civil society organizations in the development and implementation of labour migration policies; promotion of respect for, and protection of, the rights of migrant workers including combating discrimination and xenophobia; and incorporation of mechanisms that monitor the provision of decent work for migrants and enable them to access legal provisions for social protection.162 As far as the human rights of migrants are concerned, the Policy Framework underscores: Ensuring the efffective protection of the human rights of migrants is a fundamental component of comprehensive and balanced migration management systems. Historically, migrants have often been deprived of their rights and subjected to discriminatory and racist actions and policies including exploitation, mass expulsion, persecution and other abuses. Safeguarding the human rights of migrants implies the efffective application of norms enshrined in human rights instruments of general applicability as well as the ratifijication and enforcement of instruments specifijically relevant to the treatment of migrants.163

As in the fijield of labour migration, recommended strategies here include inter alia: reinforcing national policies and legal frameworks with ratifijication and implementation of a number of core international human rights instruments, relevant regional instruments –including the African Charter on Human and Peoples’ Rights– as well as the ILO Migration for Employment Convention and the ILO Migrant Workers Convention and the ICRMW; ensuring that migrants who are detained by public authorities are treated humanely and fairly regardless of their immigration status, and are affforded all applicable legal protections; access for all migrants, and particularly

161

ibid 7.

162

ibid 8.

163

ibid 24.

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migrants in irregular status, to basic health care; and with regard to integration ensuring equal treatment between migrants and nationals.164 While there is no legally binding instrument in Asia protecting human rights generally, there is some prospect that a legally binding convention protecting the rights of migrant workers in Southeast Asia may be realized in the near future. In January 2007, the Heads of State and Government of the Association of Southeast Asian Nations (ASEAN) adopted a Declaration on the Protection and Promotion of the Rights of Migrant Workers, which includes the political commitment to fijinalize a legally binding instrument in this fijield.165 A committee to oversee the implementation of the Declaration, including realization of the commitment on development of a legally binding instrument, has since been established.166 Although this may not be surprising in the context of a region where labour migration features prominently on the economic and social landscape,167 it is a notable development given the absence of an Asian human rights instrument 168 and the fact that international human 164 ibid 25, 26 and 27. 165

ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers (adopted 13 January 2007) para 22.

166 ASEAN Committee on the Implementation of the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers (ACMW). The ACMW’s work plan identifies three tracks along the lines of the Declaration, namely: (i) protection of migrant workers against exploitation, discrimination and violence; (ii) labour migration governance; and (iii) the fight against trafficking in persons – as well as an additional track concerned with the development of a legally binding instrument. The work plan is available at accessed 25 August 2014. 167

According to the Population Division of the UN Department of Economic and Social Affairs (DESA), the estimated number of international migrants in Southeast Asia in 2010 amounted to 6.7 million. The three largest migrant-hosting countries were Malaysia (approximately 2.4 million migrants), Singapore (1.97 million) and Thailand (1.16 million), see UNDESA (n 7).

168

However, in July 2009, the ASEAN summit also inaugurated the ASEAN Intergovernmental Commission on Human Rights, the purposes of which are inter alia to ‘promote and protect human rights and fundamental freedoms of the peoples of ASEAN’ and ‘to uphold international human rights standards as prescribed by the Universal Declaration of Human Rights, the Vienna Declaration and Programme of Action, and international human rights instruments to which ASEAN Member States are parties’, see ASEAN, Terms of Reference of the ASEAN Intergovernmental Commission on Human Rights (ASEAN 2009) paras 1.1 and 1.6. For more information on the Commission and related documents, see

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rights and labour standards have generally been rather poorly ratifijied by countries in this region. In addition to the applicable legally binding instruments, discussed in Section VI above, the Council of Europe is also an important source of ‘soft law’ standards on the human rights of migrants, including migrant workers, which is due in part to national parliamentarians who participate in its Parliamentary Assembly. This body has recently adopted recommendations and resolutions on such politically sensitive topics as the human rights of migrants in irregular status,169 mixed migration flows in Southern Europe,170 and the detention of asylum-seekers and irregular migrants.171 The recommendations are considered by the Council of Europe’s political arm, the Committee of Ministers, which itself has adopted a number of important standards, including outlining safeguards in the context of forced return.172 The treatment of migrants and migrants generally in Council of Europe Member States has also attracted the attention of the Council of Europe’s Commissioner for Human Rights, who has made statements expressing concern regarding the treatment of migrants during country visits and published issue papers on the human rights of migrants in generally

accessed 25 August 2014. 169 CoE Parliamentary Assembly, Resolution 1509 (2006) on Human Rights of Irregular Migrants, accessed 25 August 2014; CoE Parliamentary Assembly, Recommendation 1755 (2006) on Human Rights of Irregular Migrants accessed 25 August 2014. 170

CoE Parliamentary Assembly, Resolution 1637 (2008) on Europe’s Boat-people: Mixed Migration Flows by Sea into Southern Europe accessed 25 August 2014; CoE Parliamentary Assembly, Recommendation 1850 (2008) on Europe’s Boat-people: Mixed Migration Flows by Sea into Southern Europe accessed 25 August 2014.

171

CoE Parliamentary Assembly, Resolution 1707 (2010) on Detention of Asylum Seekers and Irregular migrants in Europe, accessed 25 August 2014; CoE Parliamentary Assembly, Recommendation 1900 (2010) on Detention of Asylum Seekers and Irregular Migrants in Europe accessed 25 August 2014.

172

CoE Committee of Ministers, ‘Twenty Guidelines on Forced Return’ (4 May 2005) accessed 25 August 2014.

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irregular status and the criminalization of migration.173 However, these constructive activities to promote the protection of all migrants, including migrant workers, and irrespective of their immigration status, should also be viewed in the context of the political decision at the end of 2010 to suspend the work of the Council of Europe’s European Committee on Migration (CDMG). The CDMG was the only intergovernmental body on the pan-European level – which also included the participation of international organizations and NGOs – with a broad mandate to develop European cooperation on migration, the situation and social integration of populations of migrant origin and refugees, and community relations.174 The conclusions of high-level international conferences may also have a ‘soft law’ value. A signifijicant event in this regard of particular relevance to equality of treatment for migrant workers and their protection from discrimination was the 2001 UN World Conference Against Racism, Racial Discrimination, Xenophobia and Related Tolerance held in Durban, South Africa. The Conference’s Declaration and Programme of Action included forty-fijive paragraphs on migrants,175 with a number of specifijic references to migrant workers, such as the Declaration’s reafffijirmation of the necessity of eliminating racial discrimination against migrant workers with respect to employment, social services, including education and health, and access to justice.176 The Programme of Action calls upon States to ‘design or reinforce, promote and implement efffective legislative and administrative policies, as well as other preventive measures, against the serious situation experienced by certain groups of workers, including migrant workers, who are victims of racism, racial discrimination, xenophobia and related intolerance’.177 Moreover, with a view to underscoring the particularly difffijicult situation of migrant women in certain employment sectors, the Programme of Action underlines that ‘special attention should be given

173

See respectively CoE Issue Paper, ‘The Human Rights of Irregular Migrants in Europe’ (17 December 2007) CommDH/IssuePaper(2007)1 accessed 25 August 2014; CoE Issue Paper, ‘Criminalisation of Migration in Europe: Human Rights Implications’ (4 February 2010) CommDH/IssuePaper(2010)1 accessed 25 August 2014.

174

See European Committee on Migration, Mission, ‘Terms of Reference’, available at

175

OHCHR, ‘Report of the World Conference Against Racism, Racial Discrimination, Xeno-

accessed 25 August 2014. phobia and Related Intolerance’ (25 January 2002) UN Doc A/CONF.189/12. 176

ibid para 51.

177

ibid para 67 (emphasis added).

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to protecting people engaged in domestic work and trafffijicked persons’,178 and also urges States to consider signing and ratifying the ILO Migration for Employment Convention and the ILO Migrant Workers Convention, and the ICRMW.179 The ‘soft law’ discussed above largely refers to intergovernmental initiatives, although it should be recalled that other actors or stakeholders in international labour migration can also play a central role in the development of non-binding standards. The ILO Multilateral Framework on Labour Migration,180 discussed in some detail earlier, was drawn up by ILO’s tripartite constituents of governments, employers’ and workers’ organizations, as indeed are all ILO Conventions and Recommendations, including the four instruments specifijically protecting migrant workers. In principle, such documents should best reflect labour migration and workplace realities given that they have been drawn up with the participation of the principal stakeholders, although their formulation and adoption may be viewed by some actors as challenging assumptions about State sovereignty and the extent of the role that certain government ministries and/or agencies should play in the regulation of labour migration. Lastly, initiatives on the part of civil society groups can also play a role in the development of ‘soft law’.181 VIII.

Intergovernmental Processes on Migration for Employment

Migration for employment and the rights of migrant workers – and the human rights of migrants generally – are increasingly topics of discussion in global and regional intergovernmental processes on migration. While these processes are regarded as informal and non-binding,182 it is important not to forget that the binding standards specifijically protecting migrant workers discussed earlier also contain obligations on States parties to cooperate with one another, particularly with regard to the pre-

178

ibid

179

ibid paras 78(b), 78(i), 78(k).

180 International Labour Organisation (n 77). 181

For example, see the draft ‘International Migrants Bill of Rights’ (2010) 24(3/4) Georgetown Immigration LJ 399, which is the product of a student-led initiative involving a number of universities.

182

See generally M Klein Solomon, ‘International Migration Management Through InterState Consultation Mechanisms’ (2005) Un Doc UN/POP/MIG/2005/13.

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vention of abuses in labour migration, and to ensure that it occurs under sound, equitable, humane and lawful conditions.183 Migration for employment and the human rights of migrants were addressed under a global intergovernmental process on migration known as the Berne Initiative, which was set up under the auspices of the Swiss Government and for which the International Organisation for Migration (IOM) provided the Secretariat. The Berne Initiative had as its goal obtaining ‘better management of migration at the national, regional and global levels through enhanced cooperation between states’.184 The International Agenda for Migration Management (IAMM)185 was the most important outcome of the Berne Initiative. The IAMM constitutes ‘a nonbinding reference system and policy framework of migration management at the international level’,186 and sets out a number of common understandings and efffective practices for a planned, balanced, and comprehensive approach to management of migration, including labour migration and the human rights of migrants. While the IAMM represents common views and perspectives on migration of offfijicials and experts from all regions of the world, it remains a rather unique document because it has not been adopted on the basis of negotiations between states, and is therefore clearly non-binding. It has been designed as a practical and balanced tool for administrators to assist them in the planning and development of coherent migration policies. In identifying twenty common understandings for the management of international migration on which the IAMM is based, two are particularly relevant to the human rights of migrants: recognizing the universality of human rights standards and the importance of the compliance with these principles for efffective migration management.187 With reference to international migration for employment, the IAMM identifijies, as a common understanding, that ‘providing adequate and regular

183

For example, see Part I of the Migrant Workers Convention (n 19) and Part VI of ICRMW (n 26)

184

Klein Solomon (n 183) 14.

185

International Organization for Migration and Swiss Federal Office for Migration, International Agenda for Migration Management: Common Understandings and Effective Practices for a Planned, Balanced, and Comprehensive Approach to the Management Of Migration (IOM 2005).

186 Klein Solomon (n 183) 5. 187

International Organization for Migration (n 189) 23-24 (Common Understandings 4 and 8).

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channels for migration is an essential element of a comprehensive approach to migration management’,188 and a separate chapter is also devoted to this topic.189 There are currently two specifijic global intergovernmental processes where international labour migration and the human rights of all migrants, including migrant workers, are particularly relevant. The Global Forum on Migration and Development (GFMD)190 is a states-led process conducted outside of the UN system which came into being following the UN General Assembly’s High-Level Dialogue on International Migration and Development in September 2006.191 It retains links to the UN via the Secretary General’s Special Representative on Migration, and has held four annual meetings to date, in Brussels, Manila, Athens and Puerto Vallarta respectively.192 Given that, as underscored earlier, a large part of international migration today is for the purpose of employment, the migration and development discourse is inextricably bound up with the world of work, and this is very evident from the themes that have been discussed in GFMD meetings to date. The GFMD has attracted criticism from a number of civil society groups for not giving sufffijicient attention to migrants’ rights issues. At the second GFMD meeting in Manila on 27–30 October 2008, however, one roundtable was specifijically devoted to ‘Protecting the rights of migrants – a shared responsibility’, while ‘Inclusion, protection and acceptance of migrants in society – linking human rights and migrant empowerment for development’ was the topic of a roundtable at the third GFMD meeting in Athens on 2–5 November 2009. Another ongoing intergovernmental process with global reach is the International Dialogue on Migration (IDM), conducted under the auspices of the

188 ibid 24 (Common Understanding 13). 189 ibid 40-42 (ch 5). 190 For the GFMD website, see accessed 25 August 2014. 191

UNGA, ‘High-Level Dialogue on International Migration and Development, UN General Assembly’ (New York, 14–15 September 2006). For all the documents connected with the High-Level Dialogue, see the website of the Population Division of UN DESA at accessed 25 August 2014. For a summary of the meeting, see UNGA, ‘Summary of the High-level Dialogue on International Migration and Development: Note by the President of the General Assembly’ (13 October 2006) UN Doc A/61/515.

192

For more information on the most recent GFMD meetings, see accessed 25 August 2014.

Migration for Employment

International Organization for Migration (IOM), where IOM Member States and observers193 gather in Geneva to discuss specifijic migration themes, in accordance with Article 1(e) of IOM’s Constitution, which stipulates that one of IOM’s purposes and functions is ‘to provide a forum to States as well as international and other organizations for the exchange of views and experiences’.194 The two activities of the IDM are annual sessions taking place during the IOM Council and the convening of two or three intersessional workshops each year. These sessions and workshops are structured around specifijic themes, although the latter focus more on developing linkages between migration and other fijields. In 2007, the guiding theme of the IDM was ‘Migration Management in the Evolving Global Economy’, which largely focused on labour migration issues. The two workshops held discussed free movement of persons in regional integration processes and how labour mobility at the global level could become a catalyst for development. In 2009, the overarching IDM theme was ‘Human Rights and Migration: Working Together for Safe, Dignifijied and Secure Migration’; workshops were held on trafffijicking in persons and exploitation of migrants, and efffective respect for the human rights of migrants.195 Two intergovernmental regional consultative processes (RCPs) –both facilitated by IOM– the Colombo Process and the related Abu Dhabi Dialogue,196 exclusively address labour migration in Asia and the Gulf States devoting specifijic attention to the protection, welfare and well-being of migrant workers. The former RCP began in Colombo, Sri Lanka in 2003 on the basis of cooperation among ten countries,197 and continued in Manila, the Philippines in 2004. At the Third Ministerial Consultations, 193

As of August 2014, there are 156 IOM Member States and ten Observer States. NGOs are also among the Observers, including prominent international human rights NGOs such as Amnesty International and Human Rights Watch.

194

See Art 1(e) of the Constitution of the International Organization for Migration accessed 25 August 2014.

195

See IOM’s IDM web pages at accessed 25 August 2014.

196 The full names of these two processes are respectively the Regional Consultative Process on the Management of Overseas Employment and Contractual Labour for Countries of Origin in Asia, and the Ministerial Consultation on Overseas Employment and Contractual Labour for Countries of Origin and Destination in Asia. Information on both RCPs is available at accessed 25 August 2014. 197

Bangladesh, China, India, Indonesia, Nepal, Pakistan, the Philippines, Sri Lanka, Thailand, and Vietnam. Afghanistan, which participated as an observer in 2004, became a member of the group in 2005. For more background information, see the Colombo Process website at accessed 25 August 2014.

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held in Bali, Indonesia in September 2005, destination countries for migrant labour from this region participated as observers for the fijirst time.198 The Fourth Ministerial Consultations were held in Dhaka, Bangladesh in April 2011. Protection of their workers abroad is one of the principal objectives for countries of origin when devising overseas employment policies, and good collaboration and cooperation in this area among countries of origin (which are frequently in competition with each other) can lead to the adoption of better policies and practices as well as their effective implementation.199 The theme of the Fourth Ministerial Consultations was ‘Migration with Dignity’ and the Declaration adopted contains recommendations relating to four thematic areas: promoting rights, welfare and dignity; services and capacity building; emergency response and emerging issues; and enhanced dialogue and cooperation. With regard to the fijirst thematic area, recommendations include elimination of ‘all forms of occupational and socio-cultural discriminations against migrant workers’; promotion of ‘Decent Work for migrant workers, including in lowskill and low-wage sectors, and to design employment contracts based on existing good practice models’; and efffectively addressing ‘the specifijic needs and concerns of vulnerable groups of migrant workers, especially women, domestic workers, lowskilled and low-wage workers’.200 In January 2008, Colombo Process countries met in Abu Dhabi, in the United Arab Emirates (UAE), with Gulf Cooperation Council (GGC) States and Malaysia, Singapore, and Yemen. The ‘Abu Dhabi Dialogue’ result

198

Bahrain, Italy, Kuwait, Malaysia, Qatar, Republic of Korea, Saudi Arabia and the United Arab Emirates (UAE). In addition to IOM, the following regional and international organizations also participate as observers in the process: ASEAN, Asian Development Bank (ADB), Department for International Development, UK (DFID), European Commission, Gulf Cooperation Council (GCC), ILO, UN Women and the World Bank.

199 However, individual countries of origin acting alone can also do much to protect their workers abroad. One model approach often cited in this regard is that of the Philippines. See Dovelyn R Agunias and Neil G Ruiz, Protecting Overseas Workers: Lessons and Cautions from the Philippines (Migration Policy Institute 2007), available at accessed 25 August 2014; T D Achacoso ‘The Role of the State in Managing an Overseas Employment Programme’ (2003, unpublished paper, on file with the author). Achacoso is the former Administrator of the Philippine Overseas Employment Administration (POEA). 200 (Draft) Dhaka Declaration of Colombo Process Member Countries (Dhaka, 20–21 April 2011) accessed 25 August 2014.

Migration for Employment

ed in the adoption of a Declaration, which provides a basis for cooperative action, to be undertaken with the support of IOM. Four specifijic areas of partnership were identifijied. For example, the third partnership focuses specifijically on rights-related or protection issues, namely: “Preventing illegal recruitment practices and promoting welfare and protection measures for contractual workers, supportive of their well being and preventing their exploitation at origin and destination.”201 While there is no other RCP on migration devoted exclusively to migration for employment, two RCPs in the Americas, namely the Regional Conference on Migration (RCM) (‘Puebla Process’) and the South American Conference on Migration (SACM) (‘Lima Process’),202 have a strong record of examining labour migration and human rights-related questions. Moreover, a clear recent trend is the greater consideration of labour migration, human rights and integration questions by those RCPs which previously focused almost wholly on asylum and the prevention of irregular migration.203

201

The remaining partnerships focus on enhancing the knowledge in the areas of labour market trends, skills profiles, temporary contractual workers and remittances policies and flows, and their interplay with development in the region; building capacity for effective matching of labour demand and supply; and developing a framework for a comprehensive approach to managing the entire cycle of temporary contractual mobility that fosters the mutual interests of countries of origin and destination.

202 For more details on these two RCPs, see the Regional Conference on Migration website at , and the Organizacion Internacional Para Las Migraciones website at (in Spanish only,); see also accessed 25 August 2014). 203 See eg the Intergovernmental Consultations on Migration, Asylum and Refugees (IGC), which in recent years has begun to focus more on labour migration and integration. According to its webpage , the IGC describes itself as ‘an informal, non-decision making forum for intergovernmental information exchange and policy debate on issues of relevance to the management of international migratory flows’. The IGC brings together seventeen participating States (Australia, Belgium, Canada, Denmark, Finland, France, Germany, Greece, Ireland, Netherlands, New Zealand, Norway, Spain, Sweden, Switzerland, the UK and the US), and the UNHCR, IOM and the European Commission as observers.

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IX.

Conclusion

The tendency among migration policymakers today is to downplay the role of international law from the sphere of migration governance204 and to present migration governance as essentially a product of global and regional intergovernmental consultative processes. However, this chapter has demonstrated that international migration governance is clearly underpinned by the rule of law, which manifests itself in a broad range of human rights and labour standards applicable to all human beings irrespective of nationality and immigration status. To argue otherwise would be to deny the legacy of law-making in this area as well as the success of the free movement components of regional integration systems, particularly in the European Union, which have been and continue to be built on a fijirm foundation of the rule of law. The international community has also seen it fijit to formulate specific standards, both those that are ‘legally binding’ and of a ‘soft law’ nature, to protect migrant workers and their families precisely because they are considered as a category of human beings particularly vulnerable to exploitation in the migration process and the world of work. These standards are all the more important today given the ‘reshaping’ of the world of work in the current wave of globalisation resulting in ‘decent work defijicits’ in terms of unemployment and underemployment; increasing temporary and precarious employment; the growth in the informal economy; and an absence of social protection. The challenges lie in their acceptance by states and in their adequate implementation.

204 This tendency can also be detected in recent academic and policy-related literature on migration governance, see Alexander Betts (ed), Global Migration Governance (OUP 2011); International Organization for Migration, World Migration Report 2010: The Future of Migration – Building Capacities for Change (IOM 2010) ch 8.

4

Access to Social Protection for Non-Citizen Migrants: The Position of Irregular Immigrants Gijsbert Vonk*

I.

Introduction

The purpose of this short contribution is to describe how international migration law afffects the question of access to social protection for non-citizen migrants and in particular how it afffects the position of immigrants with irregular residence status. For this reason, fijirst I will raise the general question to what extent social protection for non-citizen migrants is part of (international) migration law (Section II). Secondly, the question is raised how migration law draws the line between those who are included and those who are excluded from social protection. As it appears, this line depends inter alia on the immigration status of the migrant; with some exceptions irregular immigrants enjoy no protection, while asylum seekers are merely offfered minimum reception conditions (Section III). Thirdly, I will describe how the exclusion of irregular immigrants from social protection is increasingly challenged on grounds of human rights arguments (Section IV). Finally, in the last paragraph I will dwell a little further on this theme: if it is true that large numbers of immigrants are denied access to formal state social security arrangements on the basis of their insufffijicient residence status, what alternative forms of social protection might be developed that are not necessarily at odds with the interests and policies of states? (Section V). For the purposes of this article I have employed a broad defijinition of irregular immigrants. It includes all non-citizen migrants who have not been given a positive decision as to their right to stay or reside by the authorities of the host state. This means that not only groups without any status and those who must leave imme*

Gijsbert Vonk is Professor of Social Security Law at the University of Groningen

Sir Richard Plender (ed.), Issues in International Migration Law Copyright 2015 Koninklijke Brill NV. Printed in The Netherlands. ISBN 978-90-04-20851-3 pp. 81-90

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diately, but also other categories such a immigrants who are awaiting the outcome of a request for a residence permit or overstayers, are included in the defijinition. As for the term social protection: this refers to a wide range of public welfare services, including social insurance, social assistance, health and housing. II.

International Migration Law and Social Protection: General Remarks

To what extent is the subject of social protection for non-citizen migrants part of migration law? This is a question of defijinition. I would apply a strictly formal criterion: if migration law is relevant for the legal position of migrants in social benefijit schemes, then it is a part of migration law. Otherwise, it is not. When applying this test we should fijirst of all observe there are many relevant rules outside the domain of migration law. First of all, there is national social security and welfare law, which regulates the personal and territorial scope of application of the various benefijit schemes involved. With regard to social insurance for example, work based insurance schemes often refer to the place where the employment is carried out: lex locu laboris; residence based schemes refer to the place where a person lives; sometimes we fijind provisions which allow for the export of benefijits for persons moving abroad. Then, in order to overcome certain disadvantages which follow from migration, states conclude international agreements on the co-ordination of social security systems. The agreements apply primarily to social insurance schemes (in the widest sense of the word) and are in fact as old as social insurance itself. The fijirst social insurance agreement was concluded in 1904 between France and Italy and since than a network of bilateral and multilateral treaties has come into being, covering all branches of social insurance and including a number of techniques which are specially designed to protect the rights of migrant workers. This network of social security treaties extends throughout the entire world. The treaties provide inter alia for equality of treatment on grounds of nationality, the exportability of pension rights and the accumulation of insurance periods that have been built up in diffferent countries. Co-ordination agreements on social security are highly technical. Within the EU they have been replaced by a regulation, now numbered Regulation 883/2004.1 1

Regulation (EC) 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems [2004] OJ L166. This regulation is replaced by Regulation (EC) 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004

Access to Social Protection for Non-Citizen Migrants: The Position of Irregular Immigrants

This is the complex regulation, which replaced an even more notoriously complicated version.2 I know a Spanish expert who referred to this body of law as obscure, cabalistic, puzzling and enigmatic.3 He was right, but fortunately this should not bother us too much. This type of international instruments is outside international migration law. It is diffferent family. It is international social security law and indeed, recognized as such. But this is not the end of the story. Apart from typical social security instruments, there are international migration law instruments relevant for social protection rights. In fact, historically these instruments are older than social security co-ordination agreements. They are rooted in the exchange agreements that were concluded in the second half of the 19th century between some European states to regulate the position of paupers who were in the hands of the poor law authorities. 4 The prevailing opinion in Europe was that not the host-state but the state of origin was responsible for offfering support to the needy. For that reason reciprocal agreements were concluded with the aim of bringing poor law recipients back to their countries of origin. Thereby the host states would promise to continue to provide relief to immigrants from the other country until they were safely placed in the hands of the domestic authorities.5 Subsequently such arrangements became part of wider settlement agreements, such as the Dutch-German settlement agreement of 1904. In fact, the European Convention on Social and Medical Assistance of 1953 can also be seen as a successor of these type of arrangements. Nowadays, all major international migration conventions contain at least a provision on equality of treatment for migrants in the fijield of social security and social assistance for migrant workers: the UN Conventions on the Refugees and Stateless [2009] OJ L284/1, which includes administrative procedures necessary for applying the mother regulation. 2

Regulation 883/2004 was preceded by Council Regulation (EC) 1408/71of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community [1997] OJ L28/1, which was in its turn preceded by Regulation 3/58 (all frequently amended).

3

Carlos Garcia de Cortazar, ‘Co-ordination and Enlargement’ in Yves Jorens and Bernd Schulte (eds), Coordination of Social Security Schemes in Connection with the Accession of Central and Eastern European States (Die Keure 1999) 81-116, 85.

4

The oldest agreements of this types that I am aware of is a treaty concluded between Bavaria and Saxony, dating back to 1833!

5

For a short description of this history, see Gijsbert J Vonk, De coördinatie van bestaansminimumuitkeringen in de Europese Gemeenschap (Kluwer 1991) 3-5.

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Persons, the ILO Migration for Employment Convention, the European Convention on the Legal Status of Migrant Workers and, of course, the modern 1990 International Convention on the Protection of Rights of all Migrant Workers Rights. These conventions may be very relevant as their personal and material scope of application is wider than the traditional social security instruments, which exclude social assistance, housing and other types of welfare services for those who are not economically active. Exactly the same situation has always applied in the European Community where migration regulation No. 1612/68 – in particular Article 7(2) Regulation No. 1612/68, prescribing equality of treatment in the area of social and fijiscal advantages – played a major role next to social security regulation No. 1408/71 (which excluded social assistance from its material scope of application).6 Nowadays, in the case law of the Court of Justice this role of Article 7(2) Regulation No. 1612/68 has been taken over by the very notion of European citizenship itself,7 another early brainchild of Richard Plender.8 III.

Migration Law and Social Protection: A Complex Relation

While international migration law is thus relevant for access to social protection for citizen migrants, it should furthermore not be overlooked that considerations of immigration policy increasingly afffect the development of the legal position of migrants in social protection schemes. When the immigration climate is favourable, for example in relation to highly skilled employees, states use social rights as a marketing strategy for promoting immigration. Conversely, when the immigration climate is unfavourable, i.e. when we do not want them to come, then the denial 6

Regulation 1408/71 (n 2) Art 4(4). The exclusion is maintained in Art 3(5) of present Regula-

7

cf Anne Pieter van der Mei, ‘European Union Citizenship, Freedom of Movement and

tion 883/2004. Social Assistance Benefits’ in Jos Berghman et al (eds), Social Security in Transition (Kluwer Law International 2002) 93-107. See also Kay Hailbronner, ‘Union Citizenship and Social Rights’ in: Jean-Yves Carlier and Elspeth Guild (eds), The Future of Free Movement of Persons in the EU (Bruylant 2006) 65-78. As matter of fact, the provisions of Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community [1968] OJ L257, Art 7(2) still survives in the form of Regulation (EU) 492/2011 of the European Parliament and of The Council of 5 April 2011 on freedom of movement for workers within the Union OJ L141/1, Art 7(2). 8

Richard Plender, ‘An Incipient Form of European Citizenship’ in: Francis G Jacobs (ed), European Law and the Individual (North Holland 1976).

Access to Social Protection for Non-Citizen Migrants: The Position of Irregular Immigrants

of social protection rights serves as a deterrent.9 The gradual deterioration of the reception conditions for third country nationals in many European states, notably Austria, Denmark and the Netherlands serves as an example. In law the preference of migration law over social security status, takes the shape of the legal residence test. This test is prolifijic both in national law as in international law. The exclusion of illegal immigrants goes the furthest in the Netherlands, where as a consequence of the so-called ‘linkage act’ of 1998 this category is now fully excluded from all public services, including social insurance benefijits (but excluding legal aid, education under the age of 16 and medical aid in emergency situations). Other countries move quickly to follow this example, if not so radical, then at least on a more incremental basis. The legal residence test functions as a double-edged sword. On the one hand legal provisions support the inclusion of migrants in the welfare state. On the other hand, the conditions under which guarantees are granted may equally operate against the inclusion for certain groups, in casu irregular immigrants and asylum seekers. Irregular migrants enjoy no equality of treatment whatsoever and very often have to cope without any form of protection. The same holds true for asylum seekers, but they at least enjoy minimum reception conditions on grounds of Directive 2003/9/EC. What is always so remarkable, is that the legal residence test which characterizes access to social protection for non citizen migrants in national law, is fully reflected in the protective clauses on equal treatment in international migration law. Thus, looking at the instruments I referred in paragraph 2 the following picture emerges. The European Convention on Social and Medical Assistance only provides equality of treatment to immigrants who are ‘lawfully present’. Articles 20 to 24 of the UN Convention on the Status of Refugees dealing with welfare rights are restricted to those who are ‘lawfully staying’. Article 1 of the European Convention on the Legal Status of Migrant Workers restricts the application of the Convention to ‘nationals of a Contracting Party who have been authorised to reside in the territory of another Contracting Party in order to take up paid employment’. Something similar applies for ILO Accommodation of Crews Convention. Only the 1990 UN International Convention on the Protection of Rights of all Migrant Workers Rights, seems to take a softer stance towards irregular immigrants, at least providing a right to medical assistance in emergency situations (Article 28), but typically this Convention has still not been ratifijied by a single Western or Arab state.

9

cf Gijsbert J Vonk, ‘Migration, Social Security and the Law, Some European Dilemmas’ in [2001] EJSS 315.

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The legitimizing efffect of the law with regard to the exclusion of asylum seekers and illegal immigrants is further enhanced by the effforts of European governments to actively promote the adoption of restrictive clauses in international legal instruments which are relevant for the social security protection of migrants. Thus, the new Euro-Mediterranean Association Agreement EC-Morocco signed in 1996 now reserves the equality of treatment in the fijield of social security to persons working and residing legally in the territories of the host countries.10 A similar restriction has been formulated in the recently adopted Charter of Fundamental rights of the European Union in Article 34(2) dealing with the right to social security for migrants who move within the territory of Europe.11 Such restrictions in important international instruments do little to improve the fate of irregular immigrants, but rather support the policies of exclusion. IV.

The Impact of Human Rights on the Exclusion of Non-Legal Residents from Basic Social Rights

The legal residence test in national social welfare law as reflected in international migration law, leaves irregular immigrants totally exposed to mishaps, risks and dangers of daily life. Hunger, destitution, homelessness, degradation, exploitation, fear, loss of dignity, in short: the whole array of Dickensian horrors expelled from our societies by the emergence of the welfare state, continues to threaten the lives of this category of men. The lacunae are a challenge for human rights, which take human dignity as their very starting point. To what extent do human rights afffect the exclusion of irregular immigrants from social protection? In fact the answer to this question is a contentious one. There are some, for example Ryszard Cholewinsky, who argue that international human rights contain an obligation for the state to provide social assistance to enable a migrant worker to live in dignity.12 Others maintain that such a general obliga-

10

Euro-Mediterranean Agreement [2000] OJ L70, Art 66 reads: “The provisions of this Chapter shall not apply to nationals of the parties residing or working illegally in the territory of their host countries”.

11

Charter Art 34(2): “Everyone residing and moving legally within the European Union is entitled to social security benefit, and social advantages in accordance with Community law and practices.”

12

Ryszard Cholewinsky, Irregular Migrants: Access to Minimum Social Rights (Council of Europe 2005) 46.

Access to Social Protection for Non-Citizen Migrants: The Position of Irregular Immigrants

tion under international law does not exist.13 For example in his recent extensive research on the position of irregular migrant workers in social security, Klaus Kapuy came to the conclusion that explicitly binding international legal obligations to protect irregular immigrants are far and few between, and not so much stemming from international human rights, but much rather from very specifijic EU-instruments, such as the EC return directive 2008/115 and the EC Directive 2004/81 on victims of human trafffijicking, which contain obligations to provide emergency medical treatment.14 The author does not rejoice in this conclusion,15 he simply deduces it from the state of positive law. In the meanwhile, I would like to add to this debate that even while the case at the core of the exclusion of irregular immigrants from social protection is left untouched by international human rights, there seems to be an increasing number of incidents nibbling at the fringes of this core, thereby sometimes taking out quite large chunks. Whether or not asylum seekers should be looked upon as an exception depends on one’s defijinition of irregular immigrant. In any case, while asylum seekers have no access to social protection under the International Convention on the Status of Refugees as they are not yet considered lawfully staying within the meaning of Article 23 this Convention, the European Union has adopted a directive on the reception of asylum seekers, Directive 2003/9/EC. What is important for us is that on 21 January 2011, in the case of M.S.S. against Belgium and Greece, the European Court of Human rights proclaimed the treatment of asylum seekers in Greece (or rather the lack of any treatment) constitutes a violation of Article 3 of the ECHR.16 This case is a true testimony to the growing impatience of international human rights authorities with rigid social exclusions. Similarly, six years earlier in 2005, in the Limbuela case, the British House of Lords came to the conclusion that it is illegal for the state to refuse any assistance and housing to asylum seekers, while at the same time prohibit-

13

cf Danny Pieters and Paul Schoukens, Explanatory Report on the Access to Social Protection for Illegal Labour Migrants (Council of Europe 2004).

14

Klaus Kapuy, The Social Security Position of Irregular Migrant Workers: New Insights from National Social Security Law and International Law (Intersentia 2011).

15

He rather argues that the position of irregular immigrants should not respond so much to the rationale of immigration policy, but should ideally follow the logic of social security itself.

16

M.S.S. v Belgium and Greece App no 30696/09 (ECtHR, 21 January 2011).

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ing them to work.17 The very fact that the host states have some responsibility for the stay of asylum seekers apparently is enough to justify a minimum care obligation. A similar obligation seems to develop for vulnerable categories of persons who are illegally residing in their host countries, notably children of irregular immigrants and pregnant women. Thus, last year in a complaint lodged by Defence for Children, the European Committee of Social Rights ruled that it was contrary to the European Charter for the Netherlands to refuse support to young children whose parents reside illegally in the country.18 It has been argued that the decision of the European Committee of Social Rights is not so important, because legally non binding. But the same no longer holds true for subsequent Netherlands court cases, directly or indirectly influenced by the decision of the European Committee of Social Rights. For example in 2010, the Court of Appeal in the Hague pronounced that the state commits tort when it sends an Angolan mother with four very young children out on the streets without any support, simply because it is inhumane to do so.19 This decision is legally binding. Finally, national and international case law allows for exceptions to the exclusion of illegal foreigners in cases of medical emergencies. There is an increasing number of national and European court decisions, in which in individual cases some forms of duties are formulated to offfer relief. Very often such decisions are human rights inspired and taken on grounds of the merits. The underlying current on which this case law is based, rather streams towards a general recognition of minimum social care responsibility for irregular immigrants than away from it. V.

Towards New International Standards for Irregular Immigrants

The last remark brings me to the last issue of this contribution. Is it feasible that the international migration law will take on board the growing body of national and international human rights case law dealing with the position of non-legal immigrants? Perhaps such standards should be adopted in a new separate international instrument. I realise straight away that suggesting such an instrument is highly controversial; states will hate it. On the other hand they have to gradually get to terms with the fact that the dichotomy between inclusion and exclusion along the 17

Secretary of State for the Home Department versus Wayoka Limbuela, c.s. [2004] EWCA Civ 540.

18

Defence for Children International v The Netherlands Complaint No 47/2008 (European Social Rights Committee, 20 October 2009).

19

Court of Appeal The Hague 27 July 2010, LJN BN2164.

Access to Social Protection for Non-Citizen Migrants: The Position of Irregular Immigrants

single line of the legality of residence cannot be upheld. However legitimate this exclusion may be, the consequences are unsatisfactory. First of all, even when illegal immigration is prohibited, this does not mean to say that irregular immigrants do not exist. Secondly, due to their weak legal status, irregular immigrants are easily subject to economic exploitation and degrading treatment. Thirdly, the presence of irregular immigrants often leads to tensions between local and central governments, the former having to bear the brunt of the formal exclusion from social security established by the latter. Finally, the situation with regard to the exclusion of irregular immigrants is often not as clear cut as it seems, as public authorities tend to condone or even fijinance non-governmental organisations in their efffort to help irregular immigrants, thus leading to unclear and seemingly contradictory government practices. What is needed is a new paradigm for the protection of irregular migrants that is not necessarily at odds with the policies and interests of national governments. The contents of this paradigm could be based upon three pillars. 1.

Codifying Human Rights Standards of Protection

The fijirst pillar is based upon a codifijication of the case law and opinions of national and international courts and supervisory bodies with regard to the position of irregular immigrants. As said, this case law may recognize minimum care obligations in the case of emergencies and for vulnerable groups. New standards could stipulate that states should at least accept that forms of aid must be available, not as a right but on grounds of discretionary powers of the central or local authorities. The use of these powers can be qualifijied in general terms with reference to for example medical aid, housing, shelter and food. Codifying modern case law on the protection of irregular immigrants requires careful international and comparative legal research. 2.

Respecting Civil Law and Private Initiatives

In line with the internationally recognized categorisation of human rights duties, i.e. between the duty to respect, to protect and to fulfijil, states should certain duties to respect civil law and private initiatives in the area of social protection of irregular immigrants. For example, states should refrain from creating obstacles for irregular migrants to set up mutual or private medical insurance schemes, they should not prohibit charitable organisations to come to the rescue of people in need, should not make it impossible for local authorities to work together with such charities, should make sure that irregular migrants can make use of the banking system and

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transport facilities, etc. In order for these standards to be developed, it is necessary to carry out empirical research into the most frequently occurring forms of civil law and private initiatives and governments rules and practices which may inhibit such initiatives. 3.

The Role of Repatriation Programmes

As it appears, within the framework of repatriation programmes complex structures have come into being which make it possible for irregular migrants and refused asylum seekers to go back to their home countries or third countries while receiving forms of fijinancial aid. The International Organisation for Migration is involved, as well as the European Commission and national ministries. In turn, these authorities work together with local NGOs that channel the aid to the migrants who co-operate with their expulsion. This aid mostly consists of lump sum payments. Such payments are made available to enable the returning migrants to re-integrate more easily in their countries of origin. These types of aid can be considered to be a new form of social protection which evolves out of the complex relation between the irregular migrant, the host state, the state of origin and international organisations. For this pillar to develop it is necessary to map out the current forms of aid that are payable within the framework of repatriation programmes, the institutional structure, the legal basis and method of fijinancing. In practice, even states themselves are ambiguous about this, for example by granting subsidies to charities who look after illegal immigrants or by providing aid at a local level, while prohibiting any care within the context of national schemes. Finally, the acceptance of minimum responsibilities towards the reception and voluntary repatriation of irregular immigrants might play a role in the joint governance of the problem of irregular immigration. As with the fijirst bilateral settlement agreements between European States, social clauses could be adopted in the readmission agreements that are concluded at the moment between the EU and third countries. Third countries then pledge to facilitate the repatriation of irregular immigrants and to provide social care for them, on the condition that Europe respects minimum duties and freedoms as long as the immigrants concerned stay within their jurisdiction.

5

Capricious Games of Snakes and Ladders: The Nexus of Migration and Integration in Light of Human Rights Norms Dora Kostakopoulou*

I.

Introduction

The ‘journey’ to admission, settlement and, eventually, citizenship in Western Europe has become tightly controlled by governmental authorities, ridden with hurdles and quite expensive in the new millennium. Reforms in several EU Member States, such as the Netherlands, the United Kingdom, Denmark, France, Austria, Germany, Luxembourg, Italy, Portugal, Greece, Cyprus, Lithuania, Slovakia, Czech Republic, Estonia, Latvia, Romania, the Flemish Community in Belgium and Ireland, require migrants to attend language tuition and civic orientation courses, intended to provide information about the history of a country, its legal system, culture, values and way of life, and to sit integration examinations in order to enter European countries, obtain temporary or permanent residence and to gain access to social benefijits. Integration programmes and tests have also migrated abroad; they have now become part of a pre-departure phase that commences in home countries for spouses seeking reunifijication with their loved ones in the Netherlands, Germany, France and, soon, in the United Kingdom.1 In the main, civic integration initiatives *

Dora Kostakopoulou is Professor of European Union Law, European Integration and Public Policy at University of Warwick Law School.

1

Christian Joppke, ‘Beyond National Models: Civic Integration Policies for Immigrants in Western Europe’ (2007) 30(1) Western European Politics 1; Amitai Etzioni, ‘Citizenship Tests: A Comparative Communitarian Perspective’ (2007) 78(3) The Political Quarterly 353; Elsbeth Guild, Kees Groenendijk and Sergio Carrera (eds), Illiberal Liberal States: Immigration, Citizenship and Integration in the EU (Ashgate 2009); Adrian Blackledge ‘As a Country we Expect: The Further Extension of Language Testing Regimes in the United Kingdom’

Sir Richard Plender (ed.), Issues in International Migration Law Copyright 2015 Koninklijke Brill NV. Printed in The Netherlands. ISBN 978-90-04-20851-3 pp. 91-110

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have been offfijicially justifijied on the basis of manifest diffferences together with defijiciencies inherent in migrant applicants and the need to enhance societal cohesion and adherence to the norms and values of host country. Political considerations, ideology, far right populist discourse and migration restriction hardly feature among the offfijicial justifijications. Yet, in reality citizenship and integration have become not only closely aligned to migration policy, but also subordinate to it.2 As social cohesion and acceptance of national norms and values become the main policy goals, certainly prevailing over non-discrimination and policies of social inclusion, migrants are now expected to take responsibility for their own integration, pay for it, prove their commitment to the host society and to ‘earn’ their entitlement to residence and citizenship. In short, they must take part in a state-led game of snakes and ladders, in which the fulfijilment of certain requirements earns them points and authorises their progression to the next level. By the same token, if they refuse to take part in, and successfully complete, integration programmes, their status and entitlement to social benefijits is afffected. Alongside every ladder marking the progression from one stage to the next and betterment in status, there exists a snake threatening not only to block progression but also to place people in the invidious position of being asked to leave the host country. The relation between fulfijilling expectations and sanctions is clearly reciprocal. By the same token, experiences of obstruction can easily follow opportunities –the long journey to citizenship can have many turns, and until the fijinal stage is reached, membership (2009) 6(1) Language Assessment Quarterly 6; Liav Orgad, ‘Illiberal Liberalism: Cultural Restrictions on Migration and Access to Citizenship in Europe’ (2009) 58(1) AJ Comp L 53; Sergio Carrera and Anja Wiesbrock, Civic Integration of Third Country Nationals: Nationalism versus Europeanisation in the Common EU Immigration Policy (Centre for European Policy Studies 2009); Gabrielle Hogan-Brun, Clare Mar-Molinero and Patrick Stevenson (eds), Discourses on Language and Integration: Critical Perspectives on Language Testing Regimes in Europe (John Benjamins 2009); Ricky van Oers, Eva Erboll and Dora Kostakopoulou (eds), A Re-definition of Belonging? Language and Integration Tests in Europe (Martinus Nijhoff 2010). See also the debate on integration tests at . See also Sue Wright (ed), ‘Citizenship Tests in a Post-National Era’, special issue of (2008) 10(1) International Journal on Multicultural Societies; Maarten P Vink and Gerard-Rene de Groot (eds), special issue of (2010) Journal of Ethnic and Migration Studies. 2

Ricky van Oers, Eva Erboll and Dora Kostakopoulou, ‘Mapping the Redefinition of Belonging in Europe’ in Ricky van Oers, Eva Erboll and Dora Kostakopoulou (eds), A Redefinition of Belonging? Language and Integration Tests in Europe (Martinus Nijhoff 2010) 307–331.

The Nexus of Migration and Integration in Light of Human Rights Norms

is always conditional. In the United Kingdom’s probationary citizenship arrangements, which the Coalition Government has now abandoned,3 for example, individuals’ settlement is broken into distinct phases, including a phase entitled ‘probationary citizenship’, which are clearly diffferentiated by gates that open or close depending on the migrants’ success or failure in tests of language and knowledge of life in the United Kingdom and the absence of a criminal record. 4 If individuals fail the language and knowledge about life in the United Kingdom tests at the gate from temporary residence to probationary citizenship, they would be required to leave the United Kingdom. Those succeeding to be probationary citizens would need to wait longer to qualify for naturalisation, would not be entitled to receive social assistance even though they pay full taxes, their children wishing to go to university would be treated as overseas students, would be expected to do voluntary work and to pass further tests. Exam failure would result in the extension of probation and the likelihood of removal from the United Kingdom. On 4 August 2009 the former New Labour Government announced proposals for the introduction of a points-based system for granting probationary citizenship and citizenship based on migrants’ linguistic ability, qualifijications obtained in the United Kingdom, economic contribution, skill-shortages in Britain, good behaviour and artistic, scientifijic or literary merit.5 A new naturalisation test on the history of Britain and its place in the international system was also envisaged.6 Although scholars, such as Joppke, would view compulsory integration as the pursuit of liberal goals through illiberal means and an instance of repressive liberalism,7 one should not overlook the role of civic integration in the process of 3

The earned citizenship system was due to be brought into effect in July 2011. On the 5th of November 2010, however, the Home Secretary announced that the scheme was to be abandoned and will no longer be introduced. The framework that will replace it is unknown at this time.

4

Borders, Citizenship and Immigration Act 2009, c. 11. It received Royal Assent on 21 July 2009.

5

Home Office, ‘Tough New Points System for Earning Citizenship’ (DIrectGov, 3 August 2009) accessed 25 August 2014.

6

‘Passport Scheme “Citizen Woolas”’ The Guardian (London, 4 August 2009) 9; ‘Canvass for a Political Party to win points for a British Passport, says Immigration Minister’ The Guardian (London, 4 August 2009) 4; Tom Peck, ‘Labour unveils Points System for Immigrants’ The Independent (London 4 August 2009) 2.

7

Joppke (n 1).

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migration control,8 and its use as a disciplinary technique in the management of ethnocultural diversity. In this game of ladders and snakes, testing one’s fluency in the host language and the accumulation of factual information about civics, history or life in the country, which may well be forgotten a few months after the test, and not shared common experiences and enmeshment in society, are deemed to be the important determinants of who deserves to reside in the country and become a member of the political body. By enacting the values of an allegedly ‘unifijied’ society, controlling membership of the polity, and making integration testing a symbolic act of subjugation to state power,9 governmental elites make and remake the nation. Their practices construct ‘subject positions’ for newcomers and citizens alike.10 Society is made and remade though the modalities of power and the particular scripts and practices of political elites. In this Section, I examine closely the civic integration script and discuss how international human rights law can unsettle its basic premises as well as bring forth an alternative normative and policy framework. II.

Adjustment and Integration; Adjacent Readings

More than fijifty years ago, C. Wright Mills commented on the notion of ‘adjustment’, and its opposite, ‘maladjustment’, as follows: This notion is often left empty of any specifijic content; but often, too, its content is in efffect a propaganda for conformity to those norms and traits ideally associated with the small-town middle class. Yet these social and moral elements are masked by the biological metaphor implied by the term ‘adaptation’; in fact the term is accompanied by an entourage of such socially bare terms as ‘existence’ and ‘survival’. The concept of ‘adjustment’, by biological metaphor, is made formal and universal. But the actual use of the term often makes evident the acceptance of the ends and the means of the smaller community milieux. Many writers suggest techniques believed to be less disruptive 8

Sergio Carrera (ed), The Nexus between Immigration, Integration and Citizenship in the EU (CEPS 2006).

9

Bernhard Perchinig, ‘All You Need to Know to Become an Austrian: Naturalisation Policy and Citizenship Testing in Austria’ in Ricky van Oers, Eva Erboll and Dora Kostakopoulou (eds), A Re-definition of Belonging? Language and Integration Tests in Europe (Martinus Nijhoff 2010) 28–29.

10

Dora Kostakopoulou, ‘The Anatomy of Civic Integration’ (2010) 73(6) Modern Law Review 933. cf Oded Lowenheim and Orit Gazit, ‘Power and Examination: A Critique of Citizenship Tests’ (2009) 40(2) Security Dialogue 145–167.

The Nexus of Migration and Integration in Light of Human Rights Norms than otherwise in order to attain goals as given; they do not usually consider whether or not certain groups or individuals, caught in underprivileged situations, can possibly achieve these goals without modifijication of the institutional framework as a whole.11

The idea of adjustment seems most directly applicable to a social scene in which, on the one hand, there is ‘the society’ and, on the other, ‘the individual migrant’. The immigrant must then ‘adjust’ to the society. The ‘immigrant problem’ was early in the sociologist’s center of attention, and the notions used to state it may well have become part of the general model for the formulation of all ‘problems’. From detailed examination of specifijic illustrations of maladjustment, it is easy to infer the type of person who is judged to be ideally ‘adjusted’.12 Wright Mills’ observations appear to be both pertinent and applicable to contemporary state-led discourses and policies on integration and mandatory testing of migrants’ knowledge of the language, history, national values, constitutional order and ways of life of the host society. I will tease out fijive such similarities; namely: (i) the emptiness of integration; (ii) the presumed defijiciencies on the part of the maladjusted; (iii) earning entitlements; (iv) the type of persons presumed to be adjusted or integrated; and (v) the construction of migrants as a problematic category. Like the notion of adjustment, integration is a nebulous concept. It can easily be described as a floating signifijier, that is, as a notion inviting state elites as well as policy entrepreneurs to fijill it with meaning in order to devise policy strategies and/or narratives of legitimation.13 And although, like adjustment itself, it could be used in progressive ways, that is, in order to remove obstacles to full societal inclusion and barriers to respectful symbiosis among people by igniting a critique of structural inequalities, more often than not it is used in a conservative way in order to procure conformity to the culture, values and ways of life of the dominant societal group or the majority. As such, it bears more than a family resemblance to pre- and post-World War II discourses on migrant assimilation and the necessary Americanisation or Anglicisation of newcomers. In such discourses, diffferent 11

C Wright Mills, The Sociological Imagination (OUP 2000) 90–91.

12

ibid 90–91.

13

For a conceptual and historical enquiry, see Kostakopoulou (n 10). The discussion in this section draws on this paper. cf Rinus Penninx, ‘Integration of Migrants: Economic, Social, Cultural and Political Dimensions’ in Alphonse L MacDonald and Haug W Macura (eds), The New Demographic Regime: Population Challenges and Policy Responses (UN 2005); Adrian Favell, Philosophies of Integration (Macmillan 1998); Kees Groenendijk, ‘Legal Concepts of Integration in EU Migration Law’ (2004) 6 EJML 111.

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languages, cultures, accents, beliefs were deemed to be terribly un-American, backward and ultimately unpatriotic. One may recall, here, for example, the demands of the grass roots ‘Americanisation’ movement which called for the imposition of a number of obligations on migrants, such as being able to speak and understand English, to know the American history and civics and to embrace a specifijic conception of ‘Americanness’.14 The views of Ellwood Cubberley are instructive in this respect. Writing in the fijirst decade of the 20th century against the backdrop of migration from Eastern and Southern Europe to the US, he stated: Illiterate, docile, lacking in self-reliance and initiative, and not possessing the AngloTeutonic conception of law, order, and government, their coming has served to dilute our national stock, and to corrupt tremendously our civic life (...). Our task is to break up these groups or settlements, to assimilate and to amalgamate these people as part of the American race, and to implant in their children, so far as can be done, the AngloSaxon conception of righteousness, law and order and popular government, and to awaken in them a reverence for our democratic institutions and for those things in our national life which we as a people hold to be of abiding worth’.15

The second similarity between Wright Mills’ passage, which was written in 1959, and contemporary integration programmes is that maladjusted persons are always judged against those presumed to be ideally adjusted. The maladjusted are thus perceived to be defijicient in comparison to the adjusted or the integrated. These presumed defijicits on the part of maladjusted not only justify the diffferentiation between the two groups, but also reinforce an implicit or explicit hierarchy between them. In both past and contemporary civic integration policy initiatives, migrants’ defijicits allegedly can only be overcome through the gradual process of acculturation to middle-class patterns of life and through learning and embracing the nation’s ideals and civic culture (education to citizenship). Such defijicits normally include, speaking another language,16 lacking the cultural traditions and values of the nation in question, having a diffferent religion or not knowing the history of the host

14

Juan F Perea, ‘Am I an American or Not?’ in Noah MJ Pickus and Rogers M Smith (eds), Immigration and Citizenship in the Twenty-First Century (Rowman and Littlefield 1998) 54.

15

Cited in Kwame A Appiah, The Ethics of Identity (PUP 2005) 202.

16

In the early 20th century this was deemed to be a sign of intellectual inferiority.

The Nexus of Migration and Integration in Light of Human Rights Norms

state and its constitutional evolution.17 Little or no attention is given to facts, such as that multilingualism is a resource and should not be deemed to be a handicap if it does not include familiarity with the language of the host society and that ‘lived languages’ can easily become ‘learned’ ones18 in a very short period of time. Integration is thus something that migrants have to do in order to ‘earn’ an entitlement to be in a country, temporary or permanent residence, social assistance and ultimately eligibility to naturalisation. State elites genuinely believe that integration is something that can be delivered, measured with a view to verifying that it has been achieved and, ultimately, enforced. In brief, integration is deliverable and ascertainable. What is needed it to prescribe mandatory language tuition and civic orientation classes and to test the applicants in order to confijirm their progress towards the desired goal of integration. This can be done at various gates – the gates devised so far are pre-entry screening and integration tests abroad, admission to a country, temporary or permanent residence and entry into the citizenry. Entry through the fijirst gate may or may not guarantee the opening of the other gates, for diffferent conditions and requirements may be attached to each gate. Yet, under close scrutiny this reasoning appears to be deeply flawed. This is not only because ‘integration’ is a long term process which cannot be subsumed under a contract of one or two or even fijive years’ duration. It is also due to the fact that ‘integration’ is a long, complex and multifaceted process. True, it is often bumpy and segmented,19 that is, closely linked to time and structural conditions, but it is equally true that it can be nurtured by the right policies and institutional conditions.20 In addition, this realisation is not confijined to migrant incorporation; it applies to all 17

On the superimposition of democratic inclusion on forgotten exclusions, see Anthony Marx, Faith in Nation: Exclusionary Origins of Nationalism (OUP 2003).

18

The latter terms are borrowed from Homi K Bhabha, The Location of Culture (Routledge 1994) , cited in Dora Kostakopoulou, ‘The Anatomy of Civic Integration’ (2010) 73(6) Modern Law Review 933.

19

On bumpy-line assimilation see Herbert J Gans, ‘Comment: Ethnic Invention and Acculturation: A Bumpy-line Approach’ (1992) 11(1) JAEH 42-52. On segmented assimilation see Min Zhou, ‘Segmented Assimilation: Issues, Controversies, and Recent Research on the New Second Generation’ in Charles Hirschman, Philip Kasinitz and Josh DeWind (eds), The Handbook of International Migration (Russell Sage Foundation 1999) 196–212.

20

Joseph Carens has observed that ‘we cannot simply take as unproblematic the notion that we can measure the success of integration of immigrants against the standard of proportional sharing in whatever the majority has and does’, see Joseph Carens, ‘The Integration of Immigrants’ (2005) 2(1) Journal of Moral Philosophy 42.

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groups in society. If people face rejection, they will not try to ‘integrate’; they may feel ‘more comfortable remaining outsiders’.21 More importantly, like so many other things in life, it is reversible. Even when we believe that it has been achieved, it can be punctuated by the spread of a sense of alienation, disillusionment and by dissent. Even ‘well-integrated’ citizens may fijind themselves questioning their commitment to a country or feeling strangers in the land,22 and recent foreign policy decisions are examples of how easy it is for a sense of alienation, disafffection and mistrust to spread among newcomers, citizens of migrant origin and autochthonous citizens. But it would be equally unwise to equate integration with the absence of such feelings since the latter play a crucial role in the formation of reflective judgements, democratic deliberations and demands for institutional change. In this respect, it may be argued that the integration contract is predicated on the delivery of something that is beyond both parties’ full control. This lends credence to the argument that the true goals of civic integration programmes are not integration and inclusion; instead, they are migration restriction, control and discipline. There also exists another possibility which may pervert the offfijicial objectives of civic integration, namely, their use by migrants in a purely instrumental way without procuring an identifijication with them. In their seminal book, entitled The Social Construction of Reality which was published in 1966, Berger and Luckmann highlighted this phenomenon by writing: “The individual internalises the new reality, but instead of being his reality, it is a reality to be used by him for specifijic purposes. In so far as this involves the performance of certain roles, he retains subjective detachment vis-à-vis them – he ‘puts them on’ deliberately and purposefully. If this phenomenon becomes widely distributed, the institutional order as a whole begins to take on the character of a network of reciprocal manipulations.”23 This results in individuals ‘playing at being what they are supposed to be and what they are not supposed to be’.24 The fourth similarity between Wright Mill’s observations and contemporary integration initiatives is that they point to a particular type of person judged to be per-

21

George A Akerlof and Rachel E Kranton, Identity Economics: How Our Identities Shape Our Work, Wages and Well-being (PUP 2010) 102–103.

22

Appiah (n 15) 125–127.

23

Peter Berger and Thomas Luckmann, The Social Construction of Reality: A Treatise in the Sociology of Knowledge (Penguin Books 1991) 192.

24

ibid 192.

The Nexus of Migration and Integration in Light of Human Rights Norms

fectly adjusted or well-integrated. The ‘good’ residents and citizens are nationals,25 and this is a reflection of the nationalist narrative of unifijied and unique nations that are nurtured and sustained by coherent and organic cultures.26 Offfijicial discourses thus defijine the ‘good citizens’ as unselfijish, self-sufffijicient, extrovert, willing to socialise with his/her neighbours and keen to participate in communal activities, successful, resourceful and modestly ambitious. By so doing, they create a picture of a homogenous public, thereby bracketing so many human experiences and citizenship positions; the jobless, poor residents of council estates, single parents taking up two and three jobs in order to raise their families, the homeless, those tormented by mental illness, those who care for disabled or terminally ill relatives and so on. The good citizen is also a ‘safe citizen’;27 a person embracing the prescribed values, patriotic, deferential to governmental policies and so on. Essentially, the regime of civic integration exhibits what Lynn Doty has described in another context as ‘an ultimately simplifijied understanding of our own identities, an understanding hinging on a certain blindness to the boundaries constantly being erected to circumscribe just what diversity is allowed to mean and how much of it can be tolerated before it becomes threatening to the very idea of a unifijied identity and thus undermines the coherence of the statement “I am an American”’.28 In determining what diversity is allowed to mean and how much of it can be tolerated, emphasis is placed on the traditional markers of national identity, that is, language, knowledge of the history, the civics and national ways of life. There are recipes for ‘correct citizenship’ since they carry an implicit guarantee of loyalty and are seen to guarantee systemic stability.29 But this narrative can only convince if the unifijied national community is juxtaposed to its threatening ‘other’, namely, the migrants. The narrative thus opens a 25

Sergio Carrera, In Search of the Perfect Citizen? The Intersection between Integration, Immi-

26

Dora Kostakopoulou, The Future Governance of Citizenship (CUP 2008) ch 2; Yosef Lapid

gration and Nationality in the EU (Martinus Nijhoff 2009). and Friedrich Kratochwil (eds), The Return of Culture and Identity in IR Theory (Lynne Rienner 1996). 27

The ‘unsafe’ citizen was used by Cynthia Weber, ‘Citizenship, Security, Humanity, International Political Sociology’ (2010) 4(1) International Political Sociology 80.

28

Roxanne Lynn Doty, ‘Do You Know if Your Borders are Secure?’ (2010) 4(1) International Political Sociology 92.

29

As Lord Goldsmith had stated, ‘people with a lower sense of attachment appear to be more critical of the current social and political order’, see Lord Goldsmith, ‘Citizenship: Our Common Bond’ (Citizenship Review, 2007) 86 accessed 25 August 2014.

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conceptual path for the maintenance of divisions. Migrants are transformed into a problematic category: they must be regulated, controlled, disciplined, tested and enlightened in order to cease to be threatening and/or a problem for social cohesion, the unity the society and the survival of national identity. This new categorisation is then endowed with its own implicit hierarchies and divisions; the good migrants versus the bad ones, the desirable versus the undesirable, the wanted versus the unwanted. Through civic integration discourses and policies, national elites will thus defijine the good migrants and those are deemed to be less assimilable. The latter, who more often than not are Turkish, Arab, Asian or African, will be at the bottom of the hierarchy. Little consideration is given to the facts that one’s nationality, religion or colour says nothing about the person and his/her ability to ‘fijit’ into society, that migrants’ lives are marked by complexity, translation, adaptation and fusion and that cultures and institutions are multilayered and mutable. The national script, that is, the story about the collective that elites propagate, does not leave room for complexity, variability and the reality of everyday life.30 Nor does it entail references to post-ethnic identities and cosmopolitanism, transnational connections and individuals’ overlapping membership of many communities formed at diffferent levels of governance. By placing excessive emphasis on national pride, shared national values and common national projects it is essentially a means of ongoing processes of state consolidation, identity formation and population control. As such, it is always unfolding, narrated, disseminated and instilled in policies and laws relating to entry, residence, family reunifijication and naturalisation. The retreat from the politics of multiculturalism and the state-led emphasis on mandatory integration testing invites further reflection on the legitimacy of such measures and their capacity to deliver the desired goal of integration. Arguably, mandatory attendance of language and civic orientation classes, the prolonged process of scrutiny, combined with additional tests for the upgrading of legal status, and the sanctions attached to either non-participation or examination failure are more likely to lead to trigger discouragement and feelings of exclusion within migrant communities. One wonders how a sense of belonging can be promoted by making it more difffijicult for one to belong. Stigmatisation and marginalisation of migrants thus occur by means of the very policies and strategies that have been designed to give them a place in society and to facilitate their integration. This leads me to con30

Compare the decision of the Conseil d’Etat in Mme M (27 June 2008). Mrs M outlined all the practices of social citizenship and integration she participated in everyday life, but this did not convince the French Conseil d’Etat which concluded that there existed a failure to assimilate.

The Nexus of Migration and Integration in Light of Human Rights Norms

clude that the discourse on integration is based on the same logic as the discourse of exclusion and intolerance and that civic integration programmes largely reproduce what they criticise and are supposed to correct. As such, they are instruments of social and political closure. The artifijicial homogenisation of society and the ethnocentricity characterising civic integration policies accentuates the vulnerability of migrants. By devaluing the productive efffects of migrant labour and the multifaceted and dynamic encounters and partnerships between migrants and the host society, it transforms the former into problematic and defijicient others. By so doing, it stimulates racism and fuels hostility, resentment and xenophobia.31 Right-wing discourses of fear and suspicion thrive in such an environment. Instead of afffijirming pluralism and the value of equal human dignity, and promoting intercultural dialogue and free communication, political life ends up being marked by strife and discrimination and becomes entangled in debates about essentialised cultural diffferences. The European Commission against Racism and Xenophobia has been concerned about these developments, not only because they have allowed for racist and xenophobic expression to become, sometimes, quite explicitly, a more usual occurrence with public debate itself, but especially because of the impact that the new political and public debate has had on public opinion and on the actions of ordinary citizens.32 And in his viewpoints, Thomas Hammarberg, Council of Europe Commissioner for Human Rights, has recommended the ‘building of bridges of understanding’: “[D]iffferent groups should be allowed to fully integrate into society and, over time, demonstrate what they and their culture have to contribute. Curiosity and open-mindedness should be encouraged as well as a dynamic vision of the future instead of fear and suspicion.”33 III.

Human Rights Norms and Pluralism: A Different Take on the ‘Integrated’ Society

International human rights law can unsettle the premises of the civic integration regime by presenting an alternative normative framework. In the discussion that follows I will focus on the normative resources that could be utilised to call into question mandatory civic integration, namely, equal human dignity and non-dis31

Nora Rathzel, ‘Developments in Theories of Racism’ in Laura Nader et al (eds), Europe’s New Racism? Causes, Manifestations and Solutions (Berghahn Books 2002) 3–26.

32

European Commission against Racism and Intolerance, Third Report on the Netherlands (ECRI 2008) 3.

33

Council of Europe, Human Rights in Europe: Growing Gaps (Council of Europe 2010) 134.

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crimination, constructive pluralism, the right to family life (Article 8 ECHR) and the diffferent perspective on the ‘integrated’ society emanating from human rights law. Respect for equal human dignity and the moral egalitarianism entailed by Article 1 of the Universal Declaration of Human Rights (‘all human beings are born free and equal in dignity and right’), coupled with the prohibition of discrimination on grounds of ‘race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’ (Article 2) and the proclamation that everyone has the right to recognition everywhere as a person before the law and is entitled without any discrimination to equal protection of the law, can unsettle the construction of migrants as a problematic category and thick narratives of belonging. In addition, the parties to the International Covenants on Human Rights34 have undertaken the obligation to guarantee that the rights enunciated in these covenants will be exercised without discrimination of any kind as to race, colour, sex or language and to combat racism (1965 International Convention on the Elimination of All forms of Racial discrimination).35 On the basis of the latter Convention, the Member States have thus an obligation to ‘expressly and specifijically’ prohibit discrimination and to promote equality. This entails the adoption and efffective enforcement of anti-discrimination legislation and adequate protection against racial harassment, violence and incitement to hatred. To deny or weaken human rights protection on the grounds of cultural specifijicity, race or ethnicity or the need to maintain a particular conception of national identity is discriminatory and contrary to the Vienna Declaration and Programme of Action.36 Human rights instruments not only have afffijirmed the importance of culture for individuals and groups, but have also recognised the importance of cultural pluralism and the protection of cultural diversity. Article 27(1) of the Universal 34

These are the International Covenant on Civil and Political Rights (adopted 16 December 1966, entry into force 23 March 1976) 999 UNTS 171 (ICCPR); the International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entry into force entered into force 3 January 1976) 993 UNTS 3 (ICESCR). All instruments were concluded in 1966: UNGA Res 2200 (1966) 21 GAOR Supp 16, 52 UN Doc A/6316; UNGA Res 2200 (1966) 21 UN GAOR Supp 16, 49 UN Doc A/6316; UNGA Res 2200 (1966) 21 UN GAOR Supp 16, 59 UN Doc A/6316.

35

UNGA Res (XX) 2106 (adopted 21 December 1965, entered into force 4 January 1969) 660 UNTS 195.

36

This was adopted in 1993 by the United Nations World Conference on Human Rights in Austria and affirms the universality of human rights, for para 1 states: “The universal nature of these rights and freedoms is beyond question.”

The Nexus of Migration and Integration in Light of Human Rights Norms

Declaration on Human Rights, which entails the recognition of the right of everyone to participate in the culture of the community and which is reafffijirmed by Article 15 of the International Covenant on Economic, Social and Cultural Rights and Article 27 of the International Covenant on Civil and Political Rights, which entails the right of persons belonging to ethnic, religious or linguistic minorities to enjoy their own culture, has been complemented by the right of individuals to participate in cultural activities in Article 5(e)(vi) of the International Convention on the Elimination of All Forms of Racial Discrimination and Article 31 of the Convention on the Rights of the Child.37 The latter Convention states explicitly that education must develop ‘respect for the child’s own cultural identity, language and values and for the national values of the country in which the child is living’ while the 1990 Convention on the Protection of the Rights of All Migrant Workers and Members of their Families affijirms migrant workers’ right to maintain their cultural identity (Article 31) and the right ‘to hold opinions without interference’ (Article 13(1)).38 In this respect, the rigorous scrutiny of the cultural afffijiliations, beliefs and practices of newcomers and aspiring citizens39 does not appear to be consonant with established human rights norms. 40 The 1966 UNESCO Declaration on the Principles of International Cooperation, proclaimed by the General Conference of UNESCO on 4 November 1966, stated that all cultures form part of the ‘common heritage belonging to all mankind’. The Declaration recognises that ‘each culture has a dignity and value which must be respected and preserved’ (Article 1) in conjunction with the afffijirmation of human dig-

37

Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2

38

The Convention was adopted in 1990 by the UNGA Res 45/158 (18 December 1990) UN

September 1990) (1989) 28 ILM 1448. Doc A/RES/45/158. No European Union Member state has ratified it yet. For a discussion of the reasons, see Paul de Guchteneire, Antoine Pecoud and Ryszard Cholewinski (eds), Migration and Human Rights: The United Nations Convention on Migrant Workers’ Rights (UNESCO and CUP 2009). 39

Compare the Baden-Wurttemberg citizenship test which questions applicants’ attitudes towards sexual orientation and gender.

40

Respect for and protection of cultural identity features is also affirmed by the Declaration on Race and Racial Prejudice; the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief; and the Declaration on the Principles of International Cultural Cooperation and the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities.

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nity in the UDHR. 41 In this respect, both interstate cultural cooperation and internal exchanges among majority and minority communities need to be promoted. And the Mexico City Declaration on Cultural Policies, which was adopted on 6 August 1982, recognises that cultural pluralism is manifested in the presence of a variety of cultural identities. Article 2 states that ‘the assertion of cultural identity therefore contributes to the liberation of peoples. Conversely, any form of domination constitutes a denial or an impairment of that identity’. After all, as the Declaration on Race and Racial Prejudice has noted, ‘[a]ll individuals and groups have the right to be diffferent (...) and to be regarded as such’ (Article 1). The Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities highlights the importance of mutual understanding and cultural pluralism for societal enrichment. 42 Similarly, within a regional level, the preamble of the 1995 Framework Convention for the Protection of National Minorities afffijirms that through dialogue cultural diversity becomes a source for the advancement of societies. 43 Recognition and protection of people’s own language and culture facilitates human rights promotion and protection; as Diana Ayton-Shenker has noted, ‘such an approach is essential to ensure that the future will be guided above all by human rights, nondiscrimination, tolerance and cultural pluralism’. 44 States practices need to be consonant with fundamental rights, including the right to family and private life enshrined in Article 8 ECHR. In this respect, if integration requirements imposed on spouses seeking family reunifijication become essentially hurdles designed to delay or even to deter their entry, and if spouses fijind themselves unable to join their partners if they fail the integration tests, then it is quite likely that national regulations interfere with the normative structure of the right to respect for family life (Article 8 ECHR). Normative infringements which make it virtually impossible to exercise the right or impair its very substance are unlawful. If, on the other hand, integration measures, such as language and civic orientation tests, are deemed to be simply arrangements associated with the exercise of the right to family reunifijication, because, for example, exam failure does not pre41

Kishore Singh, ‘UNESCO and Cultural Rights’ in Halina Niec (ed), Cultural Rights and Wrongs

42

UNGA Res 47/135 (3 February 1993) UN Doc A/RES/47/135. See also Alexandra Xanthaki,

43

Framework Convention for the Protection of National Minorities (adopted 1 February

(UNESCO 1998) 148. ‘Multiculturalism and International Law: Discussing Universal Standards’ (2010) 32 HRQ 21. 1995, entered into force 1 February 1998) CETS 157. 44

Diana Ayton-Shenker, ‘The Challenge of Human Rights and Cultural Diversity’ (March 1995) UN Doc DPI/1627/HR.

The Nexus of Migration and Integration in Light of Human Rights Norms

clude the grant of a temporary visa to enter the host country and to retake the tests there, then such interferences, falling within the domain of Member States’ margin of appreciation, could be justifijied according to Article 8(2) ECHR, provided they are in accordance with the law, pursue a legitimate aim (and such aims are exhaustively listed in 8(2) ECHR), are necessary in a democratic society and meet a proportionality test. This means that the Dutch and German integration requirements, which are essentially admission requirements or conditions for entry authorisation, could well be seen to infringe Article 8 ECHR. 45 Human rights thus protect individuals’ private and family life and, as the foregoing discussion has shown, welcome the right to be diffferent. 46 This implies neither the essentialisation of cultural identities nor the reifijication of cultures. Individuals are located within an ever-changing historical process which shapes and reshapes their manifold identities. Additionally, cultures are artefacts that change, mutate, become more plural, get constructed and re-constructed within complex and dynamic socio-political environments. By attributing importance to intercultural dialogue, mutual exchanges, cultural diversity and fair treatment, human rights law thus entails the resources needed to challenge exclusionary notions of belonging propagated by state elites and coercive state practices and to promote ‘thinner’, in the sense of less ethnocentric, conceptions of citizenship. Avoiding discrimination in the attribution of nationality features prominently in the 1997 European Convention on Nationality, which has been neither signed nor ratifijied by the United Kingdom and Belgium. The Convention not only furnishes the principles informing states’ nationality laws, but also provides that naturalisation conditions should not be used as a discriminatory means of population selection or of implementation of a discriminatory policy. In this respect, imposing integration requirements which may reflect ‘subjective and arbitrary judgments’, 47 or demand unreasonably high levels of attainment or impose exceedingly high tuition require45

I have discussed this in Kostakopoulou (n 10).

46

Rodolfo Stavenhagen, ‘Cultural Rights: A Social Science Perspective’ in Halina Niec (ed), Cultural Rights and Wrongs (UNESCO 1998) 12. It may be worth noting here that Baroness Elles’ Draft Declaration on the Human Rights of non-citizens entailed ‘the right to retain one’s language, culture and traditions’. Had a similar provision on the retention of language, culture and traditions been adopted, it could plausibly be interpreted as conferring upon non-citizens a legal right to resist integration in the host country, see Richard B Lillich, The Human Rights of Aliens in Contemporary International Law (MUP 1984) 55.

47

The Advisory Opinion of the Inter-American Court of Human Rights of 19 January 1984 (OC-4/84) as cited in van Oers, Erboll and Kostakopoulou (n 2) 328.

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ments and fees thereby making access to nationality increasingly difffijicult or positing obstacles to the acquisition of nationality by the children of migrants, all would be seen to contravene the Convention. Accordingly, human rights norms could open pathways for calling into question societal closure and for promoting a culture of rights and respect for the other. For it is only through learning from each other, engaging in intercultural and interreligious dialogue and protecting diversity that constructive pluralism can take root in contemporary multicultural and globalised environments. While the discourse and policy of integration replicates national policies of migrant assimilation and domination, constructive pluralism welcomes migrants, who are unavoidably carriers of distinct cultures, languages, religious beliefs and values which do not contravene the normative framework of human rights and fundamental freedoms and the legal framework of the host society, as collaborators, partners and citizens in waiting (Table 1 below). The proliferation of mandatory integration testing in Europe signals an offfijicial retreat from multiculturalism, has augmented the vulnerability of migrants and has fuelled racist and xenophobic discourses. States’ eagerness not only to fijilter who may be allowed to enter the country and under what conditions, but also to place additional obstacles to acquiring a short term or long term residence entitlements and eventually citizenship have transformed migrant incorporation into an obstacle race. Coercive practices and the deployment of juridical mechanisms of migration control in order to enforce mandatory integration requirements coupled with the unnecessary state interference into individuals’ private realms, by inquiring about their beliefs and views on nudity, gay partnerships, religion, family practices and conventions, have extended the disciplinary reach of the state and have give rise to unease in societies. Mapping these developments and inspired by the vision of human rights, democracy and cultural pluralism, the subsequent table compares and contrasts integration through participation in institutionally programmed games of snakes and ladders with the pluralist mode of migrant incorporation centred on rights and empowerment.

The Nexus of Migration and Integration in Light of Human Rights Norms

Communities The wider political narrative

Key terms Perceptions of Newcomers and nonnational residents Learning and incorporation

Sense of ‘belonging’

Integration Ethnocentric or civic nationalist Embracing homogeneity Nationality as the key to unity and social cohesion

Hierarchy, control and intolerance Subjects or very ‘weak framers’

Re-education – the content is determined by state authorities and includes formal courses, compulsory attendance, specifijied hours and curriculum and tests To be instilled through formal programmes, tests and acts

Community Relations Suspicion and qualifijied acceptance: re-certifying their commitment at multiple gates – ‘should they really be here?’ ‘who is worthy to belong to the community of citizens? Citizenship An obstacle race

Pluralism Plural, forward-looking and relaxed The unity of society is achieved by doing things together, solving problems together, by designing appropriate institutions and by valuing the effforts of all those who contribute to the commonwealth Participation, fair treatment and non-discrimination Active participants, collaborators and stakeholders Learning is self-directed and unavoidable: there exist multiple sites of learning and newcomers should be encouraged (not compelled) to take part in as many spheres of social life as possible It develops as a matter of course in processes of social interaction and cooperation Respectful symbiosis

Easily acquired

Table 1. A comparison of incorporation strategies

Human rights norms thus not only expose the fault line characterising the way in which we see the others and conceive of integration, but they also bring forward a diffferent picture of the ‘integrated’ society. They put emphasis on respect for the inherent dignity of all human beings irrespective of their class status, nationality, religion or legal status, do not tolerate diffferential treatment that is not objectively justifijied and compliant with proportionality and call into question narratives of organic national communities whose organising principles newcomers must be co-

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erced to learn. These two approaches are, of course, very diffferent and likely to yield very diffferent results. By putting emphasis on the historically ongoing character of social cooperation and a process of imagining (and re-imagining) communities and constructing (and reconstructing) collective identities that respects individuals’ interests and expectations, the cosmopolitan promise of human rights leaves little room for notions of ‘authentic cultures’, for ‘others who are deemed to be unfijit for the national life and national citizenship’ and ‘true members’. Instead, it afffijirms the importance of pluralism, cultural heterogeneity and dialogic exchanges among groups and individuals with the view to maintaining and enriching the networks of cooperative interaction, enhancing the flourishing of the commonwealth and sharing its burdens more equitably. In such an environment, individuals do not have to abandon their identities or reject their value systems in order to conform to the attitudes and cultures of the host community, but they are constantly challenged by the flow of ideas and arguments and prompted to reflect on the merits of assumptions, beliefs, ideas and prejudices that may espouse. No human activities take place in walled-offf spaces, no actions are purely self-regarding and no policies are acceptable particularly when they imply harms or injustice to others, be they close or distant. This is because, contrary to contemporary political narratives associated with integration and citizenship tests, we live among moral agents, our thinking has been shaped by them and our actions have implications for them. I have not seen a better depiction of the co-operative model of society mentioned above than in David Oleson’s 1964 ‘parquet deformation’ picture featuring below. Entitled the ‘I at the Center’, it shows how our personal identities are shaped by the myriad influences of neighbouring others, whose shapes, in turn, become increasingly diffferent as they are drift away from the centre. The same would hold true if the ‘I at the Center’ was substituted by ‘Community’. By going beyond the ‘I at the Center’, and Hofstadter’s insightful remark that in Oleson’s pen and ink design we see that ‘each of us is a bundle of fragments or other people’s souls, simply put together in a new way, 48 one observes the common groupings that emerge towards the periphery of the design as well as the absence of any walls, diving lines and even bridges among the central and peripheral shapes. In this image, communities feature as being the same and diffferent at the same time and the web that holds groups and individual together in a political unit remains uninterrupted. In such an interconnected society, each community or personality helps defijine others’ identities even as it seeks to defijine its own. ‘Integration’ thus occurs ‘without a script’, precisely because there is no intention to make it a culturally self-authenticating device. Rather, it is a matter of 48

Douglas Hofstadter, I Am a Strange Loop (Basic Books 2007) 252.

The Nexus of Migration and Integration in Light of Human Rights Norms

participation, the interweaving of experiences and empowerment through rights. Being together with others, doing things with them and living together with mutual respect and equality entails a highly compelling vision of integration. Embedded within such a co-op model of society is individuals’ freedom to ‘choose whether or not to identify with a cultural community or with more than one cultural community simultaneously, regardless of borders, and to modify that choice’ and their right ‘not to be designated as belonging to a cultural community, or be assimilated into one, against his or her will’. Both rights featured in an informal working draft Declaration of Cultural Rights prepared by experts and representatives of organisations with a view to presenting it to UNESCO for adoption, 49 and if they had been adopted they could legitimately be seen as conferring on individuals a right to resist integration or assimilation.

Figure 1. David Oleson’s ‘parquet deformation’, created at Carnegie-Mellon in 1964

49

See Art 4 on ‘Identification with a Cultural Community’ in Appendix C Draft Declaration of Cultural Rights, in Halina Niec (ed), Cultural Rights and Wrongs (UNESCO 1998) 204.

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IV.

Conclusion

Contemporary civic integration regimes do not look to international human rights norms and the tradition of cultural pluralism for direction and inspiration. Instead of working with the new world of the 21st century, they decry the passing of the old world of national monoculturalism and closure. But by concentrating on outmoded concepts and narratives to respond to anxieties about national identities and to procure migration restriction and control, political elites can easily be seen as destroyers, and not as enablers, of societal integration and inclusion. In both offfijicial discourses and policies, ‘integration’ is not just a word to describe an action or the conditions for societies’ harmonious development. Integration has become politicized by elites embracing the multiculturalism as a problem or a threat to national cohesion narrative championed by right-wing political parties has mutated from a fact aligned with issues of socio-economic inequality and the social marginalisation of migrants and their families to a norm tied up with ethnocentricity and individuals’ alleged inability or unwillingness to assimilate. Whether it is perhaps time to redefijine the concept of integration or to abandon it as a norm and retain it as a fact aligned with socio-economic issues remains the subject matter of a continuing discussion that cannot be divorced from considerations of political morality and human rights.

6

The Admission of Refugees Guy S. Goodwin-Gill*

I.

Introduction

This paper examines the admission of refugees from the perspective of asylum, protection and solutions; it considers the ‘problems’ that arise from certain studied uses of the word ‘asylum’, the linkages between admission and solutions, and the legal developments of the past couple of decades, particularly in Europe. It concludes by trying to locate these issues fijirmly within the context of general international law. History, of course, is important. It can offfer lessons, highlighting redundant practice and the limits of contemporary discourse; it can also remind us of how far we have come, and in some respects we have in fact come quite far. Back in 1977, Richard Plender published an article in the San Diego Law Review which appears precisely to deal with the present topic. It was entitled ‘Admission of Refugees’, but its focus was special and of its time, and it dealt specifijically with what turned out to be the abortive 1977 Conference on Territorial Asylum.1 But in the course of his analysis of this then contemporary issue of refugee defijinition, Richard Plender also had occasion to recall the general rule of customary international law that no individual may assert a right to enter a state of which he or she is not a national, and that this was considered to apply as much to the refugee as to any other migrant. The so-called right of asylum, he recalled, is that of the State, which retains discretion in the matter. There is, of course, ample support for this proposition, whether * 1

Senior Research Fellow, All Souls College, Oxford Professor of International Refugee Law Richard Plender, ‘Admission of Refugees: Draft Convention on Territorial Asylum’ (1977/1978) 15 San Diego LR 45.

Sir Richard Plender (ed.), Issues in International Migration Law Copyright 2015 Koninklijke Brill NV. Printed in The Netherlands. ISBN 978-90-04-20851-3 pp. 111-117

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in the writings of the classic commentators, such as Moore or Hackworth, or in the 1940s debates in the Commission on Human Rights in what was to become Article 14(1) of the Universal Declaration of Human Rights, or in the studied disinclination of the drafters to include anything on admission or asylum in the substantive provisions of the 1951 Convention relating to the Status of Refugees. Was this then, and is it now, an end to the matter? I suggest not, and that what is missing, perhaps intentionally so, is a clear and vigorous understanding of the meaning of terms. II.

Deconstructing the Discourse

The problems begin with the word ‘asylum’, and that perhaps is consequential on the political context in which the institution evolved, particularly in the 19th Century. In 1950, the Institute of International Law defijined ‘asylum’ simply as, ‘the protection which a State grants on its territory or in some other place under the control of its organs to a person who comes to seek it’ – a basic, descriptive approach, rooted primarily in the concept of territorial jurisdiction, which says nothing about obligation or about what asylum might actually entail. The reluctance to explore the juridical connotations of asylum any further was already clear when States came to discuss what the fijirst drafts of Article 14(1) of the 1948 Universal Declaration of Human Rights, the fijinal text of which reads, ‘Everyone has the right to seek and to enjoy in other countries asylum from persecution’. What was immediately apparent in the debates were the diffferent perspectives among States, and the extent to which these perspectives, reflecting particular national interests, afffected the approach to the terminology, opposing the internationalist to the nationalist, the ‘asylum as protection’ school to the ‘asylum as immigration’ school. Not every State was happy with the fact that asylum was even included in the Universal Declaration. The United Kingdom’s own draft failed to mention it, and the United States of America also thought that it was not needed. France, on the other hand, then represented by René Cassin, proposed a text under which everyone would have the right, not only to seek, but also to be granted asylum from persecution; and, he suggested, the United Nations should also be empowered to secure asylum. The United Kingdom maintained its objection to any references to obligation, whether explicit or implicit. It proposed that the words, ‘and be granted’, be replaced by the vaguer, more innocuous phrase, ‘and to enjoy an expression to denote the right enjoyed by an alien if a state should decide, in its discretion to grant him asylum’. This was what was fijinally adopted. While the United Kingdom proclaimed its

The Admission of Refugees

sympathy for the persecuted, ‘no foreigner’, it said, ‘could claim the right of entry into any State unless that right were granted by treaty’. Indeed, if there were a right to be granted asylum, Art. 14 ‘might actually lead to persecution by encouraging States to take action against an undesirable minority and then to invite it to make use of the right of asylum’. The Australian delegation raised similar objections,2 but the French responded that asylum was an issue where national interests should yield to that of the international community. René Cassin argued that for the right to have any meaning, some provision on the grant of asylum was required. In his words, it had been a mistake, ‘to recognize the individual’s right to seek asylum while neither imposing upon States the obligation to grant it nor invoking the support of the United Nations’.3 These drafting debates thus reveal a tension between the internationalist and the nationalist approach; between those who saw asylum in immigration terms, and those who placed primary importance on its protection role. The nature of the intellectual divide, I suggest, ensured that there would be no agreement; and thereby also put protection on hold for several decades to come. Debate on the asylum question did not stop in 1948, however. It continued through the 1950s, but in an environment dominated also by the politics of the Cold War. Overall, whilst there was a measure of agreement on the importance of asylum as a natural corollary of other human rights, there was little readiness to translate the ‘right’ into an obligation to admit and allow to remain, as opposed to endorsing, in general terms, the importance of international solidarity and need to strengthen and protect the integrity of the institution of asylum. III.

Change over Time

1.

Co-Operation in Pursuit of Solutions

Even as States resisted expressions of obligation in regard to the admission of refugees, at the political level they were nevertheless especially conscious of the need to fijind solutions for the problem of refugees. 2

Australia, and a number of other countries, expressed similar views in 1981, in relation to the German Federal Republic’s initiative on international cooperation to avert new flows of refugees: ‘Report of the Secretary-General’ (23 October 1981) UN Doc A/36/582, 5.

3

‘Draft International Declaration of Human Rights (E/BOO)’ (3 November 1948) UN Doc A/C.3/SR.122; ‘Draft International Declaration of Human Rights: Amendments to the Draft Declaration’ (12 October 1948) UN Doc A/C.3/244/Rev.1.

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In adopting the Statute of the Offfijice of the UNHCR in 1950, for example, the General Assembly expressly identifijied assimilation in new national communities among the options to be pursued for permanent solutions. It urged States to co-operate with UNHCR by admitting refugees, and in another resolution adopted the same day, urgently appealed to States to assist UNHCR’s immediate predecessor, the International Refugee Organization, with its effforts to resettle refugees, that is, to fijind opportunities for refugees in States other than that in which they had fijirst found refuge. This approach has been repeated over time, and the responsibility of the international community at large to provide solutions – the very position argued so eloquently by René Cassin in 1948 – can be seen in the often massive resettlement programmes concluded during the past sixty years or so, Europe and Indo-China being the most obvious examples. At the same time, of course, the nature of resettlement satisfijies some of the sovereign self-interests of States: it allows the resettlement country to pick and choose among refugees already admitted to or on the territory of another State. Although States may commit to taking a certain number of refugees for permanent resettlement, and to co-operate with UNHCR in the process of selection, it is clear that they remain fijirmly attached to their sovereign right to decide. Curiously, as explained further below, States have tended recently to adopt much the same position in regard to local integration, that is, to providing or permitting a local solution for refugees already admitted to their territory. The Conclusion on Local Integration adopted by the UNHCR Executive Committee in 2005, for example, declares: “Local integration is a sovereign decision and an option to be exercised by States guided by their treaty obligations and human rights principles.” 4 This is ‘curious’ because treaty obligations and human rights principles commonly do more than ‘guide’ – they determine or require that States engage in or refrain from certain conduct, or that they abide by certain standards of treatment in dealings with individuals, whether citizens, non-citizens, refugees or asylum seekers. What the solutions examples do tend to show is relatively clear and straightforward, namely, that where asylum/solutions is approached from the immigration perspective, sovereign discourse tends to prevail. However, that leaves a whole other dimension as yet untouched.

4

UNHCR, ‘Conclusion on Local Integration’ (7 October 2005) UN Doc A/AC.96/1021, para 22; UNGA Res 60/129 (16 December 2005) UN Doc A/RES/60/129, paras 15 and 16.

The Admission of Refugees

2.

The Change in Protection

That ‘other dimension’ is protection. Already, and certainly from the 1970 onwards, European State practice had accepted that refugees beyond the scope of the 1951 Convention, sometimes called de facto refugees, had a claim to protection. Certainly, many States resisted the idea that protection might be due as a matter of obligation, but all that was to change. In this regard, the judgment of the European Court of Human Rights in the case of Soering v United Kingdom has had a seminal influence.5 Ostensibly this extradition case had nothing to do with asylum or refugees, for the European Convention on Human Rights (ECHR) says nothing about such matters, or about the competence of States to regulate the admission or removal of non-citizen; and yet the judgment homed in on a governing principle of responsibility, of protection, anchored in Article 3, if not deeper still. The ratio in Soering – the reason for judgment – lies in recognition of the obligation not to return an individual to a country where there are substantial grounds to believe that he or she will face a serious risk of irreparable harm contrary to Article 3 ECHR. The responsibility of the State is based on the foreseeability of apprehended harm outside its territory or jurisdiction, where liability is incurred by reason of the State taking action which, as a direct consequence, exposes an individual to the risk of the prohibited treatment in question.6 What is even more illuminating, though, is the court’s reference, beyond the explicit words of Article 3, to what ‘would plainly be contrary to the spirit and intendment of the article’, and to an ‘inherent obligation’ not to extradite where the fugitive would be faced with the real risk of inhuman or degrading treatment or punishment in the receiving State.7 How and where might the concept of inherent obligation be applied? The jurisprudence of the European Court of Human Rights confijirms that protection will extend not only to circumstances covered by the absolute prohibition of torture, inhuman or degrading treatment or punishment, but also to the right to life,8 the prohibition of slavery or forced labour, and to other cases engaging the ‘fundamental values’ recognized in the Convention and by the Court. When the European Union came to adopt rules on the protection of 1951 Convention and other refugees, it was therefore natural to read in the jurisprudence 5

Soering v The United Kingdom App no 14038/88 (ECtHR, 07 July 1989).

6

Soering [ 91].

7

Soering [88].

8

Al-Saadoon and Mufdhi v The United Kingdom App no 61498/08 (ECtHR, 2 March 2010).

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of the European Court of Human Rights. This institutional legal background, and much more, is recognised in the European Union’s 2004 Qualifijication Directive, the Treaty establishing the European Community, as amended by the Treaty of Lisbon, and the Charter of Fundamental Rights. Against this background, it is instructive to try to transpose rule and principle to some more immediate problems, such as the case of irregular migrants and asylum seekers arriving or trying to arrive in Europe by way of vessels leaving the coast of North Africa. In this context, extraterritorial measures of interception present perhaps the greatest challenge to any putative principle of admission, so that it is particularly important to identify and clearly single out the rules and obligations in play. In its January 2011 judgment in the case of M.S.S. v Belgium and Greece,9 the European Court of Human Rights reminded States party to the Convention that asylum seekers are members of a ‘particularly underprivileged and vulnerable population group in need of special protection’.10 Though States may take steps to manage irregular movements, they must comply with their international obligations, particularly Article 3 ECHR, given the irreversible nature of the damage that may result if refoulement occurs.11 For EU Member States, the obligations incidental to border management and control are also clear. The Schengen Borders Code locates itself fijirmly among the international obligations of States, including those relating to refugee protection and in the fundamental rights and values common, indeed central, to the EU and its members. International legal principles of State responsibility underline the extraterritorial dimensions to liability. Where Article 3 ECHR and Article 33 of the 1951 Convention are concerned, jurisprudence and doctrine have detached obligations from territory, localising responsibility in the acts of individuals, or organs like Frontex, and thereby primarily in the principle of attribution. Even before the most recent events in North Africa, it was known that those intercepted and returned to Libya were at risk of ill-treatment and refoulement, and that among them were those in need of and entitled to international protection. Such knowledge, actual or imputed, is a key factor in the determination of responsibility, as the International Court of Justice underscored in the Corfu Channel case

9

M.S.S. v Belgium and Greece App no 30696/09 (ECtHR, 21 January 2011).

10

M.S.S. [231]–[233], [251].

11

M.S.S. [216] and [218]. See also Guy S Goodwin-Gill, ‘The Right to Seek Asylum: Interception at Sea and the Principle of Non-Refoulement’ (2011) 23 IJRL 443.

The Admission of Refugees

in 1949,12 and as the European Court of Human Rights found in M.S.S. v Belgium and Greece. The fact that States and Frontex keep no records of those intercepted and returned is no excuse. International law requires distinctions to be made, and failure to take appropriate measures merely strengthens the inference that interceptions at sea have resulted in the summary return to situations of risk of individuals in need of international protection, in breach of international law. IV.

Conclusion

The international legal obligations are clear. Depending, as always, on the circumstances the only way to ensure protection, to ensure that distinctions are made where international law requires distinctions to be made, to separate the trafffijicker from the victim of trafffijicking, and to identify those in need of international protection. In many cases, the only efffective way to achieve this goal may indeed be by way of admission, not to the territory of some compliant coastal State lacking the infrastructure to guarantee rights and compliance with international legal standards, but to the territory of the intercepting State – that is, to the State which has acquired jurisdiction through its act of interception.13 It is already recognized that asylum applicants on the threshold of entry must in fact be ‘admitted’ in order that their claim to protection can be assessed, and that to refuse to admit risks violation of the prohibition of refoulement.14 In my view, it does little good to keep repeating the adage that the non-citizen has no right to enter the territory of any State other than that of nationality, precisely because this tells us nothing of value about protection; and protection is the question and the challenge for today.

12

Corfu Channel Case (UK v Albania) (Merits) [1949] ICJ Rep 4.

13

See further, Guy S Goodwin-Gill, ‘The Extra-Territorial Reach of Human Rights Obligations: A Brief Perspective on the Link to Jurisdiction’ in Laurence Boisson de Chazournes and Marcelo G Kohen (eds), International Law and the Quest for its Implementation: Liber Amicorum Vera Gowlland-Debbas (Brill 2010) 293–308.

14

It is common knowledge, of course, that States can and do find ways to avoid liability for which is effectively non-admission, for example, by way of ‘safe third country’ removals and the implementation of readmission agreements with other States.

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Family Reunification at the Interface of EU Law and the European Convention on Human Rights Adam Weiss*

I.

Introduction

When interpreting provisions of European Union law that have consequences for fundamental rights, the European Court of Justice (known since 1 December 2009 as the Court of Justice of the European Union, ‘Court of Justice’)1 has made it clear that those EU law provisions have a meaning that is distinct from (albeit potentially influenced by) the European Convention on Human Rights (‘ECHR’).2 Likewise, the European Court of Human Rights (‘ECtHR’), when dealing with cases that raise issues under European Union law, has made it clear that its role is not to interpret EU law but to interpret the ECHR.3 Things have changed, however, since 1 December 2009, when the new Treaty on European Union and Treaty on the Functioning of the European Union came into force, and the amended EU Charter of Fundamental Rights of the European Union *

Adam Weiss is now the Legal Director of the European Roma Rights Centre, Hungary; he was previously the Assistant Director of the Advice on Individual Rights in Europe Centre (AIRE), a London-based NGO whose mission is to promote awareness of European law rights and assist marginalised individuals and those in vulnerable circumstances to assert those rights. AIRE’s main activities are providing advice to individuals and other legal advisers on rights under European law (notably European Union law on the free movement of persons) and representing individuals in cases before the European Court of Human Rights.

1 2

See TEU Art 13(1). See eg Case C-465/07 Meki Elgafaji and Noor Elgafaji v Staatssecretaris van Justitie [2009] ECR I-921 [28].

3

See eg N.A. v The United Kingdom App no 25904/07 (ECtHR, 17 July 2008) [107].

Sir Richard Plender (ed.), Issues in International Migration Law Copyright 2015 Koninklijke Brill NV. Printed in The Netherlands. ISBN 978-90-04-20851-3 pp. 119-141

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became a justiciable instrument, with the same legal force in the Union legal order as the Treaties. 4 Many of the provisions of the EU Charter correspond to provisions of the ECHR, and in those cases, the EU Charter specifijies that ‘the meaning and scope of those rights shall be the same as those laid down by the said Convention’.5 That means that when national courts and the Court of Justice interpret and apply certain EU Charter rights, they must look to the ECtHR case law for the (minimum) content and scope of those rights. Likewise, there are an increasing number of cases where the ECtHR fijinds it must interpret EU law, for example in order to determine if State action that interfered with family or private life was ‘in accordance with the law’ (Article 8(2) ECHR),6 or to assist in deciding whether a State has exposed individuals to inhuman and degrading treatment.7 The convergence of ECHR and EU law in the area of human or fundamental rights will, in coming years, afffect a large number of areas of the law: criminal law,8 asylum law,9 and the right to property 10 are a few examples. The purpose of this paper is to look at the consequences of this convergence for family reunifijication. This is not an exhaustive examination; it looks at a few aspects of family reunifijication that raise issues at the interface of EU law and the ECHR and examines the approaches that the Court of Justice and the ECtHR have taken to those issues. Section II looks at the concept of ‘family reunifijication’ and discusses what that term means in the context of this paper. Section III looks at family reunifijication in the immigration context. Section IV looks at family reunifijication in the context of international child abductions, an issue which is increasingly taking up the time of the Court of Justice and the ECtHR. Section V looks at family reunifijication in the context of cross-border criminal measures.

4

TEU Art 6(1).

5

Charter Art 52(3).

6

See eg Aristimuño Mendizabal v France App no 51431/99 (ECtHR, 17 January 2006) [79].

7

See eg M.S.S. v Belgium and Greece App no 30696/09 (ECtHR, 21 January 2011 [263]. Given that EU law protects fundamental rights in theory, under the Charter, but provides limited access to judicial remedies at European level – particularly, limited access to the Court of Justice when a Member State has violated fundamental rights when implementing EU law – it seems likely that the ECtHR will be considering an increasing number of cases like M.S.S. and Aristimuño Mendizabal (n 6).

8

See Section V of this Article.

9

See M.S.S. (n 7).

10

See eg, Bosphorus v Ireland App no 45036/98 (ECtHR, 30 June 2005).

Family Reunification at the Interface of EU Law and the ECHR

II.

The Concept of Family Reunification

The phrase ‘family reunifijication’ brings to mind situations where families have been separated, voluntarily or involuntarily, and are seeking permission from the State in which some of them are living to reunite in the territory of that State. This is closely related to scenarios of family separation – where families are seeking to stay together (faced, for example, with the deportation of one of their members) – and family formation – for examples, were couples are looking to get married or have children, but have difffijiculties doing so because of immigration restrictions. What might have been a case of family reunifijication may in fact arise as a case of family separation merely as a matter of luck: the relevant family member has not been deported yet, for example, or has illegally crossed a border to return after being deported. When thinking of family reunifijication, two EU law instruments come to mind. The fijirst, Directive 2003/86, is the so-called ‘family reunifijication directive’, which concerns the third-country national family members of certain third-country nationals living in the EU. The second EU instrument is Directive 2004/38, which covers the rights of EU citizens who are exercising their Treaty right to free movement in another EU Member State, allowing them to be joined in the host State by family members. It is certainly the case in the United Kingdom that the family reunifijication rights of EU migrants are often much more advantageous than the family reunifijication rights of host State (i.e. UK) nationals. So, for example, a British Citizen who has always lived in the United Kingdom and wants to secure an entry visa for his Pakistani wife cannot do so unless she passes an English-language test and is at least 21 years-old, and the couple pay considerable fees.11 However, a Dutch citizen living and working in the United Kingdom will be able to get his Pakistani wife an ‘EEA family permit’ to enter the United Kingdom and a residence card once she is there, without having to pay any fees or meet any other requirement then showing that they are married and that he is in the United Kingdom and exercising a Treaty rights (e.g. working or self-employed).12 In relation to the European Convention on Human Rights, the phrase family reunifijication recalls judgments like Tuquablo-Tekle v the Netherlands,13 which involved a 11

UK Immigration Rules, para 281 accessed 25 August 2014.

12

Directive (EC) 2004/38 of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] L158/77, Art 5(2); Regulation 11(4) Immigration (European Economic Area) Regulations 2006.

13

Tuquablo-Tekle v the Netherlands App no 60665/00 (ECtHR, 1 December 2005).

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mother who fled from Ethiopia to Norway, but had to leave her children behind. She was able to secure entry visas for her children but only her son was able to join her. Mother and son then moved to the Netherlands, following the mother’s marriage to an Ethiopian refugee there. The mother then applied for an entry visa for her left-behind daughter. This was refused, on the basis that the daughter – by then fijifteen years-old – no longer needed her mother’s care. The ECtHR found a violation of Article 8 of the Convention because there was an unjustifijied interference with the applicant’s right to respect for family life: in particular, the mother was unable to take important decisions for her daughter, like whether she would get married, which she might at that age in Ethiopia. Another case that comes to mind is Gül v Switzerland.14 It involved a Turkish national who fled to Switzerland, seeking asylum, and who was refused refugee status but allowed to remain; his wife, who was ill and needed treatment she could not receive in Turkey, later joined him there. Their children were left behind, and they had another child in Switzerland. The Court found that there was no interference with the right to respect for family life, because the family could have returned to Turkey to take up family life with their children there again and did not have permanent-resident status in Turkey. Those are the typical cases of ‘family reunifijication’. But there are other, similar cases, where what people want is not to be reunited, but rather to avoid being separated in the fijirst place, or separated again. For example, the AIRE Centre represented the applicant in a case before the ECtHR, Osman v Denmark.15 The applicant, from Somalia, was residing legally in Denmark, along with the rest of her family. Her parents had divorced and she was living with her mother. She had problems in school and she was fijinally expelled at the age of 14. Her father, objecting to her behaviour, told her mother he was going to take her on a few weeks’ holiday to see his mother – her grandmother – in Kenya. The applicant’s mother consented and father and daughter travelled to Kenya. The applicant’s father then left her at a refugee camp in Kenya to look after her grandmother. After two and a half years, the applicant was able to leave and went to the Danish Embassy in Nairobi to get a new entry visa to join her mother and stepmother. She was refused, because by then she was 17 years old, and in the meantime the law in Denmark had changed, restricting this kind of family-reunifijication visa to those under the age of fijifteen. This looks like a case of family reunifijication. However, in the meantime the applicant clandestinely re-entered Denmark; she was not threatened with expulsion, but lived as an undocumented migrant, and claimed that the refusal to regularise her status violated her Convention rights. The ECtHR found in her favour. 14

Gül v Switzerland App no 23218/94 (ECtHR, 22 January 1996).

15

Osman v Denmark App no 38058/09 (ECtHR, 14 June 2011).

Family Reunification at the Interface of EU Law and the ECHR

Indeed, the Article 8 case law of the European Court of Human Rights has to some extent minimised the diffference between family separation and family reunifijication. In Maslov v Austria, the Grand Chamber of the European Court of Human Rights made clear that the time to take into consideration for determining whether someone being expelled enjoys ‘family life’ in the country expelling her/him is when the expulsion order becomes fijinal.16 As a result, when determining whether there is family life under Article 8 in such cases, it makes no diffference whether the person has already been expelled or is facing expulsion in the future. In relation to the question of whether the expulsion was or would be proportionate, the ECtHR has found that where the expulsion has already taken place, the moment in time to consider this issue is when the expulsion happened; where an expulsion has not yet taken place, the time is when the Court considers the case. In the case of an unmarried young adult facing expulsion, over time that person’s ties to his family in the State that wants to expel him may grow stronger, making it harder to expel him, but he may also become more independent, making expulsion proportionate by the time the Strasbourg Court fijinally hears his case, which might be three or four or fijive years later. In other words, whether it is a case of family reunifijication or family separation, it must be considered individually. There are other complicated examples that fall into the rubric of family reunifijication. International child abduction leads to left-behind parents trying desperately to be reunited with their children in the country they were living before. A husband and wife being extradited to another country, leaving their children behind, might argue that they should not be handed over, so that they can stay in the same country as their children. Those two examples are addressed in Section IV and V below. The next part focuses however on these cases of immigration and family reunifijication/ separation/formation. III.

Family Reunification and Immigration

This Section deals with the approaches of the ECtHR and Court of Justice to cases where a family has not been able to re-unite in Europe, or where a family in Europe is threatened with or has actually been separated due to the expulsion of one or more of its members. Although the European Court of Human Rights has frequently said that States enjoy a margin of appreciation in expulsion cases under Article 8 of the ECHR, that appreciation goes hand-in-hand with European supervision from the ECtHR.17 The 16

Maslov v Austria App no 1638/03 (ECtHR, 23 June 2008).

17

See eg Maslov (n 16) [76].

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ECtHR’s approach to cases like this could fairly be described as demanding a highly individualised consideration with a high level of European supervision: recent cases suggest that there is more European supervision, in fact, than margin of appreciation. The standards for this highly individualised consideration were set out in Üner v the Netherlands, a Grand Chamber judgment involving an individual who had been residing lawfully in the State and faced expulsion on the basis of having committed a criminal offfence.18 These criteria, as reproduced in paragraph 40 of the Chamber judgment in the present case, are the following: – the nature and seriousness of the offfence committed by the applicant; – the length of the applicant’s stay in the country from which he or she is to be expelled; – the time elapsed since the offfence was committed and the applicant’s conduct during that period; – the nationalities of the various persons concerned; – the applicant’s family situation, such as the length of the marriage, and other factors expressing the efffectiveness of a couple’s family life; – whether the spouse knew about the offfence at the time when he or she entered into a family relationship; – whether there are children of the marriage, and if so, their age; and – the seriousness of the difffijiculties which the spouse is likely to encounter in the country to which the applicant is to be expelled. That judgment could have been expected to provide sufffijicient guidance to national courts and authorities to exercise their margin of appreciation in a way that would not require frequent European supervision by the ECtHR. However, since Üner the Court has continued to fijind violations, and individuals, particularly long-term migrants who have committed criminal offfences and are facing expulsion, continue to bring their cases, confijident that the ECtHR will fijind a violation.19 The Maslov judgment in 2008 clarifijied the Üner criteria in relation to young, single adults with family in the country from which they are being expelled: In a case like the present one, where the person to be expelled is a young adult who has not yet founded a family of his own, the relevant criteria are: the nature and seriousness of the offfence committed by the applicant; the length of the applicant’s stay in the 18

Üner v The Netherlands App no 46410/99 (ECtHR, 18 October 2006) [57].

19

See eg A.A. v United Kingdom App no 8000/08 (ECtHR, 20 September 2011).

Family Reunification at the Interface of EU Law and the ECHR country from which he or she is to be expelled; the time elapsed since the offfence was committed and the applicant’s conduct during that period; and the solidity of social, cultural and family ties with the host country and with the country of destination.20

Since then, though, other ECtHR judgments have indicated that European supervision is still necessary even in this more specifijic area. In Onur v United Kingdom,21 the applicant was a Turkish national who entered the United Kingdom as an asylum seeker at the age of eleven and was granted, along with his family, exceptional leave to remain (not asylum). He had a six-year relationship with a British woman and had a child with her. He committed a string of offfences (including burglary and possession of marijuana), culminating in robbery; his daughter was born whilst he was in prison. The ECtHR found that his expulsion to Turkey did not represent an unjustifijied interference with his right to respect for family life, and so would not violate Article 8 ECHR. That was in February 2009. In Khan v United Kingdom, decided about eleven months later, the applicant, a Pakistani national, had entered the United Kingdom aged three and was granted indefijinite leave to remain (permanent residence) on arrival as his father was already settled in the United Kingdom. Following two earlier fraud offfences, the applicant was convicted of attempting to import 2.5 kilos of heroin. After being released from prison, he had a child with a British Citizen.22 Without according ‘decisive weight’ to the family relationship, the Court nonetheless found, in the light of his long stay in the United Kingdom, that his expulsion would violate Article 8. In Bousarra v France, where the applicant had committed drugs offfences, the Court focused on the very long time he had spent in France – he had essentially not known any other country, having arrived there at the age of three weeks – his strong ties, and again the length of the exclusion order, which in that case was indefijinite.23 In Joseph Grant v United Kingdom, the balance went against the applicant because of the sheer number of offfences he had committed over a long period of time, many of which were the result of his addiction to heroin.24 The Court also noted that Jamaica was an English-speaking country and that the applicant’s family had maintained ties with their family there. There is logic in these judgments, but national judges could be forgiven for not being able to decide with certainty how Article 8 applies to such cases, and migrants facing expulsion in similar circumstances could certainly be forgiven for believing 20

Maslov (n 16) [71].

21

Onur v The United Kingdom App no 27319/07 (ECtHR, 17 February 2009).

22

Khan A.W. v The United Kingdom App no 47486/06 (ECthR, 12 January 2010).

23

Bousarra c. France App no 25672/07 (ECtHR, 23 September 2010).

24

Joseph Grant v The United Kingdom App no 10606/07 (ECtHR, 8 January 2009).

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they may get the result they want out of the ECtHR when they are unsuccessful before those bewildered national judges.25 Looking at some of the ECtHR’s judgments in expulsion cases where the person concerned simply did not have permission to stay in the country, or where the only offfences were administrative offfences related to the person’s immigration status, the Court has taken a similar fact-intensive case-by-case approach. The TuquaboTekle case, where the ECtHR looked very closely at the personal situation of the individuals involved, was discussed above. In Darren Omoregie v Norway, the Court examined the case of a failed asylum-seeker in Norway married to a Norwegian citizen and who had a child with her, and focused on the fact that at no time could the couple have expected that he would be allowed to stay in Norway.26 The Chamber split, 5–2, with the dissenting judges fijinding such an expectation had been created when the couple were allowed to marry which, it appears, they technically should not have been permitted to do since he did not have immigration status at the time, bringing in issues of family formation. In Rodriguez da Silva and Hoogkamer v Netherlands, a Brazilian woman joined her partner in the Netherlands but never regularised her status, even though she may have been eligible to do so.27 The couple had a child; after the couple’s relationship ended, responsibility for the child was shared between the mother and paternal grandparents. The ECtHR found that there was a violation of Article 8, in large part because it was not likely that the mother would get the father’s permission to take the child to Brazil. All of this suggests case-by-case balancing approach, with specifijic European criteria and strong European supervision by the Strasbourg Court. In contrast, EU law takes a much more categorical approach, not so much balancing as fijinding a right answer from a series of logical propositions. In part this may results from the existence of more detailed rules in EU law and, perhaps more importantly, the style of the Court of Justice judgments, which are arrived at based on consensus, with no dissents, and are written in a pared-down, matter-offact style, leaving one searching for meaning in the Advocate General’s Opinion or elsewhere. The recent Zambrano judgment of the Court of Justice, is a helpful example.28 The case concerned a Colombian couple who had come to Belgium with their child and then had two more children whilst living there; the two children born in Belgium were Belgian (and therefore EU) citizens by virtue of the Belgian 25

A.A. (n 20).

26

Darren Omoregie and Others v Norway App no 265/07 (ECtHR, 31 July 2008).

27

Rodriguez da Silva and Hoogkamer v Netherlands App no 50435/99 (ECtHR, 31 January 2006).

28

Case C-34/09, Gerardo Ruiz Zambrano v Office national de l’emploi [2011] ECRF 1177.

Family Reunification at the Interface of EU Law and the ECHR

law applicable at the time. The parents did not have regular immigration status in Belgium, although the Belgian authorities made it clear that they did not intend to expel them. The case arose in the context of the father’s eligibility for unemployment benefijits, which was dependent on his having the right to work. It is doubtful that the European Convention on Human Rights could have helped this family. Even if it was found that their return to Colombia was unlawful, because it would violated Article 3 ECHR, the European Convention on Human Rights does not guarantee migrants any kind of status or the right to work. But the Court of Justice easily found that this parent did have the right to work, as to fijind otherwise would result in the Belgian-citizen children having to leave Belgium to go to Colombia. This might have been seen as a surprising – even shocking, to some EU Member States – reversal of the previous doctrine of ‘wholly internal situations’, given that these were Belgian citizen children who had only ever lived in Belgium. Yet the Court of Justice found that there would be a violation of their citizenship rights, following the Advocate General’s Opinion. This seems to be more about crossing thresholds – is there a deprivation of the ‘genuine’ enjoyment of citizenship rights? – than about the balancing exercise the European Court of Human Rights engages in under Article 8. The Court of Justice reasoning also distinguishes itself by viewing everything from the perspective of the citizen family member, a perspective which does not appear in the ECtHR case law.29 Zambrano is typical of the purposive style of interpreting EU law. This reasoning is typical of other family reunifijication/separation cases involving EU law. In the Metock judgment, for example, the Court of Justice found that where EU migrant workers marry illegal entrants or failed asylum seekers in the host state, those family relationships must be respected.30 The Carpenter case, involving the third-country national wife of a British citizen living in the United Kingdom, but providing services around the Union.31 This EU logic of purposive interpretation, with binary results coming from logical propositions32 is not opposed to the ECHR logic, but they do not exactly match up. Whereas the ECHR balances the legitimate aim pursued by the State – usually ‘the economic well-being of the country’, in line with Article 8(2) of the Convention, against the individuals’ interests, the Court of Justice has tended only to look at the 29 30

See eg O and OL v United Kingdom App no 11970/86 (Commission Decision, 13 July 1987). Case C-127/08, Blaise Baheten Metock and Others v Minister for Justice, Equality and Law Reform [2008] ECR I-6241.

31

Case C-60/00, Mary Carpenter v Secretary of State for the Home Department [2002] ECR I-6279.

32

See also Case C-578/08, Rhimou Chakroun v Minister van Buitenlandse Zaken [2010] ECR I-1839.

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teleological aim of the legislation and whether the State’s action in keeping families apart undermines it. The two logics – ECtHR and Court of Justice – may lead to the same result in some cases: for example, if the Zambranos were facing removal from Belgium, and their Belgian citizen children were well-established there and a bit older, perhaps the European Court of Human Rights might have found a violation had the case come before it because of the interference with the children’s right to respect for family and private life in Belgium; but the circumstances would probably have to disclose something a bit more compelling. Likewise, in the even-more recent McCarthy judgment, the Court of Justice refused to fijind that the Jamaican spouse of a dualnational British and Irish citizen had any rights to stay in the United Kingdom under European Union law; although the two judgments (Zambrano and McCarthy) are frustratingly terse, it appears that there is an underlying balancing going on, with weight given to the fact that in Zambrano the citizens were children, whereas in McCarthy the citizen was an adult. Beneath the facade of ineluctable EU-law logic there may be some ECtHR-style, case-by-case balancing going on in Luxembourg. It will be interesting to see how these two logics will interact in the increasing number of immigration cases that touch on family reunifijication issues and raise issues at the interface of EU law and the ECHR. For example, when Member States try to expel EU migrants or family members of EU migrants who have committed criminal offfences, they must apply both Article 8 ECHR and the provisions of Directive 2004/38 that deal with those expulsions. Consider the Maslov case:33 it involved a Bulgarian youth offfender expelled from Austria. At the time he was expelled the applicant was not an EU citizen, but by the time the European Court of Human Rights heard his case, he was, because Bulgaria had joined the EU by then, on 1 January 2007. The applicant had been expelled before that date, but if he had not yet been expelled at the time the ECtHR considered his case, there would have been a question – essentially of a more mathematical or logical nature – whether the applicant had been resident in Austria for the ten previous years, making him ineligible for deportation unless there were ‘imperative grounds of public security’.34 Interestingly, when the ECtHR considered the Maslov case they focused on the fact that the applicant had a re-entry ban of ten years, which they found disproportionate. But under EU law, of course, from 1 January 2007 that re-entry ban would probably have to be rescinded; in any event, under Article 32(1) of Directive 2004/38, the applicant would have to be allowed, after no more than three years, to apply to have the exclusion 33

Maslov (n 16).

34

Directive 2004/38/EC (n 12), Art 28(3)(a).

Family Reunification at the Interface of EU Law and the ECHR

order rescinded. The ECtHR, strangely, made no mention of any of this. In the area of expulsions of criminals, there has also been some convergence between the approaches of EU law and the ECHR, with, the Court of Justice abandoning its purposive logic in favour of an ECHR-like balancing approach. In respect of drugs offfences, for example, the Court of Justice has for many years mandated an individualised weighing of the risk an EU migrant drug offfender poses to society.35 In the recent Tsakouridis case, the Court of Justice found that it might be permissible to expel an EU citizen who had been engaged in the narcotics trade, even where the person – in that case a Greek citizen in Germany – had resided in the country for ten years, entitling him to the highest level of protection from expulsion. The Court of Justice’s approach reflects the approach of the ECHR, which has allowed States to take a hard line on immigration drug offfenders,36 although the Court of Justice is more handsofff in its European supervision, leaving the ultimate decision to the national court.37 Zambrano itself has potentially expanded the interface between EU law and the ECHR enormously in relation to family reunifijication issues, by expanding the group of third-country nationals facing expulsion from EU Member States who may be able to take advantage of EU law in order to claim a right to stay. The case of Malla v United Kingdom, in which the AIRE Centre is currently representing the applicant before the European Court of Human Rights, is a useful example.38 The applicant was a failed asylum seeker from Cameroon who had a child in the United Kingdom with a Congolese national, who has a right of permanent residence in the United Kingdom; the child is a British Citizen by operation of UK nationality law. When the applicant had a nervous breakdown in the immigration detention centre, where she was detained with her child, the local authority in England took the child away from her and placed the child with her father. The applicant was then expelled. She was left to argue that she fell on the right side of the ECtHR case law. What now though of the child’s EU citizenship rights? Is it enough that the child has a parent in the United Kingdom, to require the mother’s return? As a matter of EU law (Zambrano), is it unacceptable to make the child potentially sacrifijice her EU citizenship rights to live with her mother? If she needs to go to Cameroon to have contact with her mother, is that a violation of her EU citizenship rights, since during that time, even if it is just a few weeks or days a year, she is outside Europe and therefore unable to benefijit from the full extent of her EU citizenship? Should national courts balance the interference with her citizenship 35

See eg Case C-348/96, Criminal proceedings against Donatella Calfa [1999] ECR I-11.

36

See Joseph Grant (n 24).

37

Case C-145/09, Land Baden-Württemberg v Panagiotis Tsakouridis [2010] ECR I-11979.

38

Tsakouridis ( n 37).

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rights with the legitimate aim the United Kingdom is pursuing, by protecting the economic well-being of the United Kingdom? Such a balancing logic is closer to ECHR law. IV.

Wrongful Removal Or Retention Of Children

This part deals with the wrongful removal or retention of children, or, as they are more commonly known, international child abduction. These are cases where it is alleged that a parent has removed a child from her/his jurisdiction of habitual residence, or retained that child outside the jurisdiction of habitual residence, in breach of the ‘rights of custody’ or another person or institution, and where proceedings are taken in the country where the child is currently residing to bring that child back.39 These cases, at an emotional level and viewed from the perspective of human rights law, are essentially about family reunifijication. In reality, of course, returning child to the jurisdiction where she was habitually resident does not resolve the matter of which parent the child will actually reside with and what kind of contact the child will have with the other parent. Indeed, from a practical perspective, returns of wrongfully abducted or retained children might be seen as simply returning the child to the jurisdiction whose courts are competent to take decisions about residence and contact. It may be that the courts of that State decide that the child is to reside with the abducting parent, in the country to which that parent abducted her, and to have very little contact with that parent who was left behind when the abduction occurred. However, as it becomes clear when reading the cases and attending the court hearings, these are in fact human stories of left-behind parents seeking to be reunited with their children in the country in which they were living before being wrongfully separated. When one of the countries involved in the wrongful retention or wrongful removal of a child is an EU Member State, there are three overlapping legal orders that apply: international law, in the form of the Hague Convention on the Civil Aspects of International Child Abduction (‘the Hague Convention’) – which sets out rules for the return of children who have been wrongfully removed or retained; EU law – namely Regulation 2201/2003, the so-called Brussels II bis Regulation, which provides detailed rules for determining which EU Member State’s courts have jurisdiction in matters concerning, residence and contact with children and strengthens and supplants some of the provisions of the Hague Convention when EU Member States are involved; and thirdly, Council of Europe law – specifijically Article 8 of the European Convention on Human Rights, which is involved because in virtually every case where the courts of a Member State order – or do not order – the return of 39

Marlyse Bienvenue Malla v The United Kingdom App no 19159/08 (ECtHR, 6 September 2011).

Family Reunification at the Interface of EU Law and the ECHR

a wrongfully removed or retained child, the right to respect for family life is engaged. National law, which determines whether an abduction has been ‘wrongful’ or not, is also involved. The following table lists the case law from the organs of the European Convention on Human Rights relating to situations involving the wrongful removal or wrongful retention of a child and the application of the Hague Convention to those cases. Left-Behind Parent Brought Application – Violation Found Bajrami v Albania

Left-Behind Parent Brought Application – No Violation Found Balbontin v UK (dec)

Bianchi v Switzerland Bayerl v Germany (dec) Carlson v Switzerland Guichard v France (dec) Deak v Romania & Kajari v Finland UK Dore v Portugal Kozlowski v Poland (dec) H.N. v Poland Larson v Sweden (dec) Iglesias Gil & AUI v Laylle v Germany Spain (dec) Ignaccolo-Zenide v Lazrak v France (dec) Romania Iosub Caras v R.R. v Romania Romania Karadžić v Croatia Raban v Romania Karoussiotis v Portugal Maire v Portugal

Serghides v Poland Tapia Gasca & D v Spain

Monory v Romania & Hungary Ovus v Turkey P.P. v Poland Stochlak v Poland Sylvester v Austria Note: (dec) = inadmissibility decision

Abducting Parent Brought Application – Violation Found Neulinger & Shuruk v Switzerland (Grand Chamber)

Abducting Parent Brought Application – No Violation Found A.B. v France

Eskinazi & Chelouche v Turkey (dec) Göçmen v Turkey (dec) Levadna v Ukraine (dec) Lipkowsky v Germany (dec) Mattenklott v Germany (dec) Paradis v Germany (dec) Paradis v Germany (no 2) (dec) Sogn K. v Norway & Greece (dec) Tiemann v France & Germany (dec) Van Den Berg v Netheralnds (dec)

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This table only includes judgments on the merits on the one hand and inadmissibility decisions where the Court found that the application was ‘manifestly illfounded’40 on the other. Inadmissibility decisions where the applicant had failed to exhaust domestic remedies or had missed the six-month deadline are not included. There were no admissibility decisions that did not involve cases that subsequently led to a judgment on the merits. The cases are sorted into four groups: applications brought by left-behind parents where a violation of the ECHR was found (always a violation of Article 8 or Article 6, or both); applications brought by left-behind parents where no violation was found, including a number of inadmissibility decisions; applications brought by the parent who has wrongfully removed or retained the child from the jurisdiction (‘abductors’) where a violation has been found; and applications brought by abductors where no violation has been found. These cases could be divided this up diffferently, or more precisely: for example, focusing on whether the State against which the application was brought was the (former) state of habitual residence or the state where the child was present, or both, as in Deak v Romania and the United Kingdom. 41 This classifijication nonetheless highlights something interesting: there is only one case where the Strasbourg Court has found that an abducting parent was, or, to be more accurate, would be, a victim of a violation of the Convention: Neulinger and Shuruk (the only Grand Chamber judgment on this subject). Before explaining why this is interesting, it is worth noting that Hague cases appear to be a growth area for the European Court of Human Rights, which is delivering more decisions and, in particular, more judgments as time goes on. The graph below, looking at the number of judgments and decision on Hague cases coming from the Court, illustrates this:

40

Art 35(3)(a) ECHR

41

Deak v Romania and the United Kingdom App no 19055/05 (ECtHR, 3 June 2008).

Family Reunification at the Interface of EU Law and the ECHR

Figure 1.

The characteristic of most of the Strasbourg Court’s jurisprudence in this area – what we fijind in columns one, two and four – is a strong commitment to the correct application of the Hague Convention. This makes sense when looking at the content of Article 8. Virtually any decision to return or not to return a child to her/his former place of habitual residence can be characterised as an interference with the left-behind parent’s, or the abducting parent’s, right to respect for family life, meaning that Article 8 ECHR is engaged. In order for an interference with the right to respect for family life to be permissible, in accordance with Article 8(2) ECHR, it must, among other things, be ‘in accordance with the law’. In these cases, the Hague Convention is the law; so the ECtHR is doing its job to make sure that States are abiding by the Hague Convention, as Article 8 requires. The Brussels II bis Regulation, if it is applicable, is also the law, and the ECtHR may fijind itself ensuring compliance with that instrument as well. 42 It is fair to characterise much of this case law as essentially the Strasbourg Court policing national courts’ compliance with the Hague Convention and now, where applicable, the Brussels II bis Regulation. One case typical of this trend is Monory v Romania and Hungary, 43 involving an abduction from Hungary to Romania. Here, the Court noted that the Romanian courts had completely misunderstood what they were supposed to do: under the Hague Convention, they were meant to determine whether the child had been removed in breach of rights of custody, rights defijined by Hungarian law. Instead they apparently used Romanian law. Misapplication of the Hague Convention resulted, it appears from the judgment, in the fijinding of an Article 8 violation. In other cases 42

See eg Karoussiotis v Portugal App no 23205/08 (ECtHR, 1 February 2011) [85].

43

Monory v Romania And Hungary App no 71099/01 (ECtHR, 5 April 2005).

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where parents were separated from their children, but not in violation of rights of custody, the Court has found no violation as, indeed, in such circumstances, the Hague Convention does not apply. This was the situation in Balbontin v UK, 44 for example, an unmarried father whose child was taken by its mother to Italy had his case in Strasbourg rejected: he wanted an order from the English courts that the removal was wrongful, but under English law in force at the time, because the father was unmarried and had never asked an English court for rights of custody, he had no such rights, meaning the removal of the child from the jurisdiction was not wrongful. In other cases, where an abducting parent was detained in order to compel him/her to return the children, the Court has rejected applications from those parents, because the State was acting within its margin of appreciation to enforce a Hague return.45 Where the authorities have not acted swiftly to locate wrongfully removed or retained children, undermining the purpose and functioning of the Hague Convention and may constitute a violation of Article 8. 46 By being faithful to the Hague Convention, the Court could be characterised as acting in favour of the return of abducted children, because the Hague Convention itself of course favours such returns, the main exception being where ‘there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.’ 47 Neulinger and Shuruk v Switzerland, 48 which was handed down in July 2010, marks a shift away from policing respect for the Hague Convention. The case involved a Swiss citizen married to an Israeli; the couple lived in Israel, where they had a son. Following breakdown of the marriage, she (the Swiss citizen) clandestinely left Israel for Switzerland with their son. The Swiss (cantonal) courts, called upon to order the child’s return, characterised the removal of the child from Israel as wrongful; but they did not order return, fijinding a grave risk that the child would be exposed to psychological harm on return. The father successfully brought a claim in Swiss federal court to overturn the cantonal rulings and secure the child’s immediate return to Israel; the federal court found that the cantonal courts had only examined the return of the child to Israel without the mother, yet found that the mother did not provide any objective reasons for refusing to go back to Israel. The European Court of Human Rights indicated to the Swiss Government under Rule 39 of the Rules of Court not to carry out the federal court order to return the child to 44

Balbontin v The United Kingdom App no 39067/97 (ECtHR, 14 September 1999).

45

See eg Paradis v Germany App no 4065/04 (ECtHR, 4 September 2007).

46

See eg Karoussiotis (n 42).

47

Hague Convention (signed 25 October 1980, entered into force 1 December 1983) Art 13(b).

48

Neulinger and Shuruk v Switzerland App no 41615/07 (ECtHR, 6 July 2010).

Family Reunification at the Interface of EU Law and the ECHR

Israel whilst the Court examined the case. The Court then examined the case – like a criminal expulsion case – with reference to the proportionality of the return of the child at the time of the judgment, and noted the following: If [the return] is enforced a certain time after the child’s abduction, that may undermine, in particular, the pertinence of the Hague Convention in such a situation, it being essentially an instrument of a procedural nature and not a human rights treaty protecting individuals on an objective basis. Moreover, whilst under Article 12, second paragraph, of the Hague Convention, a judicial or administrative authority before which the case is brought after the one-year period provided for in the fijirst paragraph must order the child’s return, this is not so if it is demonstrated that the child is now settled in his or her new environment. 49

This appears harmless, but the Court’s reference to Article 12 of the Hague Convention is strange, because that provision only governs Hague proceedings brought after a year has elapsed since the abduction; that was not the case here. In fact, the Court’s judgment could be read as deeply undermining the Hague Convention, and it directly contradicts something the Court said in the past in several past Hague cases, namely, that ‘efffective respect for family life requires that future relations between parent and child not be determined by the mere efffluxion of time’.50 As Judge Zupančič pointed out in his dissenting opinion in Neulinger,51 the factual elements in favour of non-return in the case of Maumousseau and Washington v France,52 a case brought by an abducting mother who was ordered to return her child from France to New York State, were much more compelling, and yet the Court did not fijind a violation there. He asserted that the majority were disingenuous in pretending that they were relying on Maumousseau when they were actually overturning it. These cases have begun to make their way to the Court of Justice as well, under the Brussels II bis Regulation. The following is selected text showing the relationship between the Hague Convention and the Brussels II bis Regulation:

49

Neulinger (n 48) [145].

50

Sylvester v Austria App no 36812/97; 40104/98 (ECtHR, 24 April 2003).

51

Neulinger (n 48).

52

Maumousseau and Washington v France App no 39388/05 (ECtHR, 6 December 2007).

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Chapter 7 – Adam Weiss Brussels II bis Regulation, Article 11 Return of the child 1. Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter “the 1980 Hague Convention”), in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply. ... 3. A court to which an application for return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law. Without prejudice to the fijirst subparagraph, the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged. 4. A court cannot refuse to return a child on the basis of Article 13b of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return. 5. A court cannot refuse to return a child unless the person who requested the return of the child has been given an opportunity to be heard. ...

Hague Convention Articles 11 and 13 Article 11 The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be. Article 13 Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that– a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or  b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it fijinds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

Brussels II bis also allows the courts of a Member State from which a child has been abducted efffectively to overrule the decision of the courts of the Member State to

Family Reunification at the Interface of EU Law and the ECHR

which the child has been abducted to refuse to order the return on the grounds that there is a grave risk of harm.53 Like most of the (pre-Neulinger) case law of the ECtHR in this area, the Court of Justice has taken a very procedural approach that appears to favour return. The Court of Justice has not permitted any exceptions to Brussels II bis’s procedural rules, despite pleas of human rights violations and, specifijically, pleas that mechanical operation of the Regulation’s rules will result in a violation of the rights of the child. In the Aguirre Zarraga case,54 a judgment from December 2010, a German court had refused to order the return of an abducted child to Spain, citing a grave risk of psychological harm; a Spanish court, in accordance with the Regulation’s mechanisms, issued a certifijicate overruling the German court’s decision. The German court did not wish to accept the certifijicate and alleged, in its order for reference to the Court of Justice, that the Spanish court had not complied with the provisions of the Regulation when it made the certifijicate. The Court of Justice refused to permit any derogation from the procedural provisions of the Regulation: any flaws in the Spanish court proceedings would have to be taken up in Spain. In Povse,55 the Court of Justice interpreted the circumstances in which the courts of the State from which the child had been abducted lost its jurisdiction over the substance of the case – that is, residence and custody issues – very narrowly. Likewise, in the McB litigation the Court of Justice was faced with a left-behind father in Ireland whose children had been taken to England; except that as a matter of Irish law, because he was not married to the children’s mother, and had never asked an Irish court to confijirm his parental responsibility, the removal was not in violation of his rights of custody.56 The Court of Justice explicitly invoked the Strasbourg Court’s pre-Neulinger case law that this was acceptable.57 Were it not for the Neulinger and Shuruk judgment, suggesting a departure from respecting the Hague Convention’s procedural rules, the Hague Convention, the Brussels II bis Regulations and Article 8 ECHR might have enjoyed a harmonious co-existence. They still may: in extra-judicial comments delivered at a conference following the judgment, ECtHR President Costa noted that the issue in the Neulinger and Shuruk was the passage of time, which in that case was particularly exacerbated 53

Council Regulation (EC) 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 [2003] OJ L338/1, Arts 11(8) and 42.

54

Case C-491/10 PPU Joseba Andoni Aguirre Zarraga v Simone Pelz [2010] ECR I-14247.

55

Case C-211/10 PPU, Doris Povse v Mauro Alpago [2010] ECR I-6669.

56

Case C-400/10 PPU, J. McB. v L. E. [2010] ECR I-8965.

57

Id.

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by the ECtHR: fijirst a Chamber of the ECtHR heard the case, followed by a Grand Chamber, meaning that fijive years had passed since the abduction, and three years had passed since the fijinal court decision in Switzerland ordering the child’s return. Throughout that entire period, the ECtHR kept in place an interim measure preventing the Swiss authorities from enforcing the Swiss federal court’s decision that the child should be returned. As President Costa put it: Neulinger and Shuruk does not therefore signal a change of direction at Strasbourg in the area of child abduction. Rather it afffijirms the consonance of the overarching guarantees of Article 8 with the international text of reference, the Hague Convention. Indeed, it is hard to think of a better example of how the Strasbourg Court looks to a specifijic international text in order to inform its interpretation of more general Convention provisions (as per Article 31(3)(c) of the Vienna Convention on the Law of Treaties).58

Following Neulinger and Shuruk the ECtHR has indeed tried to avoid similar situations arising. In a recent inadmissibility decision involving an application brought by an abducting parent claiming she has faced physical abuse from the left-behind parent, the Court dismissed the application quickly as manifestly ill-founded.59 It is not difffijicult to imagine a situation, however, where a court in an EU Member State to which a child has been abducted refuses to order the child’s return because of a grave risk of harm, and then the courts of the EU Member State from which the child has been abducted overrule that using the mechanisms provided for in Brussels II bis, only for the abducting parent to invoke Neulinger and Shuruk, in an attempt to undermine supposedly water-tight EU law rules. This might have particular force in a case like Aguirre Zagarra, where the courts of the Member State from which the child was abducted appear not to have acted in accordance with the Regulation. Will the ECtHR entertain such applications? There are also an increasingly number of cases – two judgments so far this year against Portugal alone60 – on behalf of left-behind parents complaining that the courts or authorities of the EU Member State to which a child has been abducted have not followed the Brussels II bis Regulation properly. This leaves the ECtHR deal58

Jean-Paul Costa, ‘The Best Interests of the Child in the Recent Case-law of the European Court of Human Rights’ (Franco-British-Irish Colloque on Family Law, Dublin, 14 May 2011) accessed 25 August 2014.

59

Lipkowsky and McCormack v Germany App no 26755/10 (ECtHR, 18 January 2011).

60

Karoussiotis (n 43); Dore v Portugal App no 775/08 (ECtHR, 1 February 2011).

Family Reunification at the Interface of EU Law and the ECHR

ing with competing claims from abducting parents – relying perhaps on Neulinger, and left-behind parents, invoking the strict, rule-based approach that characterises most of the ECtHR (and Court of Justice) case law. Lack of individual access to the Court of Justice exacerbates the problem, leaving the ECtHR to interpret EU law through the lens of Article 8 ECHR. V.

Cross-Border Criminal Justice and Family Reunification

This Part deals briefly with family separation and reunifijication in the context of cross-border criminal justice measures. In order to create an area of freedom, security and justice, the EU Member States created the European Arrest Warrant, an expedited procedure for surrendering people from one EU Member State to another for the purpose of conducting a criminal investigation or executing a custodial sentence. The public have received their education on this measure in the United Kingdom through the case of Julian Assange, the founder of Wikileaks, trying to avoid surrender under the European Arrest Warrant to Sweden.61 The European Arrest Warrant is meant to respect human rights.62 The Court of Justice has taken a characteristic by-the-book approach to these returns,63 although the legislation itself that created the Arrest Warrant leaves more flexibility, allowing Member States to refuse to give efffect to warrants in certain circumstances.64 The ECtHR approach to human rights challenges to the operation of the European Arrest Warrant thus far has been to fijind that they will not violate the Convention. In Stapleton v Ireland,65 for example, the ECtHR rejected a claim by someone facing extradition from Ireland to England that he would not receive a fair trial. What remains to be tested, at national and European levels,66 is the relationship between returns under the European Arrest Warrant and the right to respect for family life. There is now one case pending before the ECtHR on this point, involving a Polish mother of four facing return to Poland for an offfence of which she was 61

See eg James Meikle, ‘Julian Assange lodges extradition appeal’, The Guardian (London, 3 March 2011) accessed 25 August 2014.

62

Council Framework Decision 2002/584/JHA of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures between Member States [2002] OJ L190/1, Art 1(3).

63

See eg Case C-123/08, Dominic Wolzenburg [2009] ECR I-09621.

64

See eg Framework Decision 2002/584/JHA (n 62), Art 4.

65

Stapleton v Ireland App no 56588/07 (ECtHR, 4 May 2010).

66

As far as the author is aware.

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convicted in 2005, but for which she has not yet served her sentence. As in Neulinger and Shuruk, time may be the most important factor. From December 2011, EU Member States will also have to implement an EU framework decision67 which, like Council of Europe Additional Protocol to the Convention on the Transfer of Sentenced Persons, Article 3, allows for the compulsory transfer of individuals serving prison sentences in one EU Member State to a prison in another EU Member State. This may also raise issues about the right to respect for family life. Again, because of limited individual access to the Court of Justice, it seems likely these EU law cases are likely to make their way to the ECtHR and, under the terms of the EU Charter of Fundamental Rights; national courts dealing with these cases will also, under the terms of the EU Charter, have to take into account ECtHR case law when dealing with these matters. VI.

Conclusion

The convergence of EU law and the European Convention on Human Rights is a process that has only just begun. The Lisbon Treaty68 on the one hand and Protocol 14 to the European Convention on Human Rights69 on the other have now made the European Union’s accession to the ECHR inevitable, although the details still need to be worked out, including, for example, whether the Court of Justice will have the opportunity to give its view on cases involving Union law before the ECtHR does.70 In the long term, this will lead to the resolution of a lot of the problems described or hinted at above. In the meantime, a growing number of cases will fijind the Court of Justice looking to the ECtHR case law to resolve EU law disputes, and 67

Council Framework Decision 2008/909/JHA of 27 November 2008 on the Application of the Principle of Mutual Recognition to Judgments in Criminal Matters Imposing Custodial Sentences or Measures Involving Deprivation of Liberty for the Purpose of Their Enforcement in the European Union [2008] OJ L327/27, Art 6.

68

TEU Art 6(2) (‘The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms’).

69

ECHR Art 59(2) (added by Protocol 14) (‘The European Union may accede to this Convention’).

70

The documents of the Informal Working Group on the Accession of the European Union to the Convention, known as the ‘CDDH-UE’, can be found at accessed 25 August 2014. They include proposals for the involvement of the Court of Justice in cases pending before the ECtHR that raise issues of EU law.

Family Reunification at the Interface of EU Law and the ECHR

the ECtHR will increasingly have to interpret EU law in order to determine if EU Member States have violated the ECHR. Family reunifijication is just one area of law that highlights this trend. The convergence of EU law and the ECHR is a welcome development, ensuring greater protection, for example, in circumstances where EU Member States violate human rights by misapplying EU law, or by giving individuals the possibility of addressing concerns about EU law to a forum – the ECHR – whose sole concern is the protection of human rights. The next few years are nonetheless likely to give rise to some confusion, as the Court of Justice and ECtHR determine their respective roles and national courts and authorities respond to competing demands from two legal orders addressing the same issues. That confusion is also likely to increase reliance on, and the workload of, the European courts.

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8

The Right to Leave Any Country Including One’s Own Dimitry Kochenov*

I.

Introduction

1.

The General Context

Nationality and territory are connected in many ways. The classical understanding of sovereignty is traditionally rooted in the exercise of authority over people and place.1 A necessary direct consequence of the understanding of the world as inhabited by sovereign countries in charge of separate societies divided by unambiguous borders is the perpetuation of a clear distinction between what is ‘inside’ and what is ‘outside’ both in terms of territory and in terms of people who either ‘belong here’ or ‘not’.2 This vision of the world, which is largely based on the de Vattelian tradition of thinking about international relations and law,3 is very much simplifijied, to say the

*

Dimitry Kochenov is Professor in EU Constitutional Law. Research assistance of Melania Tudorică is gratefully acknowledged.

1

On this connection, see eg Siegfried Wiessner, ‘Blessed by the Ties That Bind: The Nexus between Nationality and Territory’ (1986) 56 Mississippi LJ 447.

2

Philipp Allott, ‘The European Community Is Not the True European Community’ (1991) YLJ 2485, 2491. In the same vein, Juss argues that ‘[f]ree movement as a fundamental right has remained incomplete because of the perceived need by communities to protect themselves from the influx of the “other” who is culturally different’: Satvinder S Juss, ‘Free Movement and the World Order’ (2004) 16 IJRL 289, 294.

3

For analysis see Iain Scobbie, ‘Slouching towards the Holy City: Some Weeds for Philip Allott’ (2005) 16 EJIL 299, and other contributions to this symposium issue.

Sir Richard Plender (ed.), Issues in International Migration Law Copyright 2015 Koninklijke Brill NV. Printed in The Netherlands. ISBN 978-90-04-20851-3 pp. 143-177

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least. Territorial borders, as we know them, are as new, 4 as the clear idea of persons’ belonging to states, which, however neatly described in international law books, has never (and could never) become a perfect reality in practice.5 Taken seriously, the generally embraced doctrinal extreme of sovereignty of States in International Law comes down to a claim to a dichotomy existing between the ‘order inside’ the states and ‘anarchy outside’, as Falk neatly put it.6 Moreover, anarchy cannot possibly be compared with order, whence the claims that no equality of citizens between states can exist or should be protected.7 States, just as people, are so much used to this reality that it is accepted as axiomatic. In this context, it seems only natural for states to try to protect their citizens from the outside anarchy – the reverse of the coin of protecting themselves from the same by controlling the entry of non-nationals.8

4

eg Friedrich Kratochwil, ‘Of Systems, Boundaries, and Territoriality: An Inquiry into the Formation of the State System’ (1986) 39 World Politics 27.

5

Rainer Bauböck, ‘Citizenship and National Identities in the European Union’ (1997) Jean Monnet Working Paper 97/04; Dimitry Kochenov, ‘Mevrouw de Jong Gaat Eten: EU Citizenship and the Culture of Prejudice’ (2011) EUI RSCAS Working Paper 2011/06 accessed 25 August 2014.

6

Richard Falk, ‘The Decline of Citizenship in an Era of Globalization’ (2000) 4 Citizenship Studies 5, 6. See also Allott (n 2) 2491: “[There was] an internal life of society which, put in ideal theoretical terms, could be labelled a rationalist-progressive pursuit of everincreasing well-being for all the people in accordance with a given society’s highest values. And there also was an external life of society, seeking the well-being of the state by any means and at anyone’s expense. And the reality of the relation of the European states over recent centuries reflected the theoretical structure: intrinsically unstable and conflicting, occasionally life-threatening on a very grand scale.”

7

But see Benedict Kingsbury, ‘Sovereignty and Inequality’ (1998) 9 EJIL 599; Dimitry Kochenov, ‘Citizenship without Respect: The EU’s Troubled Equality Ideal’ (2011) Jean Monnet Working Paper 08/11, 71–74. For a stimulating analysis of the possible valid moral grounds for the exclusion of ‘outsiders’ see Rainer Bauböck, ‘Global Justice, Freedom of Movement and Democratic Citizenship’ (2009) 51 Archives Européennes de Sociologie 1; Darrel Moellendorf, ‘Equal Respect and Global Egalitarianism’ (2006)32 Social Theory and Practice 601; Michael Blake, ‘Distributive Justice, State Coercion, and Autonomy’ (2002) 30 Philosophy and Public Affairs 257; Joseph H Carens, ‘Aliens and Citizens: The Case for Open Borders’ (1987) 49 Review of Politics 250, 251.

8

For a general conceptual analysis of people’s movement between States see Juss (n 2).

The Right to Leave Any Country Including One’s Own

Although disputed by some theorists,9 the right of states not to admit unwanted aliens seems to be very well established in the practice of International Law, several truly minor exceptions notwithstanding.10 These are often taken, to agree with Dauvergne, to ‘truly mythic proportions’, which misrepresents their actual place in the context of the regulation of the full scale of world migration.11 Whatever we fijind in the law books, people continue to migrate, no matter how states brand such migration – accepting them, or making them illegal.12 Moving in search of a better life is one of the key drivers behind the development of human civilization.13 It is thus not surprising that sovereign states, new arrivals on the civilizational scene, fail to stop it, which is particularly true of liberal democracies.14 It is only recently that such migration started to be frowned upon. The generally accepted stance is that those unlucky enough to be born in miserable places offfering no possible opportunities to lead decent lives or develop one’s talents should stay where they are without bothering richer nations by the constant attempts to improve their condition. Once a border is drawn, two spaces emerge. Consequently, dividing the right to migrate – if we can at all speak of the existence of such a ‘right’ – into the right to ‘leave’ the space on the one side of the border and the right to enter another space, on the other side, is obviously half-hearted. Scholars have been trying to understand 9

See eg James AR Nafziger, ‘The General Admission of Aliens under International Law’ (1998) 77 AJIL 804. Nafziger argues that there exists ‘a qualified duty to admit aliens’ under international law (at 805).

10

The most important of such exceptions is rooted in the duty to admit refugees. For a detailed account see JC Hathaway, The Rights of Refugees under International Law (CUP 2005); Guy S Goodwin-Gill, The Refugee in International Law (2nd ed, OUP 1996). It is informative, in this regard, that ‘72 per cent of the world’s 12 million refugees are given asylum by the developing countries of the poorer Southern hemisphere’, see Juss (n 2) 308.

11

Catherine Dauvergne, ‘Sovereignty, Migration and the Rule of Law in Global Times’ (2004) 67 Modern LR 588, 596: “[I]t is apparent that the Refugee Convention is a minimal constraint which has taken on mythic proportions at time when control over population movements is shifting to the core of what it means for a nation to be sovereign.”

12

Catherine Dauvergne, Making People Illegal (CUP 2008).

13

Jared Diamond, Guns, Germs, and Steel: The Fates of Human Societies (WW Norton and Co 1997).

14

The reasons are masterfully analyzed in Christian Joppke, ‘Why Liberal States Accept Unwanted Immigration’ (1998) 50 World Politics 266. See also Gary P Freeman, ‘Can Liberal States Control Unwanted Migration?’ (1994) 534 AAPSS 17.

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whether this distinction drawn in international law is ‘perhaps too cynical, or just paradigmatic?’15 Whatever the would-be answer, the two rights only make sense when existing and exercised together, side by side. Yet, faithful to the structure of the international law documents covering the essence of migration as well as following the request of Sir Richard to address only one of the two interconnected rights, this chapter will be entirely dedicated to the right to leave a country – a somewhat more important one of the two, since once leaving is not an option, the issue of not being admitted by a state on the other side of the border will not even arise.16 2.

The Right to Leave and Liberty

Many lives can be cardinally improved by leaving. In line with the idea of ‘voting with one’s feet’,17 the right to move out, to distance yourself, to run away, is one of the most imminent guarantees of human liberty. It is thus only logical that this right is offfijicially recognized, if not protected, by international law, especially given the human rights oriented twist the latter took following the Second World War. In the words of Jagerskiold, ‘for the individual who fijinds his society intolerable, and who has made a difffijicult decision to expatriate himself, denial of this right may be tantamount to a total deprivation of liberty (...). Denial of this right is the source of much 15

Guy S Goodwin-Gill, ‘The Right to Leave, the Right to Return and the Question of the Right to Remain’ in Vera Gowlland-Debbas (ed), The Problem of Refugees in the Light of Contemporary International Law Issues (Kluwer 1996) 93, 97.

16

On the right to leave any country including your own in International Law see also inter alia Colin Harvey and Robert P Barnidge, ‘Human Rights, Free Movement, and the Right to Leave in International Law’ (2007) 10 IJRL 1; Goodwin-Gill (n 15); Horst Hannum, The Right to Leave and Return in International Law and Practice (Martinus Nijhoff 1987); Adviescommissie Mensenrechten en Buitenlands Beleid, Over de grenzen: Het recht een land te verlaten en het recht op terugkeer (ACM 1986); Frederick G Whelan, ‘Citizenship and the Right to Leave’ (1981) 75 APSR 636; Stig Jagerskiold, ‘The Freedom of Movement’ in Louis Henkin (ed), The International Bill of Rights: The Covenant on Civil and Political Rights (Columbia UP 1981) 166; Rona Aybay, ‘The Right to Leave and the Right to Return: The International Aspect of Freedom of Movement’ (1977) 1 Comparative Law Yearbook 121; Rosalyn Higgins, ‘The Right in International Law of an Individual to Enter, Stay in and Leave a Country’ (1973) 49 International Affairs 341.

17

Seith F Kreimer, ‘Federalism and Freedom’ (2011) 574 AAPSS 66; Albert O Hirschman, Exit, Voice, and Loyalty (HUP 1970). See also Dimitry Kochenov, ‘On Options of Citizens and Moral Choices of States’ (2009) 33 FILJ 156.

The Right to Leave Any Country Including One’s Own

unnecessary sufffering around the world’.18 This has been clearly formulated by the US Congress as long ago as in 1868: ‘the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty and pursuit of happiness’.19 In the words of Judge José D. Inglès, the right comes down to ‘personal self-determination’,20 what is echoed in the General Comment No. 27 of the Human Rights Committee, where the right is characterized as ‘an indispensable condition for the free development of a person’.21 By defijinition, a democratic society ‘does not permit physical detention except for past crime, suspected or proven’.22 Holding someone within the borders of a State, be it the Principality of Liechtenstein or the Russian Federation cannot be logically distinguished from depriving someone of liberty, no matter how acute the statemandated fear of the outside anarchy is. The ideal that no one is to be deprived of liberty without any sound reason – even if undermined to some extent by the reality of Guantánamo and Control Orders – remains an important marker of a true democracy holding liberty and freedom in esteem. Consequently, it provides a sound context for the assessment of the right to leave the country in International Law. Even in the world of highly-publicized terror-scare, liberty is precious, and liberty, to agree with Justice Barak, ‘is about higher risk-taking’23 – which certainly applies in the context of international migration law. Generally, agreeing with Juss, it would be naïf to view the twentieth century restrictions on movement as a norm.24 Yet, International Law, as it stands to date, functions in such a way that it is powerless against the current reality, which is overwhelmingly restrictive.

18

Jagerskiold (n 16) 167.

19

Expatriation Act of 27 July 1986.

20

José D Inglès, Study on Discrimination in Respect of the Right of Everyone to Leave Any Coun-

21

UNHRC, ‘General Comment 27: Freedom of Movement (Art.12)’ (1999) UN Doc CCPR/C/21/

22

Leonard B Boudin, ‘The Constitutional Right to Travel’ (1956) 56 Columbia LR 47, 49.

23

The Israeli Civil Liberties Union v Minister of Interior (HCJ 8099/03, 14 May 2006) [51] (with C.J.

try and to Return to His Country (UN 1963). Rev.1/Add .9, para 1.

Barak dissenting). 24

Juss (n 2) 289.

147

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3.

The Structure of This Chapter

Very much has changed in the international regulation of migration since the last edition of Sir Richard’s book on the subject.25 Most importantly, the fall of the Berlin Wall and the deterioration of the USSR changed the whole context of international relations. The wave of democratization of what used to be the Soviet Block coupled with regime changes in South Africa and a number of Latin American countries – the areas of the world where the right to leave was traditionally violated the most – shaped a situation which is much friendlier to those willing to leave their country than what was in place thirty years ago. Not all the recent changes were to the better, however. Although a generally positive trend with regards to the general development of the right to leave can be outlined, numerous problems persist, related to the tightening of the grip on the borders in some dictatorships of the third world, including Azerbaijan and Turkmenistan, for instance, and the general securitization of the whole international migration regulation following the attacks of 9/11. The aforementioned changes notwithstanding, the statement coined by Sir Richard in 1988 still holds: ‘Few liberties are more generally proclaimed or more widely abridged than the right to leave any country, including one’s own’.26 Unable to address all the myriad important legal issues arising in the context of the right to leave the country, this chapter analyses a representative selection of the key aspects related to the nature and the practical functioning of this right. It is structured in the following way. Having provided a brief outline of the key instruments of International Law both at the general and at the regional levels responsible for the formal shaping of the right. he analysis moves on to a brief outline of the history of the right predating the entry into force of the documents described in the fijirst section. The chapter then focuses on the key challenges emerging in the context of the practical operation of the right and looks at the role played by passports in making the right under scrutiny usable in practice. The piece then proceeds to provide a brief assessment of the essential components of the possible limitations of this right (IV.) and concludes with a brief outline of the main fijindings, essentially coming to ask the question whether the right to leave any country including your own is de facto guaranteed in International Law, coming to a mildly negative conclusion.

25

Richard Plender, International Migration Law (2nd ed, Martinus Nijhoff 1988).

26

ibid 95.

The Right to Leave Any Country Including One’s Own

II.

Instruments

As mentioned above, there is no right to movement as such in international law, as it is channeled via a duo of proclaimed rights: the right to leave any country, including one’s own and the right to return to one’s own country. These rights received recognition both in the general International law instruments and in the instruments adopted at the regional level. 1.

At the General Level

At the highest general level the right to leave any country including one’s own is proclaimed in the Universal Declaration on Human Rights of 10 December 1948. Although devoid of a binding legal nature, this instrument is of a paramount importance for the setting up of the whole context of the international human rights regime. The UDHR, in Article 13(2) contains the fijirst ever expressis verbis proclamation of the right to leave known to international law. This provision reads as follows: “Everyone has the right to leave any country, including his own and to return to his country.”27 It is obvious that, notwithstanding the absolute language of this Article, limitations of the right should be possible, which is supported by all the relevant binding documents of international law which followed the UDHR. Such limitations are expressly authorised by the instruments, which outline the essence of the right established by Article 13(2) UDHR in greater detail.28 Most important of such binding elaborations on the statement of principle found in the UDHR is undoubtedly Article 12(2) of the International Covenant on Civil and Political Rights, which states that ‘[e]veryone shall be free to leave any country, including his own’.29 A number of similar provisions of the general international legal documents binding the international community can be named, including the 1965 International Convention on the Elimination of All Forms of Racial Discrimination,

27

EDHR Art 12(2). For the commentary of this provision, see eg Atle Grahl-Madsen, ‘Article 13’ in Asbjørn Eide et al (eds), The Universal Declaration of Human Rights: A Commentary (Scandinavian UP 1993) 203.

28

EDHR s IV.

29

For the commentary of this provision see eg Manfred Nowak, U.N. Covenant on Civil and Political Rights CCPR Commentary (Engel Verlag 1993) 197; Hannum (n 16); Jagerskiold (n 16); Higgins (n 16).

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(Article 5);30 the 1973 Convention on the Suppression and Punishment of the Crime of Apartheid (Article 2(c));31 the 1989 Convention on the Rights of the Child (Article 10(2));32 the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (Article 8(1)),33 and others.34 The wording of all the provisions referred to above is very similar and establishes, with abundant clarity, the essential idea that States should allow people to leave their territory. Such a statement, however fundamental, is confijined merely to sketching the bare essence of this important right, little more. Unavoidably, the general formulations found in all the documents mentioned fail to supply the description of the right which would be detailed enough in order to provide State-parties with practical guidance concerning the essential aspects of this right’s scope and functioning. Although this was evident already from the time of the drafting of the ICCPR, the UN bodies responsible for the practical shaping of the rights enshrined in the ICCPR did not show any haste in their reluctant attempts to fijill the vacuum with substance. The fijirst offfijicial call from the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities for an elaborate study of the right to leave was made in 1953.35 And although such a study, prepared by Judge José D. Inglès, a Special Rapporteur for the Sub-Commission on Prevention of Discrimination and 30

International Convention on the Elimination of All Forms of Racial Discrimination (adopted 21 December 1965, entered into force 4 January 1969) 660 UNTS 195, Art 5 reads as follows: “[T]o prohibit and eliminate racial discrimination in all its forms (...) notably in the enjoyment of the following rights (...): (ii) The right to leave any country, including one’s own, and to return to one’s country.”

31

International Convention on the Suppression and Punishment of the Crime of Apartheid (adopted 30 November 1973, entered into force 18 July 1976) 1015 UNTS 243.

32

Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) (1989) 28 ILM 1448.

33

International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (adopted 18 December 1990, entry into force 1 July 2003) 2220 UNTS 3 (ICRMW).

34

A number of other documents contain provisions relevant for the exercise of the right, including Geneva Convention Relating to the Status of Refugees (on issuing refugees with the travel documents to enable them to go abroad) Art 28; Vienna Convention on Diplomatic Relations (on enabling the persons enjoying immunities to leave the receiving state) Art 44.

35

Hannum (n 16) 13.

The Right to Leave Any Country Including One’s Own

Protection of Minorities of the Human Rights Commission has been ready in 1963,36 the discussion of the study was constantly postponed until 1973 and did not ultimately result in the adoption of any recommendations.37 This situation is easily explainable by taking into account the international political context of the time. All the countries of the Soviet bloc – albeit formally recognizing this right, and although parties to ICCPR – were not providing their citizens with any possibility to use this right in practice.38 The situation remained unchanged even after the attempts by the US to impose the respect of this right through trade sanctions.39 The USSR was very active (and moderately successful) in blocking any further study of the right. Following the failure to influence the working of what later became Article 12(2) ICCPR aimed at frustrating the right, 40 the Soviet Union’s position was that the right was marginal and could not distract the energy of the UN bodies from addressing more pressing problems. 41 In such a 36

Inglès (n 20).

37

Hannum (n 16) 14.

38

A large body of literature emerged in this regard, focusing, mostly, on the Jewish emigration from the USSR. This focus is curious and seems to be related to the inherent connection between the rights to leave a country and to enter another. Soviet Union applied the same policy which made leaving its territory virtually impossible to all its citizens, yet, only the problems of the Jews were discussed in the literature since, unlike all others – Russians, Ukrainians, or Ukagirs – Jews had a country they were entitled to entre, should they be permitted to leave. See eg Yoram Dinstein, ‘Freedom of Emigration and Soviet Jewry’ (1974) 4 IYHR 266. See also Cynthia Dachowitz, ‘Soviet Denial of the Right to Emigrate: An Economic Response’ (1985) 11 BJIL 325.

39

This is not surprising, given that the ideological blocs on the opposing sides of the iron curtain were not each-other’s main trading partners: Francis A Gabor, ‘Reflections on the Freedom of Movement in Light of the Dismantled “Iron Curtain”’ (1991) 65 Tulaine LR 849, 853 ff.

40

The Soviet Union proposed that the right to leave the country should be framed as exercisable only in accordance with the laws of the State, see Goodwin-Gill (n 15) 98.

41

The Soviet Union submitted: “The competent USSR authorities consider that the study of the whole intricate complex of problems relating to non-discrimination in respect of the right of everyone to leave any country, including his own (...) is not urgently needed and is not a matter of top priority; they therefore believe that the examination and further elaboration of the draft principles adopted by the Sub-Commission on Prevention of Discrimination and Protection of Minorities should in no way delay the work of the United Nations Commission on Human Rights on pressing and topical issues of vital con-

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context, the study of the right prepared by Judge José D. Inglès42 came to fijill in the politicised legal void and was widely used in interpreting the relevant provisions of the ICCPR notwithstanding the fact that the Report itself was not binding. Needless cern, including a convention on the elimination of all forms of racial discrimination, the draft International Covenant on Human Rights, and other important documents, the examination and adoption of which would meet the needs of our times.” This is reprinted in Antonio Cassese, ‘The Right to Leave and Return’ in Studi in onore di Manlio Udina, vol 1 (Giuffrè 1975) 221, 226. For the general story of the constant postponement of the serious consideration of the studies of the right, see Ved P Nanda, ‘The Right to Movement and Travel Abroad: Some Observations on the UN Deliberations’ (1972) 1 Denver JILP 109. 42

Inglès (n 20). Especially Annex VI to the study is of utmost importance, as it establishes the principles behind the functioning of the right. It reads as follows: The right of the national to leave his country Every national of a country is entitled, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, to leave his country, temporarily or permanently. No one shall be forced to renounce his nationality, as a condition for the exercise of the right to leave his country; nor shall he be deprived of his nationality as a consequence of his leaving the country. The conditions prescribed by law or administrative regulations for the exercise of this right shall be the same for all nationals of a country. The right of every national to leave his country shall not be subject to any restrictions except those provided by law, which shall be only such as are reasonable and necessary to protect national security, public order, health, or morals, or the rights and freedoms of others. No deposit or other security shall be required to ensure the repatriation or return of any national. Currency or other economic controls shall not be used as a means of preventing any national from leaving his country. Any national prevented from leaving his country because of non-compliance with obligations towards the State, or towards another person, shall be allowed to make reasonable arrangements for satisfying those obligations. Any national who wishes to leave his country permanently is entitled to sell his property and to take the proceeds thereof as well as his personal effects with him either at the

The Right to Leave Any Country Including One’s Own

to say, the fijindings of the Report did not influence the practice of the States, which chose to ignore the essence of the right to leave, thus helping the people most in need of the right, trapped in those states, very little. No much needed developments would come from the UN side. In the context of the growing international migration and the durable nature of the persistent breach time of his departure or within a reasonable period thereafter, subject only to the satisfaction of his local obligations. The right of a national to return to his country (...) The right of a foreigner to leave the country Every foreigner, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, has the right to leave the country of his sojourn. Every foreigner, legally within the territory of a country shall not be accorded lesser rights than a national in the exercise of his right to leave than country. The right of every foreigner to leave the country of his sojourn shall not be subject to any arbitrary restrictions. No foreigner shall be prevented from seeking the diplomatic assistance of his own country in order to ensure the enjoyment of his right to leave the country of his sojourn. Travel documents Every national of a country is entitled, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, to apply for and receive such travel documents as passport, identity card, visa or other certificate as he may require to leave his country or to return to his country. The formalities for the issuance of any travel document, including the grounds for its denial, withdrawal or cancellation, shall be provided by law. Regulations implementing the law shall also be published or communicated to the applicant. The issuance of any travel document shall not be subject to unreasonable costs or taxes. Fair hearing and recourse to independent tribunals. Everyone denied a travel document or permission to leave the country or to return to his country is entitled to a fair hearing. In particular, he shall have the possibility of presenting evidence on his own behalf, of disputing evidence against him and of having

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of the right to leave by a huge number of countries, all the States of the Soviet bloc included, international lawyers dealing with migration would unite at symposia trying to build on Judge Inglès’ study attempting to fijill in the lacunae related to the essence of the right and, especially, to clarify the extent of possible limitations of this right by States which would be tolerated by International Law. Two most important such events included the Uppsala colloquium of 1972, 43 which adopted a Declaration on the Right to Leave and the Right to Return, and the Strasbourg conference of 1986, which resulted in the Strasbourg Declaration on the Right to Leave and Return. 44 Practically speaking it was abundantly clear, however, that the right remained a weak declaratory norm which was neither enforced, nor taken seriously by those states unwilling to grant the right to leave to their citizens and/or residents. Prof. Goodwin-Gill opined in this context that the right was too weak to call it such and de facto was not yet established at the global level, 45 since the rhetorical calls for its establishment in numerous international legal documents failed to change the picture on the ground: “[T]he very breadth of actual practice [of restricting the right

witnesses examined. The hearing shall be public except when compelling reasons of national security or the personal interests of the applicant require otherwise. The decision of the competent authorities to grant, deny, withdraw or cancel the required permission or travel document shall be made and communicated to the individual concerned within a reasonable and specified period of time. If the required travel document or permission is denied, withdrawn or cancelled, the reasons for the decision shall be clearly stated to the individual concerned. In case of denial, withdrawal or cancellation of the required permission or travel document the aggrieved individual shall have the right to appeal to an independent and impartial tribunal.

43

‘The Right to Leave and the Right to Return: A Declaration Adopted by the Uppsala Colloquium, Sweden, June 21, 1972’ (1973) 7 I Migration R 62.

44

Strasbourg Declaration on the Right to Leave and Return (adopted 26 November 1986) reprinted in (1987) 8 HRLJ 481. See also R Hofmann, ‘The Right to Leave and Return to One’s Own Country: The Strasbourg Declaration on the Right to Leave and to Return, Results of the Meeting of Experts Held in Strasbourg in November 1986’ (1987) 8 HRLJ 478.

45

Goodwin-Gill (n 15) 93.

The Right to Leave Any Country Including One’s Own

to leave] is strong evidence against the emergence of a general principle of free movement.”46 Regrettably, this situation largely persists today. 47 The fijirst update of the Study by the Special Rapporteur Judge Inglès fijinished in 1963 only came in 1988. This report, composed by Mr. C.L.C. Mubanga-Chipoya48 was further elaborated by Mr. Volodymir Boutkevitch in 1997. 49 Both updates are clearly weaker, as far as their ambition and scholarly soundness are concerned, than the fijirst Report.50 Moreover, Mubanga-Chipoya’s Report became largely outdated almost immediately after its release following the end of the Cold War. The study by Judge Inglès thus still remains among the key documents on the right to leave, as it set up the whole framework of the proper functioning of the right and established a clear ambition in turning the right to leave into a reality of day-to-day life. Finally, what Judge Inglès and other lawyers attempting to make the right real expected to happen in the sixties of the last century only happened in 1999: the Human Rights Committee adopted General Comment No. 27 on Freedom of Movement, providing the authoritative interpretation of the relevant provisions

46

ibid 96.

47

Numerous surveys of the application of the right in different jurisdictions are available. Among numerous others and besides the reports of the Special Rapporteurs, see Karl J Partsch, ‘The Right to Leave and to Return in the Countries of the Council of Europe’ (1975) 5 IYHR 215.

48

CLC Mubanga-Chipoya, Analysis of the Current Trends and Developments Regarding the Right to Leave Any Country Including One’s Own, and to Return to One’s Own Country, and Some Other Rights or Considerations Arising Therefrom (UN 1984).

49

UN Sub-Commission on the Promotion and Protection of Human Rights, ‘Working paper on the right to freedom of movement and related issues prepared by Mr. Volodymyr Boutkevitch in implementation of Decision 1996/109 of the Sub-Commission’ (29 July 1997) UN Doc E/CN.4/Sub.2/1997/22 accessed 31 March 2012].

50

Boutkevitch, in one example, relies on the data from an obscure Ukrainian newspaper in his analysis of the world migration trends, which falls clearly short of any minimal quality standards. See eg Boutkevitch (n 49) 17. Moreover, as Boutkevitch emphases in his Report, Mubanga-Chipoya took the national reporting he received from the states parties to the ICCPR somewhat on the facial value, which led to misleading conclusions, such as the finding that the USSR was in compliance with ICCPR Art 13(2) in a situation when it was largely impossible for citizens to leave that country, see Boutkevitch (n 49) para 21.

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of the ICCPR.51 Not surprisingly, the document was largely based on Judge Inglès’ Report. 2.

At the Regional Level

The picture is somewhat more optimistic at the regional level. Especially Europe, and, more specifijically, the European Union (EU), provides an example antithetical to the general failure of the UN to make the right to leave any country including one’s own real at the global level. Within the EU this right is virtually absolute and functions very well in practice, at least as far as the movements of EU citizens are concerned.52 Both the Treaty on the Functioning of the European Union53 and the relevant Directive54 provide for a right to move freely around the territory of the Union.55 The attainment of a situation when the right to leave can be genuinely employed happened in the context where, unlike what we have seen in classical International Law, the right to move around the Union exists as a uniform right and is generally not unbundled into the rights to leave and to enter.56 A clear distinction is made, however, between the territory of the Union and the rest of the world.57 Consequently, diffferent rules can apply depending on the destination of movement. In one example, while it is not necessary to have a passport for travelling inside the

51

General Comment 27 (n 21).

52

See eg Jo Shaw, ‘Citizenship: Contrasting Dynamics at the Interface of Integration and Constitutionalism’ in Paul Craig and G de Búrca (eds), Evolution of EU Law (2nd ed, OUP 2011); Dimitry Kochenov, ‘Ius Tractum of Many Faces: European Citizenship and a Difficult Relationship between Status and Rights’ (2009) 15 CJEL 169.

53

TFEU Arts 20(2)(a) and 21(1).

54

Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/77.

55

For a general analysis of the scope of EU territory, see Dimitry Kochenov, ‘Introducing EU Law of the Overseas’ in Dimitry Kochenov (ed), EU Law of the Overseas (Kluwer Law International 2011).

56

For the detailed assessment of the functioning of the right in the EU context, see eg Shaw (n 52); and Síofra O’Leary, ‘Free Movement of Persons and Services’ in Paul Craig and Gráinne de Búrca (eds), Evolution of EU Law (2nd ed, OUP 2011).

57

see eg Case C-34/09, Gerardo Ruiz Zambrano v Office national de l’emploi (8 March 2011) [44].

The Right to Leave Any Country Including One’s Own

EU – a situation covered by the Union law58 – the same does not always apply in the case of leaving the Union, which is a situation not necessarily covered by EU Treaties and is thus regulated by the national rules of the Member States in combination with international law. European regional legal instruments adopted in the context broader than the EU equally protect the right to leave. The key provision to this efffect is Article 2(2) of the Fourth Protocol to the European Convention on Human Rights (ECHR), which establishes that ‘[e]veryone shall be free to leave any country, including his own’. Other documents echo this provision of the ECHR, which is itself clearly rooted in Article 13(2) UDHR.59 Outside of Europe, the right to leave a country is reflected in all the regional human rights instruments, thus covering almost all the continents. Such documents include 1948 American Declaration of the Rights and Duties of Man (Article VIII),60 1969 American Convention on Human Rights (Article 22),61 1981 African Charter on Human and Peoples’ Rights (Article 12(2)),62 1994 Arab Charter on Human Rights (Article 21).63 All in all, the right to leave the country has received textual confijirmation in a wide number of general and regional international legal instruments and is thus generally recognized on paper by the majority of the governments in the world. Consequently, the right has also generated a rich scholarly literature, masterfully analyzed in the writings of Richard Plender, Guy Goodwin-Gill, Hurst Hannum and others. All this did not shape a reality, however, where the right would genuinely create enforceable obligations and protect individuals. It is abundantly clear at this 58

On the vagueness of the border line between the situations covered by EU law and those falling outside its scope see, in the EU citizenship context, Kochenov (n 7) 34–58 (and the literature cited therein).

59

See also European Convention on Legal Status of Migrant Workers (adopted 24 Novem-

60

American Declaration of the Rights and Duties of Man, OAS Res XXX adopted by the

ber 1977, entered into force 1 May 1983) CETS 93, Art 4. Ninth International Conference of American States (1948) reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System OEA/Ser L V/II.82 Doc 6 Rev 1 at 17 (1992). 61

American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) OAS Treaty Series No 36.

62

African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58 (African Charter).

63

Arab Charter on Human Rights (adopted22 May 2004, entered into force 15 March 2008).

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point that outside the EU, where this right is both de facto and de jure guaranteed at the supranational level, the right is not international in nature, but belongs more to the realm of national constitutional law. III.

Development: Some Aspects

In a way, the clash existing between the proclamation of the right to leave any country including one’s own in a myriad of documents and its more than frequent inability to govern concrete situations where people are prevented from leaving a country is a logical continuation of the history of this right. It also illustrates a potential conflict between some rights proclaimed in International Law and the very essence of the logical underlying the international legal system i.e. the sovereignty of States. This is partly why this right only appeared in an international legal document for the fijirst time after the Second World War. Before this apparition, it belonged uniquely to the realm of national constitutional law of States, on which its practical implementation still entirely depends. It goes without saying that national constitutional law, following sovereignist, if not democratic,64 thinking, can adopt diffferent approaches to the movement of people across borders. And at the time when the right to leave was included in the UDHR, no overwhelming consensus existed among States which would point in the direction of opening up the borders for those who would like to leave. This is rooted in the centuries of divergence in thinking about the essence of the relationship between the people on the one hand and the sovereign on other. Not repeating the rich literature on the history of the right to leave,65 a couple of important developments should nevertheless be sketched. Historically, the right has known numerous restrictions. Most importantly, no general line of thinking about leaving one’s country emerges upon the analysis of the approaches prevalent in the past. From ancient times until the present day societies, politicians and philosophers had opposing views on the existence of the right. In one example, Plato and Spartan law denied it entirely, while Socrates and the Athenian law viewed it as an attribute

64

Joseph HH Weiler, ‘Fundamental Rights and Fundamental Boundaries: Common Standards and Conflicting Values in the Protection of Human Rights in the European Legal Space’ in Riva Kastoryano and Susan Emmanuel (eds), An Identity for Europe: The Relevance of Multiculturalism in EU Constitution (Palgrave Macmillan 2009) 73.

65

There is a rich body of literature retelling the story of the right, see eg Juss (n2) 297–392; Jagerskiold (n 16) 167–170.

The Right to Leave Any Country Including One’s Own

of personal liberty.66 Although the right was mentioned in the Magna Carta of 1215, which stated, in clause 42 that ‘any person [is entitled] to go out of the Kingdom, and to return, safely and securely by land or by water, saving his allegiance to us’, this right has been almost immediately suspended by the regent for Henry III.67 A clear distinction was usually made between the right to travel abroad and the right to expatriate. While the former gradually came to be tolerated towards the end of the 19th century, battles were fought (quite literally) about the latter: immigrant nations trying to win freedom for their newly-naturalised citizens from the bonds of allegiance with the States of their birth – the tensions that resulted in Bancroft treaties.68 As a vestige of such conflicts of the past, some countries, which are now defijinitely in the minority, still try to limit the instances of multiple nationality viewing it as leading to potential conflicts.69 Such a view is clearly based on the ignorance about the basics of human identity which is rarely monolithic and never uniform within any society.70 Yet, the rights to travel abroad and to expatriate are very difffijicult to diffferentiate in practice, especially from the point of view of a State suspicious of its citizens’ motivations. Nevertheless, by the end of the 19th century the right to leave the country for good, or at least to travel abroad temporarily was recognized by the majority of the powers of the day, bar Russia.71 The introduction, following the French revolution, the partial fading away, during the so-called ‘liberal period’,72 and the subsequent re-introduction of the strict passport system after the First World War restricted the freedom to leave the country signifijicantly.73 In the inter bellum period, however, the League of Nations made a number of initiatives aimed at the establishment of a uniform system of passports with a view to their gradual abolition. The Paris conference of 1920, where the liberties of travel predating the First World War were to be 66

Hannum (n 16) 3.

67

ibid 4.

68

Orrin K McMurray, ‘Inter-Citizenship: A Basis for World Peace’ (1918) 27 YLJ 299.

69

Peter Spiro, ‘Dual Citizenship as Human Right’ (2010) 8 IJ Const L 111; Dimitry Kochenov, ‘Double Nationality in the EU: An Argument for Tolerance’ (2011) 17 ELJ 323.

70

See the chapter by Dora Kostakopoulou in this volume; Kochenov (n 5).

71

Jagerskiold (n 16) 169.

72

The ‘liberal period’ in world migration lasted, roughly, until the First World War. In the end of the 19th century attempts were made at the international level, most notably by the Institut de Droit International, to codify the migration rules as part of the Law of Nations, which did not lead, however, to the adoption of a Convention, see Jagerskiold (n 16) 170.

73

John Torpey, The Invention of the Passport: Surveillance, Citizenship and the State (CUP 1999).

159

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reintroduced, largely ended in a fijiasco, adopting only a handful of modest recommendations.74 The age of severe restrictions on international travel has commenced. The contemporary regime, whatever the UDHR or the law of the nations of the ‘First world’ states, is very restrictive indeed. Yet, it is not so diffferent from the situation which used to prevail even during the ‘liberal period’ of world migration, once the world at large is concerned. The right to migrate is still protected in the context of a handful of particular groups, not all people in the world. Such groups are slightly diffferent now, compared with one hundred years ago, but the essence of the situation remains the same. So speaking about the liberal situation in the end of the 19th century one should not forget that very diffferent rules could apply to the metropolitan centres of the Empires of the day and to their colonies. Immigration regimes across the board were racist by law,75 and huge numbers of people could not in fact ever aspire to benefijit from the ‘liberal nature’ of regulation in question. Importantly, this does not only concern the colonials, but was also often the case with women – a fact which is often understated today. Behind the façade of the rules on the right to leave any country to be found in International Law, UN documents and numerous national constitutions it is possible to observe not only the failure to respect such glorifijied proclamations, but also the drive promoted by the richest nations vis-à-vis the poorer ones, requiring the latter to curtail the right to leave. This is demonstrated, for instance, by EU Member States’ leaders’ threats to withdraw aid from the countries failing to block the flow of ‘illegal’ immigrants,76 or EU’s deals with Muammar Gaddafiji’s regime to stop immigrants from leaving Libya (and arriving to the EU).77 IV.

Challenges

The right to leave any country including one’s own, as framed in numerous international documents poses a number of questions which are bound to be resolved 74

Aybay (n 16) 123–124.

75

See eg Deenesh Sohoni, ‘Unsuitable Suitors: Anti-Miscegenation Laws, Naturalisation Laws, and the Construction of Asian Identities’ (2007) 41 Law and Society Review 587, 602–608.

76 77

Jagdish Bhagwati, ‘Borders beyond Control’ (2003) 82 Foreign Affairs 98. ‘Gaddafi: Europe Will “Turn Black” Unless EU Pays Libya £4bn a Year’ The Telegraph (Chatham, 31 August 2010) accessed 25 August 2014.

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when implementing this right in practice. While the main challenge posed in such context consists in the precise interpretation of the lawful limitations of the scope of the right, which will be discussed in the section that follows, a number of other issues requiring clarifijication which are not necessarily related to such limitations equally arise. These relate to the possible distinctions in the application of the right to the nationals of the country and foreigners (as well as intermediary categories of persons, such as Latvian non-citizens or the citizens of the EU, who belong neither to the group of ‘foreigners’ nor ‘nationals’); the distinctions in the application of the right dependent on the length of stay abroad, i.e. temporary travel as opposed to expatriation; the essentially dual nature of the right, which consists in the obligation lying on the state to help and not to hinder the exercise of the right. Lastly it should also be clarifijied what the exact meaning of ‘any country’ is, especially in the context of the obligations lying on the country of nationality of a person. 1.

The Role of Nationality

Concerning the role played by nationality in the framing of the right, it is clear that the nationality of the person willing to leave is irrelevant for the functioning of the right. The right to leave a country, as established by Article 12(2) ICCPR does not know any nationality-based limitations. Consequently, both foreigners and citizens (including dual citizens) of a country are free, subject to possible restrictions tolerated by international law, to leave any country including their own. It is clear, to agree with Wiessner that ‘the freedom to leave a territory does not constitute a fundamental or distinguishing feature of nationality’.78 The same reasoning is bound to apply to the intermediary statuses placing some individuals – either by national law of the States concerned or by the law of an international organization of which these States are part – somewhere in-between ‘foreigners’ and ‘citizens’. A restrictive example of such a status would be, for instance, the status of a non-citizen of Latvia, which is reserved in that republic for ethnic minorities.79 This status is not equal to nationality, according to the Latvian Constitutional Court,80 although, as clarifijied by the Supreme Court of Latvia, it re-

78 79

Wiessner (n 1) 512. Gulara Guliyeva, ‘Lost in Transition: Russian-Speaking Non-Citizens in Latvia and the Protection of Minority Rights in the European Union’ (2008) 33 ELR 843; Kristine Krūma, ‘Country Report: Latvia’ (2010), EUDO Citizenship Observatory Paper.

80

Case 2004-15-0106 (Latvian Constitutional Court, 9 March 2005) [17].

161

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flects a profound bond existing between the non-citizen and the Republic of Latvia.81 Notwithstanding the diffference, the non-citizens are treated in the same way as citizens in matters of immigration: they cannot be deported and have the right to leave the territory of Latvia.82 Problems arise with regard to the travel documents which their state of non-nationality issues them with. Non-citizen passports of Latvia are not recognized by all the states in the world, which means that non-citizens’ freedom of travel is potentially restricted in comparison with that of the citizens. A somewhat more optimistic example of an intermediate status lying between a foreigner and a national is the citizenship of the EU. Enjoying the right not to be discriminated against on the basis of nationality in all the EU Member States,83 EU citizens enjoy guarantees to leave under EU law, not only national law of the Member State where they are. Moreover, their situation is generally assimilated to that of the nationals of the EU Member State where they reside, enlarging their horizon of opportunities compared with that of those, who are not in possession of such a status.84 One of the rights of EU citizenship is to seek consular assistance from the diplomatic representation of any EU Member State,85 which means that a Maltese citizen whose passport was stolen will be helped by the United Kingdom embassy in Monrovia, to enable her to leave Liberia and to return to the EU. To sum up, the right to leave applies with no distinction between the personal statuses of those intending to leave, be they citizens, dual citizens, aliens, or in-betweens.86

81

Case SKA-89 C27261801 (Latvian Supreme Court, 2004): “The connection of a non-citizen

82

Art 2 of the Former USSR Citizens Act (Latvia). See also Krūma (n 79) 7.

with the Republic of Latvia is closer than that of a stateless person or a foreign national.” 83

Gareth Davies, Nationality Discrimination in the European Internal Market (Kluwer Law International 2003).

84

Dimitry Kochenov, ‘Rounding up the Circle: The Mutation of Member States’ Nationalities under Pressure from EU Citizenship’ (2010) EUI Robert Schuman Center for Advanced Studies Paper 2010/23.

85

TFEU Arts 20(2)(c) and 23. See also Commission, ‘Consular protection for EU citizens in third countries: State of play and way forward’ (Communication) COM (2011) 149 final.

86

Peter Schuk, Citizens, Strangers, and In-betweens: Essays on Immigration and Citizenship (Westview Press 2000).

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2.

The Length of Stays Abroad

Concerning the distinctions between temporary stays abroad and expatriation, sound consensus has emerged in the literature and offfijicial commentary that Article 12(2) ICCPR protects both equally, making no distinction between the two. General Comment No. 27 states: Freedom to leave the territory of a State may not be made dependent on any specifijic purpose or on the period of time the individual chooses to stay outside the country. Thus, travelling abroad is covered, as well as departure for permanent emigration. Likewise, the right of the individual to determine the State of destination is part of the legal guarantee.87

This does not mean, however that no problems related to making distinctions between temporary travel and expatriation ever arise. As has been stated above, historically, a clear distinction existed between the two, which dates back to the Magna Carta. The duty of insoluble allegiance which governed the relations between sovereigns and their subjects until very recent times largely meant that permanent expatriation could not extinguish the bond between the sovereign and the person. Although International Law has moved away from this understanding of the bonds between citizens and states coming to state that ‘[n]o one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality’,88 inertia of the old times is difffijicult to uproot. History of the practical implementation of the right to leave knows such blunt violations of the right as the requirement to renounce one’s nationality before leaving, once desired expatriation is suspected, which was a standard practice in the USSR. The connection between the exercise of the right to leave and nationality law in the cases of expatriation is clearly observable, as many countries used to (or still) denationalize those citizens who either stay abroad for ‘too long’, vote abroad (which is understood as a sign of expatriation),89 or simply belong to the national minorities 87

General Comment 27 (n 21) para 8.

88

UDHR Art 15(1). For the development of the right to change nationality see eg Kochenov (n 5).

89

In general, see the EUDO citizenship observatory database, which lists all the grounds of nationality deprivation country by country based on the data from all Council of Europe Member States at accessed 25 August 2014. For an overview see also de Gerard-René Groot and Maarten P Vink, ‘Loss of Citizenship: Trends and

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and travel across the border.90 It is clear that deprivation of nationality can violate a virtually infijinite number of rights of individuals, yet, although the general trend in the world shows that such arbitrary cases of nationality deprivation are becoming less and less wide-spread, they are not as of yet a tale of the past. The right to nationality, equally proclaimed in international law91 is weak and unenforceable in practice.92 There are other ways to discourage people from leaving, however, which can potentially run counter International Law, such as the deprivation of political rights for instance. This, virtually by defijinition, concerns only those who are emigrating, not the tourists and people on temporary business abroad.93 Comparing the two facets of the right to leave, i.e. the right to travel abroad and the right to emigrate, it is apparent that the denial of the latter is likely to have more detrimental consequences for the person in question than the denial of the former,94 giving rise to the most essential considerations of the deprivation of liberty addressed in the opening part of this piece. 3.

The Dual Nature of the Right

Another important aspect of the right to leave any country including your own as established by the ICCPR lies in its dual nature: this right includes a negative obligation on the State not to impede departure and a positive obligation to issue all the necessary travel documents without undue delay. This is in line with Article 2(1) ICCPR, which requires a dual undertaking, i.e. ‘to respect’ and ‘to ensure’. The posiRegulations in Europe’ (2010) EUDO Citizenship Paper accessed 25 August 2014. 90

Greece was notoriously famous for the practice of withdrawing its citizenship at the border from the persons belonging to the ethnic minorities who, according to the border officer, had no intention to return: Nicholas Sitaropoulos, ‘Freedom of Movement and the Right to a Nationality v Ethnic Minorities: The Case of ex Art. 19 of the Greek Nationality Code’ (2004) 6 EJML 205.

91 92

UDHR Art 15(1). Johannes MM Chan, ‘The Right to a Nationality as a Human Right: The Current Trend towards Recognition’ (1991) 12 HRLJ 1; Ko Swan Sik, ‘Nationaliteit in het Volkenrecht’ (1981) 83 Mededelingen van de Nederlandse Vereniging voor Internationaal Recht 1.

93

For an analysis, see Dimity Kochenov, ‘Free Movement and Participation in the Parliamentary Elections in the Member State of Nationality: An Ignored Link?’ (2009) 16 MJECL 197 (and the literature cited therein).

94

See also Hannum (n 16) 47.

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tive obligation, which is often underestimated, is extremely acute in the context of the practical application of the right. In the majority of cases this obligation comes down to the requirement to issue a passport. Yet, in a number of countries a right to a passport does not exist and such documents, on which the exercise of the right to leave, as well as the potential entry into any other country is entirely dependent, are not available to the majority of citizens. Although such a situation clearly amounts to the violation of Article 12(2) ICCPR, little can be done in practice in order to change the administrative practice of such States. We are so accustomed to passports that they are not even generally regarded as strange and unnecessary any more, which would certainly surprise our ancestors a couple of generations back, when clarifying ‘je suis anglais’ was enough to pass boarders.95 Passports are a clear sign of the pervasive character of the man-made reality Allott was revolting against96 – the triumph of ‘seeing like a State’.97 The majority of limitations of the right to leave the country occur via the denial of travel documents, which are, efffectively, absolutely necessary for international travel.98 Agreeing with Harvey and Barnidge Jr., ‘[p]assports are a sine qua non of the right to leave’.99 This is the case even when the law of the country does not require that a passport be presented at the border when leaving, which is the case in the United Kingdom, for instance.100 The majority of carriers will simply refuse to accept a passenger without a passport as this will not guarantee this person’s admittance at the border of the State of destination and can result in fijines for the carrier – a situation which is as of itself clearly dubious under international law. Although prohibited by the ICCPR, which does not permit discrimination on a number of grounds including opinions and beliefs, passports are often refused to 95

For an informative analysis by a jurist belonging to a generation who still could cross borders without any such documents in their youth, see Egidio Reale, ‘Le Problème des passeports’ in Receuil des cours de l’Académie de droit international de la Haye, vol 50 (Recueil Sirey 1934).

96

Philipp Allott, Eunomia (OUP 1990); Philipp Allott, The Health of Nations: Society and Law beyond the State (CUP 2002).

97

James C Scott, Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed (YUP 1998).

98

In general, see Guy S Goodwin-Gill, International Law and the Movement of Persons between States (Clarendon Press 1978) 24–50.

99

Harvey and Barnidge (n 16) 7.

100 For the British approach to passports, see eg David W Williams, ‘British Passports and the Right to Travel’ (1974) 23 ICLQ 642.

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political opponents of the regime or members of the opposition parties. Although in the democracies, like the US, the possibility of abuse of the passport issuing authority in order to punish dissent has been curtailed by the judiciary,101 this has not been the case in other jurisdictions,102 to which fact General Comment No. 27, as well as the fijindings of the Special Rapporteurs to the Sub-Commission abundantly testify. Of course, passports are not the only documents allowing persons to cross international borders. International agreements can provide for passport-free travel, which is the case in the EU, for instance, or travel with a passport card, which is the case for the US citizens travelling in the Americas. States also issue non-citizen travel documents to those residents who cannot obtain a passport from their state of nationality, refugees or apatrides. Also humanitarian organizations, such as Red Cross (ICRC),103 as well as international organization, such as the UN, issue travel documents. States can also issue a laissez-passer allowing the bearer to return to the country of nationality. Although allowing one to leave a country, these are not to be equalled with passports.104 Besides a valid passport, some countries also require persons intending to leave to apply for an exit visa, which is an important obstacle on the way to exercise the right to leave the country which, at the same time, can serve the achievement of hardly any legitimate goal, which would be in line with the provisions of the ICCPR and other relevant international documents. Judge Inglès called for the abolition of ‘[t]hese vestigial relics of a feudal past [which] have no place in this day

101

For an overview, see Jeanne M Woods, ‘Travel That Talks: Toward First Amendment Protection for Freedom of Movement’ (1996) 65 GWLR 106. On political passport denials in the US, see Boudin (n 22) 47; Reginald Parker, ‘The Right to Go Abroad: To Have and to Hold a Passport’ (1954) 40 Virginia LR 853; ‘Passport Refusals for Political Reasons: Constitutional Issues and Judicial Review’ (1952) 61 Yale LJ 171; ‘“Passport Denied,” State Department Practice and Due Process’ (1951) 3 Stanford LR 312.

102

Cases are well-known when the legislature would limit the freedoms proclaimed by the courts, see eg the Supreme Court of India in Sawhney v Assistant Passport Officer [1967] A.I.R. (S.C.) 1836, which held that the denial of a passport amounted to a denial of rights of personal liberty and equality before the law, guaranteed by the Constitution of India, yet, three months after the decision the Government enacted the Passport Act 1967, which curtailed the right. See also Goodwin-Gill (n 98) 30.

103

Francois Bugnion, ‘Refugees, Internally Displaced Persons, and International Humanitarian Law’ (2005) 28 FJIL 1397, 1413 ff.

104 Goodwin-Gill (n 98) 46.

The Right to Leave Any Country Including One’s Own

and age’.105 The UN Human Rights Committee has been unequivocal in its condemnation of exit visas in its Concluding Observations with regard to Belarus, Ukraine and Uzbekistan.106 It is without any doubt that at the present stage of development of International Law exit visas are prohibited by Article 12 ICCPR. The general rule is that the issuance of the passport can be restricted only when the right to leave of the person is restricted and not in the other cases: rules on the issuance of travel documents cannot limit the exercise of the right.107 This general rule notwithstanding, many States have a diffferent approach to the interrelation between the right to a passport and a right to leave. 4.

Movement Between Foreign Countries

According to the practice of the UN Human Rights Committee the right to leave any country by a citizen of a State does not only include situations where the state of nationality of the person concerned is one of the states between which the movement is intended, but also covers movement between third countries. The implications of this approach for the issuing of passports are clear: States are obliged to issue their citizens residing abroad with travel documents even when those persons are not intending to travel to their country of citizenship. According to the UN Human Rights Committee issuing a laissez-passer, or a document issued by the country of residence in such cases is not enough.108 General Comment No. 27 reafffijirms this reasoning.109 Moreover, passports should be issued without undue delay.110 To summarise, Article 12(2) ICCPR applies with no distinction to the nationality of the person willing to leave, covers temporary travel and expatriation equally, and contains both positive and negative obligations addressed to states. Moreover, leaving any country does not mean that the country of destination should necessarily be the traveler’s state of nationality.

105

Inglès (n 20) 62.

106 For an analysis, see Harvey and Barnidge (n 16) 16–18. 107

Jagerskiold (n 16) 179–180; Hannum (n 16) 19–24.

108 UNHRC, Varel Nunez v Uruguay, Communication 108/1981; UNHRC, Pereira Montero v Uruguay, Communication 06/1981; UNHRC, Lichtensztejn v Uruguay, Communication 77/1980; UNHRC, Vidal Martins v Uruguay, Communication 57/1979. 109 General Comment 27 (n 21) para 9. 110

UNHRC, Loubna El Char v Libya, Communication 1107/2002, analysed by Harvey and Barnidge (n 16) 6–7.

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V.

Restrictions

The majority of problems related to the functioning of the right to leave any country including one’s own arise in the context of the application of what is deemed by States as permissible limitations of the right. Just as the absolute majority of other rights protected by diffferent jurisdictions at diffferent levels, the right under scrutiny is not absolute. It is particularly acute in this regard, to outline with clarity the precise extent of possible legitimate limitations of the right in order to ensure that the possibility to limit it does not supply a pretext and quasi-legitimization of unlawful restrictions. Several most popular ways to limit the right are worth listing in order to provide a number of practical examples what is not allowed under International Law (the States’ practice notwithstanding). 1.

Limitations of the Right

ICCPR provides for the limitations of the right to leave in Article 12(3): “The above mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.”111112

111

Art 2(3) of the Fourth Protocol to the ECHR contains a largely similar wording: “No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

112

It might seem surprising that the article does not mention war, which is the most likely context of rights’ limitations. However, the traveaux préparatoires of the ICCPR make clear that this omission is intentional and has to do with the UN’s objective of preventing war, see Thomas Buergenthal, ‘To Respect and to Ensure: State Obligations and Permissible Derogations’ in Louis Henkin (ed), The International Bill of Rights: The Covenant on Civil and Political Rights (Columbia UP 1981) 79. The initial versions of the clauses to restrict the freedom to leave were much more far-reaching than the version which became final and included a number of possible limitations ranging from ‘own protection’, ‘control of migrant workers’ to fighting prostitution, see Jeffrey Barist et al, ‘Who May Leave: A Review of Soviet Practice Restricting Emigration on Grounds of Knowledge of “State Secrets” in

The Right to Leave Any Country Including One’s Own

All the possible limitations mentioned in Article 12(2) ICCPR should be assessed in the light of the limited wording of Article 29 UDHR, which only allows for the departure from the rights recognized by the Universal Declaration ‘solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society’.113 Moreover, the interpretation of all the limitation clauses in the ICCPR should not depart from the requirements of the Vienna Convention on the Law of Treaties, which states in Article 31 that treaties are to be interpreted ‘in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’, thus clearly excluding any blanket prohibitions on leaving the country: as any other exceptions, the starting point in interpreting the provisions on leaving any country including your own is the realization that they can only be construed very strictly and that their use should not undermine the essence of the right. In other words, ‘the relation between right and restriction, between norm and exception, must not be reversed’.114 Lastly, the provisions of national law cannot be invoked as a justifijication of the failure to ensure the enjoyment of the right to leave any country including one’s own, which is grounded in International Law.115 In terms of the procedural ways to tackle the application of the restriction clauses in the ICCPR, the General Comment No. 27 clearly reads the introduction of permissible restrictions under Article 12(3) ICCPR in the light of the application of the principle of proportionality, which should block the way to possible abuse of discretion and unnecessary limitations in implementing the right: 14.

Article 12, paragraph 3, clearly indicates that it is not sufffijicient that the restrictions serve the permissible purposes; they must also be necessary to protect them. Restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected.

Comparison with Standards of International Law and the Policies of Other States’ (1987) 15 Hofstra LR 381, 389. 113

UDHR Art 29.

114

General Comment 27 (n 21) para 13.

115

VCLT Art 27. This is also in line with the pacta sunt servanda principle of international law, reflected inter alia in VCLT Art 26.

169

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Chapter 8 – Dimitry Kochenov 15.

16

The principle of proportionality has to be respected not only in the law that frames the restrictions, but also by the administrative and judicial authorities in applying the law. States should endure that any proceedings relating to the exercise or restriction of these rights are expeditious and that reasons for the application of restrictive measures are provided. (...) The application of restrictions in any individual case must be based on clear legal grounds and meet the test of necessity and the requirement of proportionality (...).116

Such reading of the right is in line with the general trend in a number of jurisdictions all around the world, which marks a gradual substitution of the ‘culture of authority’ with the ‘culture of justifijication’, as brilliantly analyzed by Cohen-Eliya and Porat.117 2.

The Extent of Limitations Permitted by Law 118

Agreeing with Buergenthal, ‘the state’s decision on [the questions of derogation] is not fijinal. They are issues in the interpretation and application of international law, subject to scrutiny, enforcement and remedy like other issues arising under the [ICCPR]’.119 In order to ensure that a limitation is legal it has to be both provided by law and meet the standards set out in Article 12(2) ICCPR. It seems obvious that the use of the legal possibility to limit the right is legitimate on a number of occasions, especially in the case of convicted criminals and those seeking to evade prosecution or reasonable civic duties established by law.120 116

Before the publication of the General Comment 27, Hurst Hannum suggested that the application of the principle of proportionality should be regarded as an indispensable part of the ‘necessary’ test, introducing ‘an objective component into the determination of whether a state’s particular restriction of the right to leave is permissible under the Covenant’, see Hannum (n 16) 26.

117

Moshe Cohen-Eliya and Iddo Porat, ‘Proportionality and the Culture of Justification’ (2011) AJ Comp L (forthcoming).

118

The limitations of the right has been analysed in the literature on numerous occasions. See eg Hannum (n 16), 24–32; Buergenthal (n 112) 72; Alexandre C Kiss, ‘Permissible Limitations of Rights’ in Louis Henkin (ed), The International Bill of Rights: The Covenant on Civil and Political Rights (Columbia UP 1981) 190.

119 120

Buergenthal (n 112) 81. The Human Rights Committee clarified that restricting the right of a person subjected to compulsory military service is not contrary to ICCPR Art 12, see UNHRC, Lauri Peltonen

The Right to Leave Any Country Including One’s Own

The starting point in the analysis of the legitimate restrictions of the right is the requirement that such restrictions should be provided by law. According to General Comment No. 27, ‘[t]he law itself has to establish the conditions under which the rights may be limited. (...) Restrictions which are not provided for in the law or are not in conformity with the requirements of Article 12, paragraph 3’.121 Moreover, ‘[t] he laws authorising the application of restrictions should use precise criteria and may not confer unfettered discretion on those charged with their execution’.122 This qualifijication included in the General Comment No. 27 has its roots in the in interpretation of the requirement ‘in accordance with the law’ by the European Court of Human Rights (ECtHR) in the context of interpretation of the ECHR,123 and should be coupled, to agree with Hannum, with the requirement that the law be adequately accessible.124 Lastly, a possibility to appeal against the unsatisfactory decision of the authorities should also be included within the scope of the requirement ‘provided by law’.125 Lastly, the requirement of ‘provided by law’ has to do with the prohibition of arbitrary deprivation of the right in the sense that ‘arbitrary’ should not be understood as ‘unlawful’,126 but rather as clearly failing the proportionality test inherent in the activation of any legally permissible limitations of the right to leave any country including one’s own. v Finland, Communication 492/1992. Such reasoning will be contrary to the scope of the right of free movement in EU law, however. For analysis, see Kochenov (n 52) 214–125. 121

General Comment 27 (n 21) para 12.

122

General Comment 27 (n 21) para 13. For the origins of a suspicious approach by the UN bodies to unfettered administrative discretion able to undermine the enjoyment by individuals of the rights guaranteed by the ICCPR, see eg UNHRC, Pinkney v Canada, Communication 27/1978.

123

See eg Malone v The United Kingdom App no 8691/79 (ECtHR, 2 August 1984); Silver et al. v The United Kingdom App no 5947/72 (ECtHR, Judgement of 25 March 1983); Handyside v The United Kingdom App no 5493/72 (ECtHR, 7 December 1976.).

124

Hannum (n 16), 25.

125

See eg Erica-Irene A Daes, ‘The Individual’s Duties to the Community and the Limitations on Human Rights and Freedoms under Article 29 of the Universal Declaration of Human Rights: A Contribution to the Freedom of the Individual under Law’ (UN 1983). See also the updated version of the report: Erica-Irene A Daes, ‘Freedom of the Individual under the Law: A Study on the Individual’s Duties to the Community and the Limitations on Human Rights and Freedoms under Article 29 of the Universal Declaration of Human Rights’ (UN 1990).

126

Hannum (n 16) 45.

171

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All in all, the requirement of ‘provided by law’ is a ‘necessary, but not sufffijicient, condition for any justifijiable restriction’.127 In other words, it should always be regarded in the context of the specifijic concerns named in Article 12(3) ICCPR. These include, most importantly, ‘national security’ and ‘public order (ordre public)’.128 Both constitute extremely broad grounds, offfering attractive possibilities of curtailing the right, particularly so in the times of the war on terror. According to the Committee of Ministers of the Council of Europe, The temptation of governments and parliaments in countries sufffering from terrorist action is to fijight fijire with fijire, setting aside the legal safeguards that exist in a democratic state. But let us be clear about this: while the State has the right to employ to the full its arsenal of legal weapons to repress and prevent terrorist activities, it may not use indiscriminate measures which could only undermine the fundamental values they seek to protect.129

The dangers associated with the invocation of national security are well known.130 According to Daes, reporting for the UN Sub-Commission, the term by defijinition not precise enough in order to serve as a basis for legitimate restrictions of rights.131 Yet, the formula makes part of virtually all the general and regional human rights instruments. Following other commentators, Hannum suggests that the ground can only be invoked ‘to meet the use or threat of external force against the state itself’.132 This defijinition is probably not ideally suited for the contemporary context: the threat of terrorism is often associated with internal, rather than external interference with peace. Once internal components of national security restrictions are accepted, however, it becomes even more difffijicult to limit possible abuse of this ground: ‘excessive zeal to protect what is currently understood as national security 127

ibid 24–25.

128

ibid 29–32; Daes 1983 (n 125) 175 ff.

129

As cited by Brenda Hale, ‘Human Rights in the Age of Terrorism: The democratic Dialogue in Action’ (2008) 39 GJIL 383, 384.

130

For the general assessment, see Hannum (n 16) 27–29.

131

Daes 1983 (n 125) 121.

132

Hannum (n 16) 28. International bodies interpret this requirement restrictively, as Hannum has demonstrated: Denmark, Norway, Sweden, and the Netherlands v Greece App No 3321/67, 3322/67, 3323/67 and 3344/97 (Commission Decision, 5 November 1969); InterAmerican Commission of Human Rights, ‘Report on the Situation of Human Rights in Chile’ (1979) OAS Doc OEA/Ser.L/V/II.43/doc.21.

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has often given rise to serious infringements of the right under review’.133 All in all, it is clear that ‘free movement of a citizen is (...) dangerous to a tyrant (...) and it is therefore controlled (...) in the interests of security’.134 As far as ‘public health or morals’ limitation is concerned,135 this is one of the most dangerous restrictions of the right to leave accepted by international law. All the more interesting is, in the light of this understanding, the fact that neither term was subject to controversy in the course of the preparation of the ICCPR, as Hannum reports.136 According to Kiss, it ‘alludes to principles which are not always legally enforceable but which are accepted by a great majority of the citizens as general guidelines for their individual and collective behaviour’.137 The reference to these grounds of restrictions in the ICCPR potentially opens the way to limiting right on hypocrisy considerations. Similar considerations apply to the attempts to safeguard the rights and freedoms of others. 3.

The Most Popular Illegal Ways to Curtail the Enjoyment of the Right

General Comment No. 27 outlined a number of practices used by States in obstructing the enjoyment of the right by their citizens, including, inter alia: [L]ack of access for applicants to the competent authorities and the lack of information regarding the requirements; the requirement to apply for special forms through which the proper application documents for the issuance of a passport can be obtained; the need for supportive statements from employers or family members; exact description of the travel route; issuance of passports only on payment of high fees substantially exceeding the cost of the service rendered by the administration; unreasonable delays in the issuance of travel documents; restrictions on family members traveling together; requirement of a repatriation deposit or a return ticket; requirement of an invitation from the State of destination or from people living there, harassment of applicants, for example by physical intimidation, arrest, loss of employment or expulsion of their chil-

133 134

Inglès (n 20) 40. US Supreme Court, Aptheker v Secretary of State, 378 US 500 [519] (1964) (J. Douglas concurring).

135

For analysis, see Hannum (n 16) 41–42.

136

ibid 41. Moreover, similar justifications are also found in ICCPR Arts 14, 18, 19, 21 and 22.

137

Kiss (n 118) 304.

173

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Chapter 8 – Dimitry Kochenov dren from school or University; refusal to issue the passport because the applicant is said to harm the good name of the country.138

This list can be continued virtually ad infijinitum. States restrict the right to leave by imposing very questionable blanket prohibitions on a number of grounds, varying from the ‘access to classifijied information’ to the measures aimed at preventing the so-called ‘problem of brain-drain’, or ‘terrorism’. While the ‘classifijied information’based restrictions however questionable,139 and however broadly interpreted, only concern a small number of countries creating problems for dozens of thousands of individuals in a situation where such information is never defijined and no caseby-case assessment of the reasons behind the introduction of the suspension of the right to leave is possible (which is the case, e.g., in Russia or Ukraine140). The case of brain-drain-related restrictions is particularly unfortunate, since it is impossible to demonstrate, in however convincing way that the problem, which such restrictions aim to address actually exists in practice.141 While a presumption that having more well-trained specialists in each particular country is better than having less of them might seem justifijiable, taken as a starting point for restrictions it is unlikely to improve anyone’s position: neither the country’s, nor, that of the individual concerned. This is due to a number of reasons, two of them being slightly more obvious than others and thus worth mentioning here. Highly trained specialists, in order to be efffective, need an environment conductive to the realization of their talent, which the majority of the developing countries are lacking. This environment includes an absolute necessity of free circulation of colleagues and ideas – which is instantly killed by any bans on leaving. Moreover, even the moralistic arguments in the vein of the often proclaimed obligations to ‘give back to your community’ put aside, treating the world of knowledge as divided into states in simply wrong. Whatever one might think about giving back, a nuclear physicist 138 139

General Comment 27 (n 21) para 17. Jagerskiold (n 16) 178: “[I]t is questionable whether the security limitation contemplates this type of prohibition.”

140 The approach taken by the two countries is in line with the previous Soviet practice which is in clear contradiction with International Law. For analysis, see eg Barist, Oshman and Hamel (n 112) 381. The UN Human Rights Committee also expressed concern with regard to the restrictions on the right to leave based on the possession of ‘state secrets’ rationale which existed in Lithuania and Hungary, see Harvey and Barnidge (n 16) 18. 141

For a compelling analysis, see Fernando R Tesón, ‘Brain Drain’ (2008) 45 San Diego LR 899. See also Adviescommissie Mensenrechten (n 16) 10–11; Hannum (n 16) 34–40.

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cannot be useful at all in Trinidad, unless teaching math at school, which is very far from her real capacity, and a brain surgeon will serve humanity better in a research hospital in Washington DC than in a however needed medical facility in the Central African Republic. In the light of these considerations it is impossible but to agree with Henderson that ‘[t]he chief general cause of brain drain appears to be the lack within developing nations of efffective demand for professionals despite the presence of almost unlimited need’.142 Going back to the law, whatever ideology a state blocking the movement of highly skilled people adopts, such obstacles on their movement are ‘totally contrary to the Covenant’143 – which is a point of overwhelming general consensus in the literature. While using ‘brain-drain’ as an excuse for pointless and legally unjustifijiable restrictions on the right to leave a country including one’s own can have very negative consequences, even more fundamental rights of individuals are being limited with the recourse to fijighting terror as a justifijication. Such limitations at times avoid any due process of law. Once the freedom of terror suspects is limited they cannot enjoy the right to leave. Guantánamo Bay is an extreme example, but there are plentiful milder ones, which are potentially as far-reaching, however, as far as their potential to limit the enjoyment of the rights under ICCPR is concerned. A case in point concerns the British Control Orders, limiting the liberty of suspected terrorist without bringing them to justice in the traditional sense.144 The British Prevention of Terrorism Act 2005 allows the State to single out suspected terrorists who have not yet committed any crime and who cannot be prosecuted with the use of the ordinary criminal justice system for the lack of evidence and impose ‘Control Orders’ on them with a view of preventing the likely terrorist activities. Any Control Order comes with a number of conditions which the Controlled person has to fulfijil. The failure to do so, as of itself, can result in criminal prosecution. Baroness Hale of Richmond writes: The conditions were designed to make monitoring the controlled persons’ activities easier and less burdensome for the security services and to cut the controlled persons offf from their previous associations. [Such persons] were each required to live at 142

Gregory Henderson, The Emigration of Highly Skilled Manpower from the Developing Coun-

143

Jagerskiold (n 16) 178.

tries (UNITAR 1970) 146 (emphasis in the original). 144 For analysis, see Hale (n 129) 383. For the legal analysis of the context of preserving freedoms while reinforcing security, see Clive Walker, ‘Keeping Control of Terrorists without Losing Control of Constitutionalism’ (2007) 59 Stanford LR 1395.

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Chapter 8 – Dimitry Kochenov a specifijied address, usually not where they lived before and usually alone; to remain within the specifijied area when they left that address; to wear an electronic tag; to have only one land-line telephone and no internet access; to submit to searches whenever required; and to have all visitors or pre-arranged meetings outside their addresses (...) vetted in advance.145

This system, is in a drastic contradiction with a number of rights and was subject to litigation, concerning, especially, the conditions imposed on the controlled persons.146 In the cases when the restrictions on movement of suspected terrorists are construed with due care, i.e. where the national authorities justify limitations of Article 12 ICCPR with the use of national security as a credible and legitimate concern, such restrictions will be tolerated by international law, as the UN Human Rights Committee has demonstrated on a number of accounts.147 VI.

Conclusion

It is unquestionable that the possibility to leave reinforces liberty at the level of individuals and the respect of the laws at the level of societies.148 The right to leave is of indispensable importance and should be regarded in a much broader context that a limited and practically weak reflection, which it received in International Law: it goes to the essence of liberty and democracy. This importance notwithstanding, it is clear that international law is practically powerless to ensure that the right is respected. This will not change in the near future, as the right is framed in such a way that it does not correspond to the right to enter any State in a situation when the combination of the two is absolutely vital in 145

Hale (n 129) 393.

146 See eg House of Lords, Secretary of State for the Home Department v JJ. and others [2007] UKHL 45, [2007] 3 WLR 642; House of Lords, Secretary of State for the Home Department v E. and another [2007] UKHL 47, [2007] 3 WLR 720; House of Lords, Secretary of State for the Home Department v AF [2007] UKHL 46, [2007] 3 WLR 681. 147

See eg Ismet Celepli v Sweden (1991) 5 Selected Decisions of the Human Rights Committee 83; Samira Karker v. France (2000) UN Doc CCPR/C/70/D/833/1998. Both cases are analysed by Harvey and Barnidge (n 16) 9–12.

148 Whelan (n 16) 639. This is known since the ancient times: “As Socrates suggests in the Crito, a presumption of consent to obey the laws is more plausible when the laws permit emigration.”

The Right to Leave Any Country Including One’s Own

order to ensure the movement of people across borders. At the same time, ‘control over migration remains one of the last bastions of the truly sovereign state’,149 which is unlikely to be relinquished and makes the creation of a truly enforceable right of movement between States practically impossible. Yet, a number of positive developments of the last decades should be mentioned. Today more people can enjoy the right to leave than ever before. Fundamental changes in the geopolitical situation in the world following the collapse of the Soviet Union resulted in a radical change of approach to the ability to leave in a number of national constitutional systems. The UN followed suite, reflecting the broadening of the international consensus on this matter. Moreover, in a growing number of jurisdictions the competence over migration is not any more per se within the realm of absolute discretion of administrations: ‘rule of law may be emerging as a counter to traditional executive free reign in matters of migration law’.150 This corresponds to the general shift in the approach to the essence of constitutionalism around the world, where the culture of authority is being substituted by the culture of justifijication.151 All in all, however, ‘[t]he question of the right to travel as a fundamental freedom remains essentially a matter for local jurisdiction’.152 To agree with Edwards, ‘as lawyers, we sometimes overstate the efffect of the legal system on state behaviour, ‘agenda setting, and the protection and empowerment of individuals’,153 which has exactly been the case with the right to leave any country including one’s own, as reflected in international law. The system of guaranteeing the right as it now stands in International Law simply does not work. This is not to conclude that there is no right, as Goodwin-Gill has done.154 The right, which mobilizes broad international consensus, is bound not to be implemented properly. What could be the ways to remedy this situation? The most obvious starting point in thinking in this direction would be through formulating an obligation, corresponding to the right. However, the very nature of international law as it stands today makes this impossible in practice. 149

Vincent Chetail, ‘Freedom of Movement and Transnational Migrations: A Human Rights Perspective’ in T Alexander Aleinikoff and Vincent Chetail (eds), Migration and International Legal Norms (TMC Asser Press 2003) 47.

150

Dauvergne (n 11) 588.

151

Cohen-Eliya and Porat (n 117).

152

Goodwin-Gill (n 98) 50.

153

Alice Edwards, ‘Human Security and the Rights of Refugees: Transcending the Territorial

154

Goodwin-Gill (n 15) 97.

and Disciplinary Borders’ (2009) 30 Michigan JIL 763, 767.

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9

Deportation and Expulsion Clifford Mailer*

I.

Introduction

This chapter examines with the diffferent regimes of deportation and expulsion or removal under United Kingdom and European law. Deportation has to be distinguished from other forms of compulsory removal which only bring a particular application or entry to an end, even though this may create difffijiculties for an immigrant seeking to enter in the future.1 There are powers given for administrative removal from the United Kingdom, which is in contrast to removal by deportation. Immigrants who are liable to removal include those refused leave to enter; illegal entrants; overstayers, those in breach of their conditions of stay; those using deception to remain; former refugees; family-members of those liable to removal, and crew-members remaining unlawfully. I have provided in the Appendix the factual backgrounds of actual cases that I have dealt with recently. Readers can have the opportunity of digesting their facts and thus get a ‘flavour’ of their complexity. Special care and anxious scrutiny must always be given to such cases where the efffects of a deportation or removal order can be traumatic and far-reaching. Two of these cases were appeals against deportation orders that came before the Immigration Tribunal deportation panel over which I presided. The third case was an appeal against a removal decision following an alleged breach of immigration provisions. *

Clifford Mailer is an Immigration Judge, UK and Barrister at Goldsmith Chambers, London.

1

Ian A MacDonald and Frances Webber, MacDonald’s Immigration Law and Practice: First Supplement, vol 1 (8th ed, Butterworths Law 2011) 1272.

Sir Richard Plender (ed.), Issues in International Migration Law Copyright 2015 Koninklijke Brill NV. Printed in The Netherlands. ISBN 978-90-04-20851-3 pp. 179-200

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II.

Deportation

Deportation from the United Kingdom can arise with respect to both non-British citizens and EEA Nationals. Deportation concerns the process whereby a non-British citizen can be compulsorily removed from the United Kingdom and prevented from returning unless the deportation order is revoked.2 The deportation order continues in force until it is revoked. There is a separate statutory regime relating to deportation of EEA nationals. This is set out in Directive 2004/38/EC of the European Parliament and the Council of the European Union, dated the 29th April 2004. That Directive was implemented into United Kingdom by the Immigration (European Economic Area) Regulations 2006 – ‘the 2006 Regulations’. In particular, it is provided under the 2004 Directive that before taking an expulsion decision on grounds of public policy or public security, the host member state is required to take account of various considerations set out in Article 28 as implemented in the 2006 Regulations. I shall refer in due course to these considerations in some detail. 1.

Grounds of Deportation

A person who is not a British citizen and exempt is liable to deportation from the United Kingdom in accordance with the provisions of section 32 of the UK Borders Act 2007 in the following circumstances: (i) following conviction for a criminal offence attracting at least one single sentence of imprisonment of twelve months or more;3 (ii) the Secretary of State deems his or her deportation to be conducive to the public good;4 (iii) another member of the family to which he or she belongs is to be deported;5 or (iv) a court recommends deportation in the case of person over the age of 17, after conviction of an offfence punishable by imprisonment.6 Prior to October 2006, there would have been other categories of persons liable to deportations such as overstayers and illegal entrants who are now liable to administrative removal. The regime created by the UK Borders Act 2007, which came into force in August 2008, introduces automatic deportation provisions. There is a statutory pre2

Immigration Act 1971, ss. 5(1) and 5(2)

3

UK Borders Act 2007, s 32

4

Immigration Act 1971, s 3(5)(a) as amended

5

Immigration Act 1971, s 3(5)(b) as amended

6

Immigration Act 1971, s 3(6).

Deportation and Expulsion

sumption, therefore, that a deportation to which section 32 applies is conducive to the public good for the purpose of section 3(5)(a) of the 1971 Immigration Act. The Home Secretary must make a deportation order in respect of “foreign criminal” as defijined. A foreign criminal is a person who is not a British citizen and who has been sentenced to a period of at least twelve months’ custody. The other category relates to those sentenced to a period of imprisonment following conviction of for serious criminal offfences as specifijied by order of the Secretary of State. If those two conditions apply, then deportation is automatic. However, automatic deportation is constrained by and subject to certain statutory exceptions set out in the 2007 Act. Deportation may be resisted where the foreign national can demonstrate that removal would breach the Refugee and Human Rights Conventions, or European Community Law, or where the Secretary of State thinks the foreign criminal was under the age of eighteen on the date of conviction.7 Where a foreign criminal is subject to extradition proceeding, or where they are subject to certain provisions of mental health legislation, they are exempted from deportation. The United Kingdom parliament has therefore provided that, where the relevant condition in section 32 of the UK Borders Act 2007 are met, the Home Secretary has no discretion but must, subject to section 33, make a Deportation Order, and that the Deportation Order of the foreign criminal is conducive to the public good. Legislative policy has thus stipulated what was formally the fijield of executive policy.8 Accordingly, where the conditions apply, it is not open to an appellant to argue that his deportation is not conducive to the public good. Nor is it necessary for the Home Offfijice to argue that it is. 2.

Grounds for Deportation Where Automatic Deportation Does Not Apply

Where the conditions under the 2007 Act have not been met, for example – where the sentence of imprisonment is for less than twelve months, the Home Secretary can rely on section 3(5)(a) of the Immigration Act 1971, which provides that a person is liable to deportation where the Secretary deems his deportation to be conducive to the public good, another member of the family to which he belongs is to be de-

7

UK Borders Act 2007, s 33.

8

MK (Deportation – Foreign Criminal – Public Interest) Gambia [2010] UKUT 281 [23].

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ported; or a court recommends deportation after conviction of an offfence punishable by imprisonment.9 Accordingly, apart from the automatic deportation provisions in the UK Borders Act 2007, the general rule for deportation is contained in the Immigration Rules.10 This applies to decisions to deport on conducive grounds, or for family reasons, or where a criminal court makes a recommendation to deport but gives a sentence below the automatic deportation threshold. Paragraph 364 of the Immigration Rules, which applies to a decision taken after 20 July 2006, provides that: Subject to paragraph 380, while each case will be considered on its own merits, where a person is liable to deportation, the presumption shall be that the public interest requires deportation. The Secretary of State will consider all relevant factors in considering whether the presumption is outweighed in any particular case, although it will only be in exceptional circumstances that the public interest in deportation will be outweighed in a case where it would not be contrary to the Human Rights Convention and the convention protocol relating to the status of refugees to deport. The aim is an exercise of the power of deportation which is consistent and fair as between one person and another, although one case will rarely be identical to another in all material respects. In the cases detailed in paragraph 363A, deportation will normally be the proper course where a person has failed to comply with or has contravened a condition or has remained without authority.

3.

The Deportation of an EEA National

EEA Nationals who have committed offfences in the United Kingdom are also liable to removal or expulsion under the regime of the 2004 Citizens Directive. This contains public policy provisos and incorporates some of the case law clarifijications and developments. The provisions of the Directive are implemented in the 2006 Regulations, namely regulations 19-21. I am not dealing with the much broader category of persons potentially subject to removal who, for example, have ceased to have a right to reside, for example by ceasing to qualify where there is no aspect of conduct that brings public policy into play. Where a person ceases to qualify as a worker under the Directive, this is arguably not the same at all as a breach of conditions of leave applying to non-EEA

9

Immigration Act 1971, ss 3(5)(a), 3(5)(b) and s 3(6).

10

Immigration Rules (HC 395), as amended, para 364.

Deportation and Expulsion

Nationals where there is the sanction of removal. Often employment is interrupted through illness or involuntary unemployment or pregnancy. Regulation 19 – Exclusion and removal of EEA nationals from the United Kingdom Under Part 4 of the 2006 Regulations, it is provided in Regulation 19(3) that an EEA National who has entered the United Kingdom or a family member of such a national who has entered the United Kingdom may be removed if he does not have or ceases to have a right to reside under these regulations or the Secretary of State has decided that the person’s removal is justifijied on grounds of public policy, public security or public health in accordance with Regulation 21. Under Regulation 21(1), a relevant decision means an EEA decision taken on the grounds of public policy, public security or public health. Such a decision may not be taken to serve economic ends. Regulation 21(5) provides that where a relevant decision is taken on the grounds of public policy or public security, it shall, in addition to complying with the preceding paragraphs of this Regulation, be taken in accordance with the following principles: (i) the decision must comply with the principle of proportionality; (ii) the decision must be based exclusively on the personal conduct of the person concerned; (iii) the personal conduct of the person concerned must represent a genuine, present and sufffijiciently serious threat afffecting one of the fundamental interests of society; (iv) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision; and (v) a person’s previous criminal convictions do not in themselves justify the decision. Under Regulation 21(6), it is provided that before taking a relevant decision on the grounds of public policy or public security in relation to a person who is resident in the United Kingdom, the decision maker must take into account considerations such as age, state of health, family and economic situation, the person’s length of residence in the United Kingdom, the person’s social and cultural integration into the United Kingdom and the extent of the person’s links with his country of origin. LG and CC (EEA Regs: Residents: Imprisonment; Removal) Italy is a leading UK authority.11 At paragraph 14 of the Court of Appeal decision, Canworth LJ noted that the 2006 Regulations had introduced a new hierarchy of levels of protection, based on criteria of increasing stringency. For EEA nationals there are three levels of additional protection against removal. Each level is intended to be more stringent and narrower than the immediately 11

LG and CC (EEA Regs: Residents: Imprisonment; Removal) Italy [2009] UKAIT 24.

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lower test. Accordingly, the host member state may not take an expulsion decision against a Union citizen or family member who has the right of permanent residence on its territory, except on serious grounds of public policy or public security.12 If they have resided in the host member state for the previous ten years, or are a minor, an expulsion decision may not be taken against Union citizens except if it is based upon imperative grounds of public security as defijined by member states. The Court of Appeal held that the words ‘imperative grounds of public security’ in the Citizens’ Directive clearly mandate a very high standard before an EEA National could be deported.13 The least stringent criterion applies to an Appellant, who has been in the United Kingdom for example, since 2008 and does not have a permanent right of residence within the Regulations. At paragraph 105 of LG, it was held that even at this lowest level of the hierarchy, it is necessary to bear in mind the requirements set out in Article 27(2) of the Directive that measures taken on the grounds of public policy or public security must comply with the principle of proportionality and be based on the personal conduct of the individual concerned. Regard must also be had to the considerations referred to in Article 28(1) including the length of time the individual has resided in the territory of the member state, his age, state of health, family and economic situation, social and cultural integration into the host member state and the extent of his links with the country of origin. At paragraph 106, the Tribunal contrasted the lowest level of the hierarchy with the next level constituting a more stringent requirement requiring ‘serious grounds’. Accordingly, persons with permanent rights of residence cannot be removed except on serious grounds of public policy or public security. The Tribunal referred to the Immigration Directorate Instructions where a conviction for any of a number of listed offfences might constitute ‘serious grounds’. The list of offfences represents guidance rather than prescription, and properly represents a high level of seriousness. The Tribunal stated that ‘one can imagine, for example, a serial shoplifter being properly removable under Level 1, but being unlikely to represent the level of 12 13

Regulation 21(3) of the 2006 Regulations. The other interesting feature provided in that case is that an EEA National who has been convicted of a crime and who has been detained for a significant period in prison or other penal institution, was not resident in the UK for the purpose of the provisions. Residence means presence in the UK and the exercise of the rights and freedoms conferred by the EC Treaty. Accordingly the amount of time spent in prison does not count toward the acquisition of the level of protection afforded to an EEA National by Regulation 21(4), even for a person who has a right of permanent residence in the UK.

Deportation and Expulsion

risk that is required to be posed in the case of a person with a right of permanent residence’. In EEA deportation cases, regard must therefore be had to the level of protection affforded. Can a decision to expel simply be taken on the grounds of public policy or public security? Must the decision be taken only when there are ‘serious grounds of public policy or public security’ or must a decision not be taken except on ‘imperative grounds of public security’? It all depends on the extent and nature of the rights of residence that the particular Appellant has. In all cases, however, the principles set out in paragraph 21(5) and especially the principles of proportionality and the fact that the personal conduct of the person concerned must represent a genuine, present and sufffijiciently serious threat afffecting one of the fundamental interests of society must be given efffect to. 4.

Removal and Expulsion: Non-deportation Cases

This deals with the other main category of removal from the national state. As already indicated, those who are liable to removal include those refused leave to enter; illegal entrants; overstayers, and those in breach of their conditions of stay; those using deception to remain; former refugees; family members of those liable to removal, and crew members remaining unlawfully.14 It is a matter of fact whether a person is for example an illegal entrant, that is to say a person unlawfully entering or seeking to enter the United Kingdom in breach, for example, of a deportation order or of the immigration laws or entering or attempting to enter by means including deception or using false documents. Nice questions arise as to whether the deception or fraud must be decisive of the application, i.e. leave would not have been granted but for the deception, or to mere materiality, in the sense that it was likely to influence the decision. They are cases where a person arrives at the port and is examined by an immigration offfijicer. Sometimes the examination is left incomplete and further enquiries have to be made. In those cases there is provision for ‘temporary admission’ under the Immigration Act 1971. The curious feature is that under the Act, persons on temporary admission are not deemed to have “entered” the United Kingdom unless they have ‘otherwise entered’. Accordingly, absconders and those in breach of conditions of temporary admission may be detained, refused leave and summarily removed. They may also be treated as illegal entrants, for example by breaking conditions of temporary admission. They

14

Supra n. 1, 1329.

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have therefore otherwise entered the United Kingdom without obtaining a leave to enter. Other common categories are overstayers or those who have breached conditions of stay. This includes their family members. This includes those who have unsuccessfully used deception in seeking leave to remain and persons ceasing to be refugees whose indefijinite leave to remain has been revoked. These persons, who are to be removed, will be given written notice of the decision, following which the immigration offfijicer may authorise detention or the making of an order restricting residence, employment or occupation, or imposing reporting conditions pending removal. Notifijication of the decision to remove in accordance with the relevant section invalidates any leave to enter or remain in the United Kingdom which was previously given to the person. The efffect of this is that a person’s benefijits, fijinancial or otherwise, which may have depended upon the leave which he had, may cease. Failure to observe conditions or to remain beyond the time limited by the leave makes a person liable to removal under s.10 of the Immigration and Asylum Act 1999. Thereafter, if there is a decision to remove which involves the exercise of a discretion, the Secretary of State must establish the facts giving rise to the power to remove although reasonable suspicion is enough to justify detention. Another example occurs where a refugee who may have indefijinite leave to remain may have voluntarily availed himself of the protection of his country of nationality or have reacquired a lost nationality or have availed himself of the protection of a country other than the United Kingdom. In that case, he will cease to be a refugee and once his indefijinite leave is revoked, he is liable to removal. Separate rights of appeal against the revocation of indefijinite leave as well as against removal after revocation apply. The decision to remove is capable of being challenged. If it is alleged that a person is an overstayer or that he has breached conditions or that he has sought to obtain leave to remain by deception these will constitute immigration decisions as defijined which give rise to a right of appeal under the relevant statute. Similarly, a decision to remove a person as an illegal entrant is likewise an immigration decision as is the decision to remove a family member of such a person. No decision to remove will be taken whilst an appeal of revocation is pending in the United Kingdom. All potential grounds of appeal are available, including the submission that the decision is not in accordance with the law. That enables arguments about whether the condition precedent for removal in each case is met and whether the specifijied country of destination is a lawful one. Appeals against the decision to remove are not suspensive of removal and are out of country, unless the appeal is against an EEA decision concerning a person’s removal from the United Kingdom or the person has made an

Deportation and Expulsion

asylum or human rights claim in the United Kingdom which has not been certifijied as being clearly unfounded.15 5.

Resisting Deportation and Removal

Many of the appeals that come before the Tribunal are based on an assertion that the removal will result in the United Kingdom breaching its obligations under the Geneva Convention relating to refugees or being in breach of the Human Rights Convention, either in respect of Articles 3 or 8. In a very important decision in JO; JT v. Secretary of State for the Home Department, the Court of Appeal considered and analysed the various Strasbourg decisions.16 It concluded at paragraphs 26 and 27 that concentration on whether family members can reasonably be expected to relocate with the Applicant ensures that the seriousness of the difffijiculties that they are likely to encounter in the country to which the Applicant is to be deported is properly assessed as a whole and is taken duly into account together with all other relevant matters in determining the proportionality of deportation. It must also be borne in mind that even if the difffijiculties do make it unreasonable to expect family members to join the applicant in the country to which he is to be deported, that will not necessarily be a decisive feature in the overall assessment of proportionality. It is an important consideration but may not be determinative since it is possible in the case of sufffijiciently serious offfending that the factors in favour of deportation will be strong enough to render deportation proportionate even if it does have the efffect of severing established family relationships. The Court of Appeal also emphasised the material diffference between deportation and removal cases concerning the pursuit of diffferent legitimate aims. In deportation cases, it is the prevention of disorder or crime, and in ordinary removal cases, it is the maintenance of efffective immigration controls. The diffference is important because the factors in favour of expulsion are capable of carrying greater weight in a deportation case than in the case of ordinary removal. The protection of society against serious crime is even more important than the maintenance of efffective immigration control and can properly be given correspondingly greater weight in the balancing exercise. It is perfectly possible in principle for a given set of considerations of family life to be sufffijiciently weighty to render expulsion disproportionate in 15

Nationality, Immigration and Asylum Act 2002, s 92(4(a)) and 94(2).

16

JO (Uganda); JT (Ivory Coast) v Secretary of State for the Home Department [2010] EWCA CIV 10.

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an ordinary removal case yet insufffijicient to render expulsion disproportionate in a deportation case because of the additional weight to be given to the criminal offfending on which the deportation decision was based. The European Court of Human Rights has dealt with the circumstances where expulsion of an alien can give rise to a violation of Article 8 of the Human Rights Convention – Üner v., The Netherlands.17 Reference was made to the decision of Boultif v Switzerland, where the Court elaborated the relevant criteria which it would use in order to assess whether an expulsion measure was necessary in a democratic society and proportionate to the legitimate aim pursued.18 Those criteria are as follows: – the nature and seriousness of the offfence committed by the Applicant; – the length of the Applicant’s stay in the country from which he or she is to be expelled; – the time elapsed since the offfence was committed and the Applicant’s conduct during that period; – the nationalities of the various persons concerned; – the Applicant’s family situation, such as the length of a marriage and other factors expressing the efffectiveness of a couple’s family life; – whether the spouse knew about the offfence at the time when he or she entered into a family relationship; – whether there are children of the marriage, and if so, their age; and – the seriousness of the difffijiculties which the spouse is likely to encounter in the country to which the Applicant is to be expelled. In resisting deportation or removal an Appellant will sometimes raise the right for his private life to be respected under Article 8. The idea is that individuals, including the Appellant, develop relationships with others by living and engaging in society in the country where they live. The totality of social ties between the Appellant and the community in which he lives constitutes part of the concept of private life within the meaning of Article 8 – Maslov v Austria.19 The expulsion of a settled migrant therefore constitutes an interference with his right to respect for private life. In important decision by the Tribunal in MM (Tier 1) BSW; Art 8; “Private Life” (Zimbabwe),20 the panel held that whilst respect for ‘private life’ in Article 8 does not include a right to work or study per se, social ties and relationships (depending upon their duration and richness) formed 17

Üner v The Netherlands App no 46410/99 (ECtHR, 18 October 2006).

18

Boultif v Switzerland App no 54273/00 (ECtHR, 02 August 2001).

19

[2009] IMLR 47 at paragraph 63.

20

MM (Tier 1) BSW; Art 8; “Private Life” (Zimbabwe) [2009] UKAIT 37.

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during periods of study or work are capable of constituting private life for the purposes of Article 8. When determining the issue of proportionality in such cases, it will always be necessary to evaluate the extent of his social ties and relationships in the United Kingdom. The duration and richness of the social ties will be the important factors in determining the extent of his private life. This relates to whether he has developed close personal or social ties or close relationships which have developed over time. The questions will be whether he can establish that the decision afffects his private life suffijiciently seriously to engage Article 8, and if so, whether the interference is justifijied. The questions to be asked are summarised by Lord Bingham in an appeal against removal on Article 8 grounds as given by the House in Razgar v SSHS.21 Those questions are: Will the proposed removal be an interference by a public authority with the exercise of the Appellant’s right to respect for her private or family life? If so, will such interference have consequences of such gravity as potentially to engage the operation of Article 8? If so, is such interference in accordance with the law; If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others? If so, is such interference proportionate to the legitimate public ends sought to be achieved? Further guidance from the House of Lords in the context of Article 8 appeals regarding third parties is provided by the decision in Beoku-Betts v SSHD.22 The direct impact on other family members could be considered in an appeal under Article 8 against an immigration decision. The right to respect for the family life of one necessarily encompasses the right to respect for the family life of others with whom that family life was enjoyed. Recent decisions There have been several seminal decisions recently in the context of removal decisions and Article 8, where the Courts have stressed the importance and signifijicance of balancing the best interests of a child against the competing factors. The Courts are now emphasising the relevance of the 1989 Convention on the Rights of the Child – CRC – and in particular the core articles: Article 2 – non-discrimination principle; Article 3 – best interests principle; Article 6 – right of chil-

21

Razgar v SSHS [2004] UKHL 27.

22

Beoku-Betts v SSHD [2008] UKHL 39.

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dren to life, development and survival; and Article 12 – views of children to be given due weight. A.

UK Cases 23

ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 decided by the Supreme Court on 1 February 2011 The Supreme Court held that the best interests of a child who was a British citizen had to be a primary consideration when considering whether a decision to remove the child’s mother to another country was proportionate under Article 8 of the European Convention on Human Rights. The Court sought to identify the proper approach as regards the balancing act between as Lord Hope put it: ‘the need to maintain a proper and efffijicient system of immigration control and the principle that, where children are involved, the best interests of the children must be a primary consideration’. Key points include: that the British citizenship of the children was not a ‘trump card’ preventing the removal of their mother since there is no ‘hard-edged or brightline rule’ to that efffect. Due consideration must be given to the facts of each particular case, to the impact of the removal on all members of the family unit, and also to the rights of the children to respect for their family and private lives, as set out under the CRC. These CRC obligations are now (at least partially) reflected in the duty of the Secretary of State under section 55 of the Borders, Citizenship and Immigration Act 2009 providing that account must be taken of the need to safeguard and promote the welfare of children who are in the United Kingdom. The Supreme Court examined various Strasbourg cases and emphasized that the obvious starting point is that states are entitled to control the entry of aliens into their territory and their residence there. Even if the alien has a very strong residence status and is well-integrated she or he cannot be equated with a national. Article 8 does not give them an absolute right to remain. (And mixed nationality couples have no right to set up home in whichever country they choose.) However, if expulsion will interfere with the right to respect for family life, it must be necessary in a democratic society and proportionate to the legitimate aim pursued. Among the relevant factors to be considered here are: the best interests and well-being of the children.

23

I am obliged to Jenny Kuper for the up to date cases as given at a recent conference for UT judges.

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Other factors to be taken into account include the extent of the ties in the contracting state, and also whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that family life within the host state would from the outset be precarious. Nonetheless, there is a growing trend in the European case law away from a concentration on the failings of the parents and towards a focus on the best interests of a child caught up in a dilemma which is of their parents’ and not of their own making The CRC is relevant here, since both UK law and Strasbourg law must take account of applicable international law, including of course Article 3 of the CRC stating that the best interests – i.e. broadly, the well-being – of the child must be a primary consideration. That is not the primary consideration, or paramount consideration. Identifying best interests does not necessarily lead to a decision in conformity with those interests, but it is important that those best interests are considered fijirst. They can then be outweighed by the cumulative efffect of other considerations. Relevant here will be the level of the child’s integration in this country and the length of absence from the other country; where and with whom the child is to live and the arrangements for looking after the child in the other country; and the strength of the child’s relationships with parents or other family members which will be severed if the child has to move away. Nationality is also of particular importance in assessing the best interests of any child. Moving to another country would mean children may lose the advantages of growing up and being educated in their own country, their own culture and their own language. Acknowledging that the best interests of the child must be a primary consideration in these cases raises the question of how these are to be discovered. An important part of this is discovering the child’s own views. Article 12 of the CRC provides the right to child participation. In most immigration situations, the interests of diffferent family members are unlikely to be in conflict with one another. Separate legal (or other) representation will rarely be called for. The important thing is that those conducting and deciding these cases should be alive to the point and prepared to ask the right questions – the immigration authorities must be prepared at least to consider hearing directly from a child who wishes to express a view and is old enough to do so.

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R (on the application of Reece-Davis) v Secretary of State for the Home Department, Queen’s Bench Division (Administrative Court) 25 February 2011 Given the statutory obligation which now existed to discharge immigration functions having regard to the need to promote the welfare of any children, the Secretary of State’s decision that a person whose leave to remain had been cancelled would have no realistic prospect of success in an appeal to an immigration judge could not stand. Since the immigration judge’s decision, there had been a distinct shift in the United Kingdom’s attitude to children’s rights where an immigration decision was to be taken. It had shifted from a position where the maintenance of immigration control was expressly preserved as the primary consideration to one where the United Kingdom had to treat the best interests of a child as ‘a primary consideration’ when an immigration decision was to be taken afffecting him or her. That shift was reflected in the enactment of section 5 of the Borders, Citizenship and Immigration Act 2009 and the guidance that ensued in November 2009, wherein a child’s interests were emphasised even where that child was subject to immigration control. The core question raised on the facts of this case was whether the legitimate need to maintain a fair and fijirm system of immigration control, where the immigration history of the parent or parents was poor, was a factor capable of outweighing the best interests of the children. In the light of the statutory obligations which now existed under sesction 55, namely to discharge immigration functions having regard to the need to promote the welfare of the children and to have regard to the relevant guidance, and in the light of the judgment of the Supreme Court in ZH (Tanzania) v Secretary of State for the Home Department,24 the Secretary of State’s decision that there would now be no realistic prospect of success in an appeal to an immigration judge could not stand, ZH followed. The Secretary of State would be directed to accept the further representations as giving rise to a fresh claim and therefore a right of appeal to the Firsttier Tribunal (see paras 20–24 and 28–29 of judgment).

24

ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4.

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B.

New Zealand Cases

Ye and Ors V Minister of Immigration and Anor Sc [20 July 2009]. In the Supreme Court of New Zealand. Sc 53/2008. [2009] NZSC 76 Cases concerning judicial review of decisions declining to cancel removal orders regarding two Chinese families. In both cases appeals against the decisions were allowed and it was ordered that the cases should be reconsidered. The two appeals concern the legal basis on which overstayers may be permitted to remain in New Zealand on humanitarian grounds when the overstayers are parents of children born in New Zealand at a time when those children attained New Zealand citizenship at birth (Automatic entitlement to New Zealand citizenship by birth was discontinued as of 2006). The children themselves could not therefore be removed from New Zealand. One important issue is the extent to which the interests of such children should feature in the necessary decision making – bearing in mind New Zealand policy that in general overstayers should be compulsorily removed without delay. They can however be allowed to remain if there are humanitarian considerations of a sufffijiciently unusual kind and their overstaying would not undermine the integrity of the immigration system. Points of note in judgment: the 1987 Immigration Act should be interpreted in a way that is consistent with New Zealand’s obligation to observe applicable international instruments, and particularly in this case the CRC. Thus the relevant provisions of the Immigration Act must be interpreted so that the interests of New Zealand citizen children are always regarded as ‘a primary consideration’ in the decision-making process. This phrase does not denote how this consideration ranks against any other relevant consideration such as the public interest. The child’s interests are always important, but what ultimate efffect should be given to them is a matter of assessment against all the other relevant circs of the particular case (25) regarding representation of children/natural justice – the essential question is how the interests of children in removal cases can best be identifijied and taken into account by the immigration offfijicer and the courts. The starting point must be that those interests should ordinarily be advanced and represented by the relevant parent or parents. BUT there may be circumstances in which the parent(s) cannot adequately represent the child’s interests. Decision-makers must be alive to this possibility and make reasonable arrangements to ensure that, if this is the case, everything relevant to the interests of the child comes to the decision-makers’ attention – e.g. matters including schooling, health and general integration issues.

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The second question arising under this head concerns whether and when children should be made parties to litigation or be separately represented. Again, children’s interests should be represented by parents BUT a child may need separate representation if there is good reason to believe that the parent will not adequately represent the child’s interests. In that event the court should appoint counsel to represent the child. Also, the court stated as regards one case that the proper approach was not to look at the interests of the children on the premise that their mother was to be removed to China, but rather to ask whether their mother should be removed from New Zealand in the light of the best interests of her children. NOTE: a relevant consideration is the efffect of China’s one-child policy. Appellants argued that this policy would mean the children being labeled ‘black children’ – and this could result in limited access to health and education services, and also a possible fijine for breaching the policy. AB (South Africa) v Minister of Immigration [2010] NZIPT 500103 (Immigration and Protection Tribunal – NZ) – 24 Dec 2010 Appeal against removal by a South African woman who had come to New Zealand in 2007 with her then husband, her 7 year old stepdaughter and her 4 year old daughter, in which leave to appeal was granted The primary ground advanced in support of the appeal was that the best interests of both the appellant’s 4 year old daughter and 7 year old stepdaughter lay in the appellant remaining in New Zealand, as this would avoid her daughter being separated from her father and her half-sister (both of whom had been granted New Zealand residence). Separation would be detrimental to both children since they had close connections with each other and with both parents. The key issue was whether the best interests of the two children amount to exceptional humanitarian circumstances in terms of the statutory test allowing cancellation of a removal order. Relied on Ye case. Held that the best interests of both children are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be removed from New Zealand. NOTE: the distress caused to both children by long-term separation from each other and one of their parents ‘will afffect the children’s health contrary to their rights set out in Article 24 of the CRC’. (11(c)) I hope that this paper has shown the complexity that can arise from cases of deportation and removal where reliance is placed on international conventions in-

Deportation and Expulsion

cluding the Refugee Convention and ECHR. It is often a very difffijicult exercise to decide what weight should be given to the competing factors. That is especially so where young children are potentially afffected.

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Appendix

Case 1 – Rule 364 of the Immigration Rules, HC 395 as amended The Appellant is an Ethiopian. He was aged 27 at the date of his appeal. He spent the fijirst 12 years in Ethiopia and the next fijifteen years in the United Kingdom. He built up social and cultural ties in both countries. He entered the United Kingdom on 3rd January 1994 with his brother and sister. He claimed asylum as a dependant of his sister on 10th February 1994. That was refused and he was granted exceptional leave to remain. In July 2002, he applied for indefijinite leave to remain. His application was subsequently refused. He has, since he entered the United Kingdom, amassed an extensive criminal record. He has 46 convictions for 110 offfences between 19th May 1997 and his most recent conviction on 17th March 2009. The Home Secretary accepted that he had established a private life in the United Kingdom. However, he had not entered into a relationship with another person who could be considered as his partner. His siblings have indefijinite leave to remain in the United Kingdom. His deportation would constitute an interference with his private life, but that would be proportionate. The Appellant’s case was that he lived with foster parents in the United Kingdom from the age of 12 until he was 16. He completed secondary school. He started offfending after he left school. As a result of peer pressure he “stupidly” chose the wrong path in his teenage years. During his youth he was living in children’s homes. He had contact with his brother and sister. He also worked in restaurants or did delivery jobs in London from time to time. He said that he met a girl and moved to Brighton where she lived. He claimed that she is pregnant with his child. He wishes to be a good, responsible, positive member of society. He claimed to have been with her for roughly fijive years. She was 12 weeks pregnant and he claimed to be the father. He was interviewed by the probation offfijicer and initially told him that he was the one who had been assaulted in his offfence of assault for which he had been found guilty after trial. On further probing, however, he accepted that he had been found guilty of assault and accepted that he must have done it. He was then in breach of an 18 month conditional discharge imposed in March 2007. He stated at interview with the probation offfijicer that he had had enough of offfending and wanted to move away from his current lifestyle.

Deportation and Expulsion

The probation offfijicer’s opinion was that given the acquisitive nature of the offences, his risk of harm to the public was medium to high in terms of fijinancial gain. He also poses a medium to high risk of harm in terms of violence, given the nature of his previous offfences of possession of a fijirearm, aggravated burglary and possession of an offfensive weapon. She assessed his risk of reconviction for similar offfences as high. A young woman attended the hearing and gave evidence in which she claimed that the Appellant was her boyfriend. They planned to get married and are expecting their fijirst child. In cross-examination she said that she did not give the Appellant much advice when he was involved in offfending. She claimed that he appeared to be settling down. She was referred to the offfences in November 2007 and she accepted that he did not appear then to be settling down. She said that he was stupid and irresponsible. Case 2: The European Directives – (UK EEA Regulations 2006) The Appellant is a national of Germany, originally from Sri Lanka and aged 55. He fijirst arrived in the United Kingdom in September 2006 on a German passport. He was granted an EEA registration certifijicate with his Sri Lankan wife and three children as his dependants. In December 2008, he was arrested for grievous bodily harm which he inflicted on his wife. He was convicted for that offfence and was sentenced in March 2010 to 12 months’ imprisonment. The sentencing judge stated that stated that his was a sustained attack involving 3 “hits”, a threat with scissors, a grab to the throat and further punching at the bottom of the stairs to the face and eyes. All of that was done in front of the children. “It caused your wife severe pain at the time, caused her a broken nose which had to be put right under local anaesthetic; caused her severe swelling around the eye, caused her to have a broken bone around the eye, although that was not a displaced fracture. It seems to me that that must warrant a custodial sentence and it is one of the rare cases where the Probation Services do not even suggest otherwise. That appears to be mainly because you do not appear to recognise how badly you have behaved or expressed any real remorse...” The Appellant had not acquired a right of permanent residence. He could therefore be deported on the grounds of public policy or public security. Consideration was given to the matters contained in regulation 21(5) of the 2006 Regulations. The Respondent noted that he had been assessed regarding the protection of the public. He was regarded as posing a continuing risk. The offfender manager who completed his assessment found that he posed a high risk of harm to a known adult, his chil-

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dren or future partners. The impact would be serious. It was contended that he failed to disclose the true extent of what had occurred on the day in question. He also denied having assaulted his wife in the past, namely in Germany and in the United Kingdom prior to the assault leading to his conviction. He was found to pose a low risk of re-offfending, however. He was in good health but had provided no evidence of employment at the time of his arrest. His wife sent a letter in July 2010 to the Home Secretary stating that she does not wish her husband to be deported to Germany for the sake of the children. The Respondent stated that there were no compelling circumstances as to why he could not continue his relationship with his spouse from abroad. She and the children could join him in Germany and he would be able to re-adjust to life in Germany where they used to reside. In his evidence, he stated that he fled Sri Lanka in 1985 and went to Germany. He was granted refugee status by the German government and then obtained German citizenship. He married his wife in Germany in 1997. He and his three children and wife came to the United Kingdom and have lived here since 2004. They have no family in Germany but have cousins in the United Kingdom and his wife has her sister here. He lost his temper on 24th December 2008 resulting in the assault upon his wife. He was working long hours at the time and there was an argument that developed over her obtaining Tax Credit without discussing this with him. She tried to justify her action which annoyed him and he lost his temper. He accepts that that was very wrong and he should never have done that. He “profoundly apologises to this Court and the United Kingdom Government.” He also unreservedly apologises to his wife for his actions that day. He asserts that he and his wife have reconciled their diffferences since then. However, as a result of current restrictions, he cannot return to the family home. During the 6 month period that he was detained at HMP Ford, his wife and children visited him once. Because of the distance and the costs, they could not visit him there anymore. He said that he is 56 and has been working throughout his adult life. He has never even received a caution for any reason prior to this conviction. From his assessment prior to sentencing, it was noted that his chances of reconviction or reoffending were less than 10 percent. The chances of general offfending within 12 and 24 months were assessed at 3 percent and 7 percent respectively. He does have family ties in the United Kingdom and he contends that the Respondent has incorrectly stated that he does not. He has cousins here with whom he lived when he was asked

Deportation and Expulsion

to leave the family home by the authorities in December 2008. He was released on bail to live with them whilst his criminal case was pending. Whilst in prison his wife and children visited him only once. He has had telephone contact with the family regularly. His wife stated that there were several incidents of domestic violence prior to the GBH in 2008. She said that she is prepared to give him a chance. He has learned his lesson. She can tell this from the way he speaks to her. He has become remorseful. Social Services reported that she continues to minimise the risk of assault as does he. They refer to the trauma that the children have sufffered as a result of having witnessed the domestic violence. Case 3: Removal for Breach of Immigration law M is a citizen of Ecuador. He was 56 at the date of the appeal. He applied for indefijinite leave to remain in the United Kingdom on the grounds of long residence. The Respondent refused his application under the fourteen year rule on the basis that shortly after he arrived in the United Kingdom, he had been served with a removal notice and was required to report to the airport the following day. He was granted temporary admission only. However, he absconded and remained in the United Kingdom unlawfully. The immigration rule provided that after a notice of removal is served on a person ‘the clock stops’. Accordingly he is not able to show that he had been here for fourteen years. He nevertheless relied on Article 8 of the Human Rights Convention. He stated that he was 42 years old when he arrived in the United Kingdom in 1994. When he was initially examined at the airport he stated that he had no friends or family in the United Kingdom. He told the immigration offfijicer that he was married with three children and that his family had remained in Ecuador because his children had to attend school. He told the offfijicer that he was a bus driver for the last twenty-fijive years. Removal directions were served on him and he was required to report to the airport a day or so later for a fijixed flight back to Quito. However, he did not turn up. Attempts were made thereafter to fijind him. After about fourteen years, he applied for indefijinite leave to remain under the long residence rule. In his evidence he stated that he met some Latin American people in central London who advised him to start a new life in the United Kingdom. He was advised not to go back to the airport. He consequently remained and began working in different places. He worked at various restaurants and obtained a National Insurance number. He continued to work as a chef thereafter for a cleaning fijirm.

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He claimed to have a cousin in the United Kingdom whom he saw a month ago. He also said he was married but had been separated from the mother of his two children for seventeen years. He last spoke to he about seven years ago. His three children are 34, 28 and 23 years old. He speaks with them regularly. His daughter lives in Spain and the others in Ecuador. He stated that it was always his intention to come to the United Kingdom to fijind work. He said he could not return to Ecuador because he has a daughter who is ill there and he has been supporting her from the United Kingdom. He will not be able to earn sufffijicient money to pay for her treatment. He produced evidence from the Spanish Christian community in London. They certify that he is a responsible, reliable, honest, sociable and courageous person. Several letters from the Christian community were produced giving him references. He claimed that he had a right to private life under Article 8 of the Human Rights Convention which has to be respected by the United Kingdom government. The proposed interference with his right to private life would be disproportionate in the circumstances.

10

Exceptional Duties to Admit Aliens Alessia di Pascale*

I.

Introduction

At the end of the XIX century, in the Preamble to the International Rules on the Admission and Expulsion of Aliens it was asserted that ‘for each State, the right to admit or not admit aliens to its territory or to admit them only conditionally or to expel them is a logical and necessary consequence of its sovereignty and independence’. However, well before the afffijirmation of international human rights, this assertion was completed by another statement, whose signifijicance has gained greater importance in more recent times, that ‘humanity and justice oblige States to exercise this right while respecting, to the extent compatible with their own security, the rights and freedom of foreigners who wish to enter their territory or who are already in it’.1 Based upon the traditional view, statements can be found that in the absence of treaty obligations, a state should admit aliens on such terms and conditions as it might deem to be consonant with national interest and deport from its territory those whose presence it might regard as undesirable.2 This view has however been contested more recently. As it has been pointed out ‘the emphasis on States’ freedom *

Alessia di Pascale is Research Fellow at the Dipartimento di Diritto Pubblico, Processuale Civile, Internazionale ed Europeo of the University of Milan.

1

Preamble of the International Rules on the Admission and Expulsion of Aliens, adopted by the Institute of International Law on 9 September 1892.

2

Green Hackworth, Digest of International Law, vol 3 (US Government Printing Office 1942) 717.

Sir Richard Plender (ed.), Issues in International Migration Law Copyright 2015 Koninklijke Brill NV. Printed in The Netherlands. ISBN 978-90-04-20851-3 pp. 201-222

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of action, which is found in the older text books appears misplaced’.3 It has been argued that although a State has no duty to admit all aliens who might seek to enter its territory, it could however be identifijied a qualifijied duty to admit aliens when they pose no danger to the public safety, security, general welfare or essential institutions of a recipient State. 4 Despite the theoretical conceptualizations developed in the reconstruction of the applicable principles, it can be afffijirmed that the margin of discretion belonging to states has come to be increasingly narrowed down. Already more than thirty years ago, it was argued that issues arising from the exercise of powers of exclusion and expulsion are commonly afffected by matters such as nationality and fundamental rights.5 This approach has been subsequently confijirmed by the Human Rights Committee, that in its General Comment No. 15, after clarifying that the International Covenant on Civil and Political Rights does not recognize the right of aliens to enter or reside in the territory of a state party and it is in principle a matter for the state to decide who it will admit to its territory, asserted that in certain circumstances they may enjoy the protection of the Covenant even in relation to entry or residence. This is the case, for example, when considerations of non-discrimination, prohibition of inhuman treatment and respect for family life arise.6 The European Court of Human Rights as well, while maintaining a traditional view of state sovereignty in relation to the admission and expulsion of foreigners, however, has limited state’s discretion in connection with the protection of certain fundamental rights.7 This debate, far from being an academic disquisition, assumes particular importance today as striking a proper balance between protecting the rights of all those who are inside or at its borders, and maintaining control of the borders has been defijined as one of the main challenges for the state8. In the light of this evolutionary process, reserving an increasingly signifijicant role to fundamental rights, it

3

Richard Plender, International Migration Law (Martinus Nijhoff 1988) 1.

4

James AR Nafziger, ‘The General Admission of Aliens under International Law’ in (1983) 77 AJIL 804 ff.

5

Guy S Goodwin-Gil, International Law and the Movement of Persons between States (OUP 1978).

6

UNHRC, ‘General Comment 15: Positions of Aliens under the Covenant’ (1986) UN Doc CCPR/A/41/40, para 5.

7

ibid para 4.

8

UNCHR, The Human Rights of Irregular Migrants in Europe (UNCHR 2007).

Exceptional Duties to Admit Aliens

appears appropriate to ask to what extent a state’s exceptional duty to admit aliens may be considered to exist. II.

Exceptional Duties to Admit Aliens under General and Conventional International Law

Even under the traditional international law view, which regards control on the admission in the territory as an attribution of state’s sovereignty, some groups have been considered exempt from entry control and the application of immigration rules, or enjoy certain privileges as to the admission into the territory of a foreign state. In particular, the following categories of foreigners benefijit from a particular status: diplomats and consuls, civil servants, armed forces, special missions. It has been suggested that these classes may be sui generis or their existence, in the aggregate, may indeed contradict the general claim of a sovereign right to exclude all aliens.9 In any event, while based on diffferent theoretical assumptions, it can be afffijirmed that all these categories reflect a traditional approach that assigns a prominent role to states and that, subject to the consent of the host state, operates a distinction as it is functional to state sovereignty and peaceful coexistence in the international community, without thereby creating individual’s right.10 1.

Diplomats and Consuls

The traditional and still essential tool for the unfolding of a life of relationship between the members of the international community is represented by the establishment of diplomatic relations. Such establishment, which is conducted though the sending, on a reciprocal basis, of a state’s permanent mission to another state is, however, strictly subject to mutual consent. The principle, already enshrined in Article 8, fijirst paragraph, of the Convention on Diplomatic Offfijicers signed at

9 10

Nafziger (n 5) 806. The Preamble to Vienna Convention on Diplomatic Relations (adopted 18 April 1961, entered into force 24 April 1964) 500 UNTS 95 is emblematic in this respect. It is clearly affirmed that ‘an international convention on diplomatic intercourse, privileges and immunities would contribute to the development of friendly relations among nations, irrespective of their differing constitutional and social systems and that the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States’.

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Havana in 1928, was subsequently repeated in the 1961 Vienna Convention which set intercourse, privileges and immunities of diplomatic agents. According to general international law there is no right of legation of the state and there is even not a corresponding legal obligation against any other member of the international community.11 The agreement between States is the only foundation of the obligation of each of them to receive the permanent diplomatic mission on its territory.12 In this perspective it is clear the need to allow entry into the territory of the head and the members of mission for the exercise of their functions. Nevertheless, even when two states have agreed to establish permanent diplomatic relations between them, this does not imply that the receiving State should be considered internationally obligated to recognise and admit to its territory, as head of the mission, any person who has been appointed to that offfijice. This recognition and acceptance shall require, in fact, in the light of the practice, codifijied in the Convention, a manifestation of a separate and specifijic consent by the State in which the head of mission shall exercise its functions. The history of international relations offfers several examples in which a State refused to accept certain persons in its territory, as diplomatic envoys, regarding them as personae non gratae. And it is precisely in view of the importance of the approval of the person of the diplomatic envoy, for his admission in his offfijicial capacity in the territory of the receiving State, that the members of the international community use to ask the prior approval (agréation, agrément) of those that they wish to appoint as heads of permanent diplomatic missions. This is confijirmed under Article 4, paragraph 1, of the Vienna Convention (“the sending State must make certain that the agrément of the receiving State has been given for the person it proposes to accredit as head of the mission to that State”), which furthermore, in its second paragraph, provides that the receiving State is not obliged to give reasons to the sending State for a refusal of agrément. As for the mission’s diplomatic and non-diplomatic personnel, a prior consent is not usually required by the receiving State, as it is the case for the head of mis-

11

As noted by Biswanath Sen, A Diplomats Handbook of International Law and Practice (3rd ed, Martinus Nijhoff 1988) 9: “[I]t would appear that the right of legation is no more than the ‘competence’ of a sovereign state to accredit an envoy to another state and to receive the diplomatic agent of a foreign state. Thus no State is obliged to receive an envoy, nor can it be compelled to send its diplomatic agents to other states.”

12

VCLT Art 2.

Exceptional Duties to Admit Aliens

sion.13 But an approval, albeit tacit or implied, is equally necessary for the members of the missions to be recognized as accredited by the receiving state, in consideration of all the consequences ensuing from the recognition of that quality.14 To this purpose, Article 10 of the Vienna Convention on diplomatic relations requires the sending state to notify the Ministry for Foreign Afffairs of the receiving State, or such other ministry as may be agreed, the appointment of members of the mission, their arrival and their fijinal departure or the termination of their functions with the mission. Diplomats are acknowledged certain privileges and immunities which have long been based on rules of customary international law, then codifijied.15 These privileges and immunities are, fijirst, those that are strictly functional for the performance of offfijicial duties of the diplomat: among them it is therefore of particular importance the possibility to ensure access to the territory of the state. When such an individual has been admitted to the territory of the State to which he/ she is accredited, he/she is customary exempted from provision dealing with aliens registration, the requirements of laws dealing with the issuance of work permits or their equivalents and certain restrictions on freedom of movement within the territory of the receiving States. Pursuant to Article 26 of the Vienna Convention in fact members of the diplomatic mission have freedom of movement within the receiving State, but the latter may regulate or prohibit access to some areas for reasons of national security. Despite the inclusion of this long-established privilege in a multilateral convention, some states have not desisted, in practice, from regarding it as an option left to their discretion.

13

However, if the sending State may freely appoint the members of the staff of the mission, in the case of military, naval or air attachés, the receiving State may require their names to be submitted beforehand, for its approval. See VCLT Art 7.

14

As noted by Eileen Denza, Diplomatic Law (3rd ed, OUP 2008) 18, the practice among States Parties to the Convention at least in the early years of its operations was to rely in the sending State’s good faith. More recently, a stricter approach has been taken to classification by the sending State of its mission staff, as a consequence of abuse of diplomatic immunities and privileges.

15

On diplomatic immunities and privileges, see J Craig Barker, The Protection of Diplomatic Personnel (Ashgate 2006); J Brown, ‘Diplomatic Immunity: State Practice under the Vienna Convention on Diplomatic Relations’ (1988) 37 ICLQ 53; Stanislaw E Nahlik, ‘Development of Diplomatic Law, Selected Problems’ (1990) 222(3) Recueil des Cours 187; Ivor Roberts (ed.), Satow’s Diplomatic Practice (6th ed, OUP 2009).

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The Vienna Convention provides for immunity and privileges after the access of the diplomat,16 being also applicable to their family members:17 “Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notifijied to the Ministry for Foreign Afffairs or such other ministry as may be agreed.”18 Any objections to the appointment of a particular person as a diplomat should be expressed before the appointment,19 however, once they entered the territory, such admission is not unconditional. Any member of the diplomatic mission may be declared persona non grata at any time, without the host State being required to make an explanation for such a declaration, and thus forcing the sending State to recall the diplomat or terminate their diplomatic functions with the mission.20 Also in recent times, the international practice shows a wide use of this provision. The establishment of consular relations between states, as the establishment of permanent diplomatic relations, refers to a very ancient practice between members of the international community and is also subject to mutual consent (Article 2). This is, however, to be considered implicit, as is stated in paragraph 2 of Article 2, in the very fact that two states have allowed the establishment of diplomatic relations between them, unless stated otherwise.

16

See notably VCDR Arts 26–36.

17

VCDR Art 37.

18

VCDR Art 39(1).

19

In 2006 the issue of the scope of such duty to admit diplomats was brought before the International Court of Justice, by the Commonwealth of Dominica against Switzerland. The case involved the question of whether a diplomat accredited to an international organization may be subject to compulsory departure by the host country as a result of engaging in activities other than diplomacy. The applicant claimed that Switzerland had violated the relevant rules of international law by denying, to a diplomatic envoy of Dominica to the United Nations, the right to remain in Switzerland as a diplomat, on the basis that he was a businessman and as such would not have the right to be a diplomat. In particular, according to the applicant ‘[i]t is not legally justified to allow the Respondents to dictate to the Applicants whom they should send as an envoy to the United Nations or when such appointments would cease’. The Case was then removed from the Court’s List at the request of Dominica and no decision was issued by the Court in this respect. See Commonwealth of Dominica v Switzerland General List No 134 [2006] ICJ.

20

VCLT Arts 9(1) and 9(2).

Exceptional Duties to Admit Aliens

In this sense, for example, the establishment of a consular offfijice as well as the establishment of its headquarters, respectively, should be allowed or approved in advance by the state of residence, and the same applies for any additional changes that would be made to the seat. The admission of the head of the consular offfijice to performance of his duties, not only requires a prior notifijication of the appointment by the Government of the sending State to the receiving State where the above functions will be performed, but it is also expressly made subject to authorisation, commonly called exequatur by the receiving State (Articles 11 and 12 of the Convention). As regards the appointment of members of the consular stafff, it is in principle subjected to free choice and full discretion of the sending State. Nevertheless, the State of residence, to which all appointments as well as all arrivals and departures must be notifijied, remains free at any time, without being required to explain, to inform the sending State that a consular offfijicer is persona non grata or that any member of the consular stafff is not acceptable. In the late 60’s and 70 of the last century there has been a tendency toward the equalisation between the role of diplomats and consuls, and in many ways they enjoy similar privileges today.21 In 1963 the Vienna Convention on Consular Relations was adopted, which exempts the consuls, their family and their private stafff from the laws on the registration of aliens and residence permit requirements.22 Several domestic laws reflect expressly the provisions of the Convention and the customary law on which it was based.23 The admission to the territory of a State agents of foreign states can occur, as well as in the cases previously considered, even when within the territory of a State it should be held an international conference, promoted by the State or by one or most other states. Once a State has allowed a conference to take place in a locality of its territory, this fact alone is considered – albeit implicitly – to show the State’s com21

As it has however been pointed out by Ian Brownlie, Principles of Public International Law (6th ed, OUP 2003) consuls are in principle distinct in function and legal status from diplomatic agents and the authorities reveal differences of opinion concerning the personal inviolability of consular officials.

22

Vienna Convention on Consular Relations (adopted 24 April 1963, entered into force 19 March 1967) 596 UNTS 261 (VCCR). On the Vienna Convention on Consular Relations, see LT Lee and J Quigley, Consular Law and Practice (3rd ed, OUP 2008).

23

As for Italy, the two Vienna Conventions on Diplomatic and Consular Relations were ratified by Law no 804 of 9 August 1967, and Art 8 of the Consolidated Text on Immigration states that ‘[t]he provisions of this chapter shall not apply to members of the Sacred College and of the diplomatic and consular body’.

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mitment to admit in its territory, in their offfijicial capacity, other countries’ agents and offfijicial, as well as the so-called ‘delegation’ that the participant state considers necessary for the accomplishment of the mission of the delegates. 2.

Armed Forces

The access and stay in the territory of foreign troops are also strictly subject to the consent of the host state24 . A legal obligation to exempt members of the armed forces from immigration controls may be established in an agreement between states or in the case of an international organization, by the power of the organization, set expressly or implied in its Charter. Status of forces agreements (SOFAs) and status of mission agreements (SOMAs) are in fact bilateral or multilateral treaties that defijine the legal position of military forces and civilian personnel deployed by one or more states or by an international organisation in the territory of another state with the latter’s consent. These agreements usually regulate issues related to the entry and departure of foreign personnel, taxation, the settlement of claims, and the modalities for the exercise of civil and criminal jurisdiction over members of the visiting force or mission. This is for instance the case of the NATO Status of Forces Agreement, which provides that subject to compliance with the formalities established by the receiving State relating to entry and departure of a force or the members thereof, members of the armed forces should be exempt from passport and visa regulations and immigration inspection on entering or leaving the territory of a receiving State. They shall also be exempt from the regulations of the receiving State on the registration and control of aliens, but shall not be considered as acquiring any right to permanent residence or domicile in the territories of the receiving State.25 Despite the increasingly widespread use of SOFAs and SOMAs during the 20th century, no uniform legal regime in this fijield comparable to the law of diplomatic relations has emerged and the nature, purpose and legal nature of privileges and im24

The extent of the consent given to access of foreign armed troops may, however, be the subject of controversy. See Case concerning Armed Activities on the Territory of the Congo [2005] ICJ Rep 168 [92]-[105].

25

Agreement between the Parties to the North Atlantic Treaty regarding the Status of their Forces (19 June 1951) Art 3. This agreement supplements the Treaty establishing the North Atlantic Treaty Organisation, along with the Agreement on the Status of NATO National Representatives and International Staff, and the Protocol on the Status of the International Military Headquarters.

Exceptional Duties to Admit Aliens

munities of armed forces’ members remains controversial.26 Even though no single legal regime governing the status of visiting forces and missions has developed in international law, several distinct regimes have nevertheless been identifijied.27 Ad hoc special missions. The use of diplomacy and ad hoc special missions gradually came to assume importance. These can be used even in the absence of diplomatic relations, but their status again depends, fijirst, upon the consent of the host State.28 This principle, which was in fact already acquired in the practice has been expressly incorporated in the Convention on Special Missions adopted by the General Assembly of the United Nations on 8 December 1969,29 which is however in force only among a limited number of countries.30 Within this framework, a special mission is defijined as a temporary mission, representing the State, which is sent by one State to another State with the consent of the latter for the purpose of dealing with it on specifijic questions or of performing in relation to it a specifijic task (Article 1). The profijiles concerning acceptance, admission and immunities pertaining to the representative or representatives of the sending state are treated in a manner not dissimilar to that of permanent diplomatic missions.

26

Plender (n 3) 177. As to the relevance of Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) Art 98 to agreements governing the legal status of visiting forces in a receiving state, see Dieter Fleck, ‘Are Foreign Military Personnel Exempt from International Criminal Jurisdiction under Status of Forces Agreements?’ (2003) 1 JICJ 651 ff.

27

For a detailed analysis of SOFAs and SOMAs agreements, their structure and features, see A Sari, ‘Status of Forces and Status of Mission Agreements under the ESDP: The EU’s Evolving Practice (2008) 19(1) EJIL 67.

28

Brownlie (n 21) 357: “Beyond the sphere of permanent relations by means of diplomatic missions or consular posts, states make frequent use of ad hoc diplomacy or special missions. These vary considerably in functions (...). These occasional missions have no special status in customary law but it should be remembered that, since they are agents of states and are received by the consent of the host state, they benefit from the ordinary principles based upon sovereign immunity and the express or implied conditions of the invitation or license received by the sending state.”

29

Convention on Special Missions (adopted 8 December 1969, entered into force 21 June 1985) 1400 UNTS 231 (CSM).

30

As of September 2011 only thirty-eight countries were part to the Convention.

209

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3.

International Civil Servants

Even the possibility of establishing the headquarters of an international organisation in the territory of a State shall require the prior consent of the host State. As mentioned above, the hospitality provided by the State on its territory to the headquarters of an international organisation, or at a conference or meetings that are held within its framework, however, lead to a number of consequences in the admission and residence in the territory of the representatives of foreign states in the organization, of the components (the so-called ‘International civil servants’) of the secretariats and offfijices intended to ensure coordination of activities and continuity of the functioning of the organisation, as well as to the status of the organisation as such. A specifijic convention on the Representation of States in their Relations with International Organizations of a Universal Character was adopted in Vienna in 1975 but did not enter into force.31 In the absence of a general convention, the position of offfijicials and delegates of member states vis-à-vis the state hosting the intergovernmental organisation is usually regulated by the so-called ‘headquarters agreements’. The Agreement between the United Nations and the United States of America regarding the Headquarters of the United Nations of 26 June 1947 clearly poses – under Article IV – the obligation of the United States to ensure access to and residence in its territory of all those who will have to carry out their activity within or in relation to the organisation’s operation. In any event ascertaining the immunities belonging to international civil servants requires the prior establishment of the degree of immunity of the international organisation, which is in turn closely related to the attribution of international legal personality to them. It does not cover, in fact, a width identical to that acknowledged to States, being recognized within the strict limits to the exercise of their function. The same can be said, a fortiori, for offfijicials. The issue is usually expressly resolved by including specifijic provisions in the charter, or in the agreements which the organization concludes with Member States or third countries. This is for instance the case of the United Nations. The Charter expressly regulate the issue by providing that the Organisation shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfijilment of its purposes (Article 105(1)). Representatives of the Members of the United 31

Pursuant to Art 89, the Convention should have entered into force on the thirtieth day following the date of deposit of the thirty-fifth instrument of ratification or accession. However, at the closing date for signature only thirty-four states had ratified.

Exceptional Duties to Admit Aliens

Nations and offfijicials of the Organisation shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organisation (Article 105(2)). The content of these privileges and immunities has then been developed by the General Convention on Privileges and Immunities of the United Nations adopted by the General Assembly in 1946 and supplemented by agreements between the UN and other agencies with a State in which they are located. III.

Acquired Rights

Pursuant to Article 12 International Covenant on Civil and Political Rights ‘no one shall be arbitrarily deprived of the right to enter his own country’. As the Human Rights Committee has stated in its General Comment No. 27 (‘Freedom of movement’), the right of a person to enter his or her own country recognizes the special relationship of a person to that country and in no case may a person be arbitrarily deprived of the right to enter his or her “own” country. There would be ‘few, if any, circumstances in which deprivation of the right to enter one’s own country could be reasonable’.32 It can therefore be asked whether stable and regular stay in a foreign country may imply an obligation to (re)admit and limit the power of expulsion. In fact, it has been argued that re-admission or non-expulsion obligations may apply to include aliens who have been lawfully resident for a lengthy period and not only citizens. These arguments have been afffijirmed on the basis of a doctrine of ‘acquired rights’ or ‘legitimate expectations’.33 Since the wording of Article 12, paragraph 4, does not distinguish between nationals and aliens (‘no one’), should this provision be intended as limited to citizens? To this purpose, the meaning of the phrase ‘his own country’ assumes the greatest importance. In the Human Rights Committee’s view, the scope of ‘his own country’ is broader than the concept ‘country of his nationality’. This expression would not be limited to nationality in a formal sense, but would embrace ‘at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien’. The language of Article 12, paragraph 4, moreover, would permit a broader interpretation that might comprise other catego32

UNHRC, ‘General Comment 27: Freedom of Movement (Art.12)’ (1999) UN Doc CCPR/C/21/ Rev.1/Add.9 paras 19–21.

33

Plender (n 3) 161; Goodwin-Gil (n 5) 258; Carmen Tiburcio, The Human Rights of Aliens under International and Comparative Law (Martinus Nijhoff 2001) 218.

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ries of long-term residents, including but not limited to stateless persons arbitrarily deprived of the right to acquire the nationality of the country of such residence.34 The broad interpretation given to this provision by the Human Rights Committee in its practice has been highlighted by the U.N. Special Rapporteur on the rights of non-citizens.35 In particular, requiring lawfully permanent residents of a State to obtain return visas to re-enter that State has been considered as potentially in breach of Article 12 (4).36 The European Commission against Racism and Intolerance within the Council of Europe has urged states to ensure that the residence permits of non-citizens who are long-term residents are withdrawn only under exceptional and clearly defijined circumstances, and that adequate recourse to appeal against such decisions is made available.37 Interesting features in relation to the recognition of ‘acquired rights’ in favour of permanent or long-term resident aliens can be found in the framework of the European Union. Without considering the position of EU citizens, whose free movement was one of the founding pillars of the European Economic Community and which has constantly developed, the granting of rights to third countries nationals, particularly with regard to residence in the Member States, has been afffijirmed in the various ‘programs’ adopted after the entry into force of the Treaty of Amsterdam, and then, following the ‘communitarisation’ of immigration and asylum policy.38 The Tampere Programme identifijied four elements to enact immigration and asylum policies. The EU acknowledged the need to ensure the ‘fair treatment’ of those who are legally resident in a Member State in order to foster a ‘more vigorous integration’. The Tampere European Council thus recommended the approximation of the legal status of third-country nationals to that of Member States’ nationals. In particular, a set of uniform rights which are as near as possible to those enjoyed by EU citizens, including the right to reside, should have been granted to a person, who has stayed

34

General Comment 27 (n 32) para 21.

35

David Weissbrodt, The Rights of Non-citizens (OHCHR 2006) 17.

36

UNHRC, ‘Concluding Observations on the Fourth Periodic Report’ UN Doc A/57/40 (Vol.I), para 81(12).

37

European Commission against Racism and Intolerance, Second Report on Switzerland (CRI

38

The three programmes of Tampere (1999), The Hague (2004) Stockholm (2009), adopted

2000) 6, paras 35–39. by the European Council (Tampere, 15–16 October 1999; Brussels, 4–5 November 2004; Brussels, 10–11 December 2009) have indicated the initiatives and actions to be taken in the Area of Freedom, Security and Justice, assuming each a time period of five years.

Exceptional Duties to Admit Aliens

legally in a Member State for a period of time to be determined and who holds a longterm residence permit (paragraph 21 of Council conclusions). A specifijic EU directive was then adopted to regulate the status of third country nationals who are long-term residents.39 Holders of the status are granted equal treatment with nationals in several areas, including free access to the entire territory of the Member State concerned, within the limits provided for by the National legislation for reasons of security (Article 11(1)(h)), and receive a reinforced protection against expulsion, to be applied based on the criteria determined by the decisions of the European Court of Human Rights (whereas No. 6). Article 12 provides for specifijic protection against expulsion: Member States may take a decision to expel a long-term resident solely where he/she constitutes an actual and sufffijiciently serious threat to public policy or public security. The duration of residence in their territory as well as links with the country of residence or the absence of links with the country of origin must be taken into account before a decision of expulsion can be issued. Moreover, removal decisions adopted by a second member states against foreigners holding a long-term resident status in another member states cannot be accompanied by a permanent residence ban, unless removal is adopted on ground of public policy or public security (Article 22(4)) Long-term resident status may be withdrawn in the event of absence from the territory of the EU for a period of 12 consecutive months (Article 9(1)(c)), but Member States who have granted the status shall provide for a facilitated procedure for the re-acquisition of long-term resident status (Article 9(5)). More recently, the Stockholm Programme, entitled ‘An open and secure Europe serving and protecting the citizens’ has reafffijirmed (paragraph 6.1.4), within the ‘proactive policies for migrants and their rights’, the need to ensure fair treatment of third country nationals legally residing and rights and obligations comparable to those of citizens. 40 As part of a consolidation process of all legislation relating to immigration through an immigration code, the action Plan for the implementation of the Stockholm Programme, has indicated the goal of achieving a uniform level of rights and requirements for legal immigrants comparable to that of EU citizens.41

39

Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents [2004] OJ L16, 44.

40

European Council, ‘The Stockholm Programme – an open and secure Europe serving and protecting citizens’ [2010] OJ C115, 1 ff.

41

Commission, Delivering an Area of Freedom, Security and Justice for Europe’s Citizens: Action Plan Implementing the Stockholm Programme (Communication) COM (2010) 171 final, 7.

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At least in the European Union, therefore, the position of third-country nationals who are long-term resident is diffferentiated from that of other ‘ordinary’ nonEU nationals and Member States incur in more stringent obligations as to the duty of (re)admission, withdrawal of the status and limits to the power of expulsion in their regards. 42 Despite the difffijiculties and limitations in the implementation of the Directive, which reflect a certain reluctance of States to ensure a more favourable treatment to this category of aliens, 43 the rules introduced as well as the above mentioned authoritative positions set at the international level lead at least to say that a process of evolution towards the recognition of acquired rights in favour of settled foreigners is in progress. IV.

The Emergence of Duties Arising from Human Rights Law

In a context where there is no international convention shared by the generality of the international Community on the rights of migrants, and where the treatment of aliens was a matter traditionally governed by general international law or through specifijic bilateral agreements, the progressive development of international human rights law has afffected the shape and the scope of state power. In particular, in an analysis which concerns the exceptional duty to admit aliens, it seems appropriate to question whether the above traditional view of international law should be, at least partly, overcome. That is, in addition to those very limited cases of exceptional duty to admit that, however, appear functional to the same exercise of state sovereignty, it can be assumed that the international human rights law has broadened the scope of these duties? Although the majority of the doctrine does not consider that a general rule entailing the right of entry to foreigners has emerged, as a result of the growing influence of the needs and considerations relating to the protection of human rights, the long-term formation of a customary rule applicable at least to some categories of foreigners has not been excluded.44

42

For a detailed analysis of the status of long-term residents in the EU, see D Acosta Arcarazo, The Long-Term Residence Status as a Subsidiary Form of EU Citizenship (Brill 2010).

43

Commission, ‘Report from the Commission to the European Parliament and the Council on the application of Directive 2003/109/EC concerning the status of third-country nationals who are long-term residents’ COM (2011) 585 final.

44

Jean-François Flauss, ‘Entre souveraineté nationale et droits de l’homme’ in Jean-Yves Carlier (ed.), L’Etranger face au droit: XXes Jounées d’etudes juridiques Jean Dabin (Bruylant 2010) 45.

Exceptional Duties to Admit Aliens

Attention should be placed in particular on the principle of non-refoulement, which is debated whether or not it has acquired the nature of a customary rule, and on the provisions contained in international conventions on human rights that protect family unit and, with an increasing extent, the best interest of the child. In relation to the fijirst profijile, which in recent years has assumed a particular importance especially in relation to highly controversial push-back operations implemented for the purposes of immigration control, it may only be recalled here that Article 33 of the Geneva Convention relating to the Status of Refugees sets a prohibition to expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. This principle is reafffijirmed in a number of instruments, in particular under international human rights law. Thus, the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment prohibits to expel, return or extradite any person to countries where they would be exposed to similar risks (Article 3). The European Convention for the Protection of Human Rights and Fundamental Freedoms enshrines the right not to be subjected to inhuman or degrading treatments: the rule (Article 3) has been interpreted as a principle that prohibits the extradition, expulsion or deportation, refoulement to states in which the person would run the risk of being subjected to such treatment. The prohibition applies even if the refusal or removal takes place to an intermediate country, that could in turn return the person to a territory where he/she would be exposed to such treatment. 45 As already the European Commission of Human Rights afffijirmed, although neither the right of asylum and the right of an alien not to be expelled is guaranteed by the Convention, the Contracting Parties agreed to restrict the free exercise of their power under general international law, to the extent and within the limits of the obligations which they assumed under the European Convention on Human Rights. 46 Subsequent, but established ECHR case-law has defijined Article 3 as a rule formulated in absolute terms which enshrines one of the fundamental values of democratic societies and does not permit any exception nor derogation. 47 Limits to state’s dis45

For example, see Soering v United Kingdom App no 14038/88 (ECtHR, 7 July 1989) [87] and [90].

46

East African Asians v United Kingdom App no 4626/70 (Commission Decision, 6 March 1978).

47

Saadi v Italy App no 37201/06 (ECtHR, 28 February 2008) [127]. Along the same lines, the ICJ has recently stated that ‘the prohibition of inhuman and degrading treatment is among

215

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cretion have thus been formulated using the technique of protection par ricochet, which allows the European Court to extend the protection of certain rights under the Convention to rights not expressly protected by it. The European Court has thus made into the scope of Article 3 the right to conditions of detention conform to human dignity, of Articles 3 and 8 the alien’s right not be expelled from the territory. 48 Two categories of foreigners can thus be identifijied in respect of which it is questionable whether they have the right to invoke the admission, at least temporarily: foreigners applying for refugee status under the Geneva Convention and, in broader terms, those who are exposed to danger for their lives and safety in the country of return; and those who claim their right to family life. The admission of refugees and the principle of non-refoulement being the object of Professor Goodwin-Gil’s contribution in this volume, my reflection will be rather focused on the second profijile. In this respect, the decisions taken by supervising bodies in order to verify the consistency of family reunifijication procedures, in respect of individual applications for admission, with the provisions laid down in the conventions that protect fundamental rights provide interesting clues as to the possible evolution of this topic. Noteworthy practice in this perspective is that of the European Court of Human Rights which, in its case-law based on Article 8 ECHR, has progressively developed the principle applicable to assess the compatibility with the Convention of national decisions relating to applications for admission as well to expulsion orders which call into question the right to family unit. Also in this respect, reference can be made to relevant General Comments adopted by the Human Rights Committee and to its practice concerning Articles 17 and 23 ICCPR. No right of an alien to enter or reside in a particular country is as such guaranteed by the Convention. The ECHR has constantly and clearly repeated it. But the question may arise whether a refusal of admission does not infringe some other right which is guaranteed. Thus it is appropriate to examine complaints of expulsion or refusal of admission in relation to Article 8 where such a measure might disrupt the the rules of general international law which are binding on States in all circumstances, even apart from any treaty commitments’, see Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) General List 103 [2010] ICJ [87]. 48

See recently Al-Saadoon and Mufdhi v United Kingdom App no 61498/08 (ECtHR, 2 March 2010); M.S.S. v Belgium and Greece App no 30696/09 (ECtHR, 21 January 2011); M.C. c. Suisse App no 41199/06 (ECtHR, 26 April 2011); H.R. v France App no 64780/09 (ECtHR, 22 September 2011). F Juliene-Laferrière, ‘L’application par ricochet de l’Article 3 CEDH. L’exemple des mesures de l’éloignement des étrangers’ in CA Chassin, La Portée de l’Article 3 de la Convention européenne des droits de l’homme (Bruylant 2006) 141 ff.

Exceptional Duties to Admit Aliens

family unit. 49 In the last decade, the Court has developed a new approach which has extended the fijield of application of Article 8 ECHR to the conditions for leave to remain.50 Along the same lines, as mentioned above, the Committee on Human Rights, in its General Comment No. 15 (Position of Aliens under the Covenant), has afffijirmed that ‘in certain circumstances an alien may enjoy the protection of the Covenant even in relation to entry or residence, for example, when .... respect for family life arises’.51 That the right to protection of the family also includes entry for reasons of family reunifijication has been afffijirmed by the same Human Rights Committee in the decision of inadmissibility rendered in the case Ngamba v. France, where it stated that ‘Article 23 of the Covenant guarantees the protection of family life including the interest in family reunifijication’.52 In this regard, it should also be highlighted that the notion of family adopted by the Committee is formulated in broad terms to include all those comprising the family as understood in the society of the State party concerned. Pursuant to Article 17(1) ICCPR, arbitrary or unlawful interference with family life are not permitted under the Covenant. As the Human Rights Committee has stated, ‘arbitrariness within the meaning of Article 17 is not confijined to procedural arbitrariness, but extends to the reasonableness of the interference with the person’s rights under Article 17 and its compatibility with the purposes, aims and objectives of the Covenant’53 This evaluation should take place according to an assessment of proportionality with respect to the measure adopted by the State, implicit in the notion of ‘arbitrary interference’ used in Article 17 of the Covenant, which is intended to ensure that ‘even an interference provided for by the law should be in accordance with provisions, aims and objectives of the Covenant and should be, in any 49

East African Asians (n 46); Moustaquim v Belgium App no 12313/86 (ECtHR, 18 February 1991) para 43; Beldjoudi v France App no 12083/86 (ECtHR, 26 February 1992) [74]; Mubilanzila Mayeka and others v Belgium App no 13178/03 (ECtHR, 12 October 2006) [81]; Liu and others v Russia App no 42086/05 (ECtHR, 6 December 2007) [49].

50

D Thym, ‘Respect for Private and Family Life under Article 8 ECHR in Immigration Cases: A Human Right to Regularize Illegal Stay?’ (2008) 57 ICLQ 87–112; N Rogers, ‘Immigration and the European Convention on Human Rights: Are New Principles Emerging?’ (2003) EHRLR 58.

51

UNHRC, ‘General Comment 15: The Right to Water’ (2003) UN Doc E/C.12/2002/11, para 5.

52

Ngambi c Francia Comm no 1179/2003 (UNHRC, 9 July 2004).

53

Canepa v Canada, Comm no 558/1993 (UNHRC, 13 October 1994).

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event, reasonable in the particular circumstances’.54 What emerges from the Human Rights Committee’s practice regarding family unit is an assessment of the conflicting interests of the community and the immigrant. Similar criteria can also be found in the reasonableness test applied by the European Court of Human Rights, which is based on the balance between the interests of the state and the foreigner. The right to family life, pursuant to Article 8 ECHR, is not absolute, but it can be subjected to the interference of public authorities, provided that this is required by law, necessary in a democratic society and proportionate to the aim achieved, as stated in paragraph 2.55 Already in the ruling Abdulaziz and others v. United Kingdom, in relation to the efffective family life, the Court identifijied the existence of an obligation for the state of positive content: “[A]lthough the essential object of Article 8 (...) is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in an efffective “respect” for family life.”56 The Court specifijied, however, that the notion of ‘respect’ is not clear-cut: the notion’s requirements varies considerably from case to case. Accordingly, this is an area in which states enjoy a wide margin of appreciation in determining the steps to be 54

UNHRC, ‘General Comment 16: Article 17 (Right to Privacy)’ (1988) UN Doc CCPR/C/21/ Rev.1 para 4. In Winata v Australia Comm no 930/2000 (UNHRC, 26 July 2001), the UNHRC affirmed: “[I]t is certainly unobjectionable under the Covenant that a State party may require, under its laws, the departure of persons who remain in its territory beyond limited duration permits. Nor is the fact that a child is born, or that by operation of law such a child receives citizenship either at birth or at a later time, sufficient of itself to make a proposed deportation of one or both parents arbitrary. Accordingly, there is significant scope for States parties to enforce their immigration policy and to require departure of unlawfully present persons. That discretion is, however, not unlimited and may come to be exercised arbitrarily in certain circumstances (...) it is incumbent on the State party to demonstrate additional factors justifying the removal of both parents that go beyond a simple enforcement of its immigration law in order to avoid a characterisation of arbitrariness.”(para 7.3) See R Burchill, ‘The Right to Live Wherever you Want? The Right to Family Life Following the UN Human Rights Committe’s in Winata’ in (2003) 21 NQHR 225.

55

In the cases Boultif v Switzerland App no 54273/00 (ECtHR, 2 November 2001) and Üner v The Netherlands App no 46410/99 (ECtHR, 18 October 2006) the Court has identified the criteria that should be applied in order to assess the lawfulness of the expulsion in case where ECHR Art 8 is invoked.

56

Abdulaziz, Cabales and Balkandali v The United Kingdom App no 9214/80; 9473/81; 9474/81 (ECtHR, 28 May 1985) [67]–[68].

Exceptional Duties to Admit Aliens

taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals, also taking into account that such a situation not only involves family life but also immigration control. It emerges clearly the need to balance potentially conflicting values. The scope of this positive obligation incumbent on the state should not be distorted or emphasized. The Court has excluded, in fact, that Article 8 requires the State to respect the choice by the spouses of the country of residence and thus to admit the foreigner. The possibility of reconstructing the family unit elsewhere takes on great importance and the obligation to allow the reunifijication arises when this option is not applicable. This view is clearly afffijirmed in the case Gül v. Switzerland, in which the Court further indicates that the boundaries between positive obligations and negative obligations do not lend themselves to precise defijinition, but on the contrary the applicable principles are similar: “[I]n both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation.” 57 In successive judgments the Court has constantly reiterated that ‘as a matter of well-established international law, a State has the right to control the entry of non-nationals into its territory’, but the statement was mitigated by adding that such right must be exercised within the limits defijined by international treaties. This position still indicates that sovereignty is the rule, and any subjective right that goes against that principle is the exception.58 Compared to this reconstruction, in the subsequent case Ahmut v. The Netherlands, after referring to the criteria set out in its earlier case-law, the Court partially reversed its perspective. Having highlighted that the case hinged on the question whether the Netherlands authorities were under a duty to allow the applicant to reside with his father in the Netherlands, for the purpose of maintaining and developing family life in its territory, the Court viewed the case as one involving an allegation of failure on the part of the respondent State to comply with a positive

57

Gül v Switzerland App no 23218/94 (ECtHR, 19 February 1996) [38]. The Court furthermore points out that ‘where immigration is concerned, Article 8 cannot be considered to impose on a State a general obligation to respect the choice by married couples of the country of their matrimonial residence and to authorise family reunion in its territory’.

58

Thomas Spijkerboer, ‘Structural Instability: Strasbourg Case Law on Children’s Family Reunion’ in (2009) 11 EJML 271, 284.

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obligation rather than as an interference with the applicant’s right to respect for family life.59 But it is especially over the last decade, in a series of cases involving family unit with children, that the potential violation of Article 8 ECHR has been assessed with a greater emphasis on family life, also in consideration of the best interest of the child. Although the difffijiculty to identify a consistent line of case-law on children family’s reunion has been pointed out,60 it can be afffijirmed that that these case show a partial change of approach. In light of the particular circumstances of the cases which made them diffferent from the above mentioned situations (existence of family ties in the alien’s country of origin before their departure), the Court has stated that the decision cannot be referred only to immigration issues, thus considering the family aspects involved to a greater extent.61 It is particularly the best interest of the child that has gradually shifted the focus by altering in some ways the balance followed by the Court.62 In the case Rodrigues Da Silva v. The Netherlands, which concerned a Brazilian national who had never been able to regularise her position in the territory of the defendant State, the Court afffijirmed that the impugned decision did not constitute interference with the applicants’ exercise of the right to respect for their family life on account of the withdrawal of a residence status entitling the applicant to remain in the Netherlands. Rather, it considered that the question to be examined in the case was whether the Netherlands authorities were under a duty to allow the fijirst applicant to reside in the Netherlands, thus enabling the applicants to maintain and develop family life in their territory. Relying on its earlier ruling in the case Ahmut v. The Netherlands, the Court agreed with the parties’ submission that the case was to be seen as one involving an allegation of failure on the part of the respondent State to comply with a positive obligation, also in the light of the principle of the best interest of the child. Thus having regard to the particular circumstances of the case, and indeed to the best interest of the child, the Court concluded that a fair balance had not been struck between the diffferent interests at stake and that, accordingly, there has been a viola59

Ahmut v the Netherlands, App no 21702/93 (ECtHR, 28 November 1996) [63].

60

Spijkerboer (n 58). In reviewing the relevant ECHHR case-law the author has underlined its inconsistency, highlighting that the Court is confronted with opposing tensions

61

Sen v the Netherlands App no 31465/96 (ECtHR, 21 December 2001); Tuquabo-Tekle and oth-

62

Rodrigues Da Silva and Hoogkamer v The Netherlands App no 50435/99 (ECtHR, 31 January

ers v. the Netherlands App no 60665/00 (ECtHR, 1 March 2006) 2006); Mubilanzila Mayeka and Kaniki Mitunga v Belgium App no 13178/03 (ECtHR, 12 October 2006).

Exceptional Duties to Admit Aliens

tion of Article 8 of the Convention. This orientation was, however, later contradicted by the ruling issued in the case of Darren Omoregie and others v. Norway, in which the Court, in spite of the similarities with Rodrigues Da Silva, considered there were no particular obstacles to the transfer of the applicant’s, whose position had never been regular, Norwegian wife and their baby in Nigeria.63 But it is worth mentioning a very recent case which concerned the expulsion, accompanied by a two-year re-entry ban against an alien who after having fijirst been deported with a two-year-prohibition on re-entry due to a criminal conviction, defijied that prohibition by re-entering the country with the use of a false identity and travel document.64 She then married a national and obtained a residence permit having informed the immigration authorities that she had not previously resided in the country and had no criminal record. On the basis of her misleading information, she was granted a work permit in and then a settlement permit. Thus, at no time had her residence in the country been lawful. The Court has afffijirmed that the public interest in favour of ordering the applicant’s expulsion weighed heavily in the balance when assessing the issue of proportionality under Article 8 of the Convention, however having regard to the concrete and exceptional circumstances of the case, and in particular to the minors’ position (the children’s long lasting and close bonds to their mother, the decision in the custody proceedings, the disruption and stress that the children had already experienced and the long period that elapsed before the immigration authorities took their decision to order the applicant’s expulsion with a re-entry ban) the Court was not convinced that sufffijicient weight was attached to the best interests of the children for the purposes of Article 8 of the Convention (express reference is made by the Court also to Article 3 of the UN Convention on the Rights of the Child). The Court concluded that the applicant’s expulsion from Norway with a two-year re-entry ban would have entailed a violation of Article 8 of the Convention. So if in the light of the traditional balance of values, the expulsion order was deemed not to be contrary to Article 8, it contravened it if the attention was focused on the child’s best interest. The potential efffects of this statement have been highlighted in two Judges’ dissenting opinion, in which they have expressed their ‘concern that this case will send the wrong signal, namely that persons who are illegally in a country can somehow contrive to have their residence ‘“legitimised” through the expedient of marriage and of having children’.65 In a reversed perspective, focused instead on the 63

Darren Omoregie and others v Norway App no 265/07 (ECtHR, 31 July 2008).

64

Nunez v Norway App no 55597/09 (ECtHR, 28 June 2011).

65

Joint dissenting opinion of Judges Mijović and De Gaetano in Nunez v Norway (n 64).

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admission that the expulsion, this approach could strengthen the extent of state positive obligation to admit aliens, in order to enforce the right to family unit, when children are involved. V.

Conclusion

Apart from the exceptional state’s duty to admit alien, which is linked to a traditional view of international law, it seems possible to indentify a process of evolution in this respect. This brief overview, while not exhaustive, has attempted to outline a slow development, in search of a new balance in line with the change of sensitivity of the international community. It highlights a struggle between conflicting values: on one hand the protection of sovereignty, on the other hand the protection of fundamental rights. While inherent in the sovereignty of the State, the power to admit aliens must be exercised within the limits imposed by international law and in accordance with basic principles, such as the principle of transparency and non-discrimination. Although subject to numerous requirements to be assessed after strict scrutiny of the individual situation of the case, and recognized as exceptional, an obligation to admit aliens appears to be foreseeable as a result of the emergence of the human rights paradigm, especially when the unit of the family, the principle of non-refoulement, the prohibition of torture and degrading treatment are afffected.

11

Free Movement of Persons and Regional International Organisations Sara Iglesias Sánchez*

I.

Introduction

Together with human rights, the proliferation of regional processes of integration and cooperation is one of the most important developments that have lead to the limitation of the absolute freedom of States to regulate migration.1 In the framework of regional processes of integration and international cooperation, States have broadly engaged in legal and political compromises aimed at achieving diffferent levels of free movement within the confijines of the territorial basis of regional international organisations. Despite the difffijiculties in the achievement of free movement, regional international organisations rarely renounce to the ambition of creating particular regimes of mobility for the nationals of the contracting parties. Going further than trade agreements, and notwithstanding their economic integration content, regional organisations provide for an institutional structure to diffferent initiatives and processes that aim at achieving variable degrees of intra-regional freedom. In this framework, they are giving place to projected ‘islands of free movement’ in a world where globalisation is still asymmetrical when it comes to the movement of persons and where complete human mobility is strongly hindered by a widespread and entrenched restrictive approach to migration by most developed States. In this global scenario it has been recognized that States that belong to the same region

*

Sara Iglesias Sánchez is Lecturer in International Law, University of Cádiz (PhD University

1

Richard Plender, International Migration Law (2nd edn, Nijhoff 1988) 2.

Complutense of Madrid, LLM Yale Law School).

Sir Richard Plender (ed.), Issues in International Migration Law Copyright 2015 Koninklijke Brill NV. Printed in The Netherlands. ISBN 978-90-04-20851-3 pp. 223-260

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demonstrate more readiness to enter into binding arrangements among them, since they share problems, history and objectives.2 This Chapter will offfer an overview of some of the most advanced experiences towards free movement in regional international organisations. Regional consultation processes on migration will be only incidentally addressed inasmuch as they take place within regional organisations. Having in mind the extreme complexity and the breadth of the topic, only basic features and structural elements will be presented with the objective of drawing some conclusions from their similarities, diffferences and mutual interaction, coordination and eventual convergence. The focus will be on legal measures and strategies adopted by regional organisations that promote the movement of persons among their member States, encompassing different policies that foster physical mobility but also enable residency and access to economic activities. Even thought the achievement of free movement seems to be a shared aspiration to most regional organisations, the level of implementation and the methods for its achievement are very variable. Some studies have established a classifijication based on the methodologies and approaches followed by the diffferent organisations.3 Even if taking into account this classifijication, this study will be structured on the basis of mere geographic contiguity. As Trachtman observes, human mobility in its most perfect and democratic manifestation – free movement of labour – is somehow present in all the regions of the world but for Asia and North America. 4 Drawing from this reality and relying on geographical contiguity as the basis for structuring the relationship between the diffferent experiences, we will examine the developments towards free movement in regional international organisations in Europe, Africa, South America and the Caribbean. Diffferent approaches appear simultaneously in the diffferent organisations present in the same regions. To look at all of them on the basis of their continental basis can help us to draw the map of global mobility that seems to be emerging (at least on the paper). Particularly, in 2

TA Aleinikoff, ‘International Legal Norms on Migration: Substance without Architecture’ in R Cholewinski, R Perruchoud, and E MacDonald (eds), International Migration Law: Developing Paradigms and Key Challenges (TMC Asser Press 2007) 472.

3

The IOM has differentiated between three different approaches: right to full mobility; the model of GATS Mode 4 and the approach of facilitated entry and stay with no market access. See International Organisation for Migration, Free Movement of Persons in Regional Integration Processes (IOM 2010).

4

JP Trachtman, The International Law of Economic Migration: toward the Fourth Freedom (WE Upjohn Institute 2009) 12.

Free Movement of Persons and Regional International Organisations

some cases, geographical proximity also determines the fate and features of the processes of integration, since it fosters interaction in various ways, mostly when overlapping memberships exist. The world-map of mobility is complemented by bilateral agreements (such as ANZCERTA, the Australia-New Zealand Closer Economic Relations) and other limited experiences developed on the basis of free trade agreements (NAFTA, Canada-Chile Free Trade Agreement, and Japan-Singapore Free Trade Agreement), which will not be addressed here. II.

European Free Movement: The EU as the Standard Successful Experience

Building up on the experience of the Benelux, the European Union represents the most successful experiment of free movement of persons. This successful experience has spread its fruits to neighbouring states under the European Economic Area Agreement and the bilateral EU-Switzerland Agreement, fostering also the development of free movement provisions within another regional organisation: the European Free Trade Association. But the shine of the European Union in this respect cannot overshadow the existence of other initiatives and developments with regard to sub-regional experiences, such as the Benelux or the Nordic Council, or wider political projects, such as the Council of Europe. 1.

The European Union5

The free movement of workers, the freedom of establishment and the freedom to provide services were already at the heart of the common market designed by the foundational Treaties.6 The notion of the common market evolved in the Treaty of Maastricht into the concept of “single market” as an area in which the free movement of goods, services, capital and persons is ensured. In subsequent reforms of the Treaty, the nature of free movement rights has been further transformed as the result of a structural mutation of the internal market into an Area of freedom, security and justice. As part of this development, the Schengen acquis is of paramount 5

Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Romania, Slovakia, Slovenia, Spain, Sweden, and the UK.

6

Treaty Establishing the European Economic Community, Rome (1957) UNTS 294. In its current version, Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union [2012] OJ C326.

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importance. Far from being a mere cosmetic complement to the pre-existing free movement rights that already entailed the right to cross the borders among Member States, the abolition of controls at the internal borders embodies the emergence of a federal area of free movement, even though afffected by the regime of ‘variable geometry’.7 Today, the characterisation of the fundamental freedoms along the lines of their economic content remains valid.8 All these liberties are enounced similarly, and are composed by market access rights9 (that include physical mobility in order to make possible the exercise of the economic freedom), a non-discrimination specifijic element 10 (that applies preferentially with regard to the general prohibition

7

Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders and implementing Convention [2000] OJ L239/19. United Kingdom and Ireland remain outside the Schengen Area.

8

In this sense, see Dimitry Kochenov, ‘Ius Tractum of Many Faces: European Citizenship and the Difficult Relationship between Status and Rights’ (2009) 15 CJEL 169, 194. Indeed, Title IV of Part III of the Treaty on the Functioning of the European Union still distinguishes in different chapters the different economic activities through which free movement can be developed. Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/77 also provides for different regimes according with the economic status of individuals as employed or selfemployed, students or other persons with sufficient economic resources.

9

Contained in Art 45(3) of the TFEU for workers, in Art 49 TFEU with regard to the right of establishment and in Art 56 TFEU for service providers.

10

Art 45(2) TFEU: “Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.” According to Art 49 TFEU, “Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 54, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the Chapter relating to capital.” In the same way, Art 57 TFEU states that ‘[w]ithout prejudice to the provisions of the Chapter relating to the right of establishment, the person providing a service may, in order to do so, temporarily pursue his activity in the Member State where the service is provided, under the

Free Movement of Persons and Regional International Organisations

of discrimination),11 and specifijic mandates for the EU legislator to adopt measures aimed at the removal of obstacles and at the creation of more favourable conditions for movement.12 This legislative empowerment has resulted in a considerable amount of legislation removing obstacles and harmonising material fijields that are related with the rights of free movement. This prevalent economic and functional foundation has been progressively overcome through a process of generalisation of the personal scope of free movement rights. Movement for non-economic actors has been thus assured through secondary legislation to pensioners,13 students,14 and other persons with sufffijicient economic resources.15 Generalisation of the personal scope has culminated in the transformation of the understanding of free movement from an economic freedom into a fundamental right.16 Since 1992, free movement of persons has also become an intrinsic element to the concept of citizenship of the Union.17 In order to unify and bring coherence in the previously parcelled legal regulation of free movement, a codifijication Directive has further been adopted.18

same conditions as are imposed by that State on its own nationals’. The prohibitions of discrimination have been subsequently worked out in secondary legislation. 11

The general prohibition of discrimination on nationality grounds is contained in Art 18 TFEU: “Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.”

12

See Arts 46 and 48 TFEU with regard to workers; Arts 50, 52 and 53 TFEU with regard to the right of establishment and Art 59 TFEU with regard to service providers.

13

Council Directive 90/365 of 28 June 1990 on the right of residence for employees and

14

Council Directive 93/96 of 29 October 1993 on the right of residence for students [1993]

self-employed persons who have ceased their occupational activity [1990] OJ L180/28. OJ L317/59. 15

Council Directive 90/364 of 28 June 1990 on the right of residence [1990] OJ L180/26.

16

See, extensively: F Wollenschläger, Grundfreiheit ohne Markt (Mohr Siebeck 2007) 141; DJ Liñán Nogueras, ‘La ciudadanía de la Unión’ in GC Rodríguez Iglesias and DJ Liñán Nogueras (eds), El Derecho comunitario europeo y su aplicación judicial (Civitas 1993) 286.

17

Art 21 TFEU. The relationship between free movement and the citizenship of the Union continues to be affected by the malfunctions caused by it.

18

Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing

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Diffferent limitations operate with regard to free movement rights: the general exceptions regarding public order, the conditions based on the economic activities and fijinancial position of the individual exercising free movement rights, and certain limitations that afffect the access to positions in the public sector. The exceptions have been strongly limited by secondary law and by the jurisprudence of the Court of Justice. In this sense, the active role of the Court of Justice of the EU in interpreting free movement and citizenship provisions accounts for much of the success of the system. A paramount example of the importance of the ECJ’s case law is the broad interpretation of the interaction of the citizenship of the Union and the general prohibition of discrimination on nationality grounds, which has placed practically all European citizens that have crossed an internal border within the personal scope of EU law,19 granting them a general protection against discrimination on grounds of nationality on all matters related with the material scope of the Treaty. This approach has proven to be a powerful construction suitable to give rise to an authentic federal citizenship. As the corollary of the process of transmutation of the nature of free movement rights from the international to the constitutional paradigm, the Charter of Fundamental Rights enumerates the right of free movement as a fundamental right of EU citizens,20 extensible to third country nationals. The objective of free movement and the progresses towards its achievement have strongly animated the spill over efffect of integration in areas of internal afffairs such as cooperation in judicial criminal and civil matters and police cooperation, which were initially regarded as compensatory measures. Moreover, the European Union is developing a common immigration and asylum policy, which is progressively determining the policies of Member States with regard to nationals from third countries. Most of the instruments of secondary legislation that regulate the admission and statute of third country nationals provide for a limited degree of intra-EU mobility between Member States.21 The external projection of the EU has also given Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/ EEC, 90/365/EEC and 93/96/EEC [2004] OJ L158/77. 19

Case C-85/96 María Martínez Sala v Freistaat Bayern [1998] ECR I-2691.

20

Article 45(1) of the Charter of Fundamental Rights of the European Union [2007] OJ C303/1, states that ‘every citizen of the Union has the right to move and reside freely within the territory of the Member States’.

21

S Iglesias Sánchez, La libre circulación de los extranjeros en la Unión Europea: el régimen de movilidad en las directivas europeas en materia de inmigración (Reus 2010); S Iglesias Sánchez, ‘Free Movement of Third Country Nationals in the European Union? Main Fea-

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place to developments with regard to the right of establishment, and limited equal treatment provisions for national workers from associate countries through association and cooperation agreements. The internal competences of the Union in the migration arena also enable, under the principle of parallelism of competences, the adoption of international instruments. This possibility has only partially been exploited through visa facilitation or readmission agreements. The EU is further exploring the possibilities of its external action through non-legal means such as the so-called ‘mobility partnerships’, which have so far been agreed with Moldova, Cape Verde, Georgia, Armenia, and are being considered with regard to Mediterranean neighbours. These atypical instruments only partially cover legal migration through bilateral arrangements between the Member States and a third State, and are mostly focused in security issues and in the fijight against irregular migration. 2.

The European Economic Area and the European Free Trade Agreement

The European Union, together with its Member States, have concluded international agreements with other western European countries, that amount to the extension of EU free movement rights. The European Economic Area Agreement and the Bilateral Agreement with Switzerland on free movement of persons constitute in this sense the most advanced regime of extension of EU free movement rights to third country nationals, ensuring free movement for nationals of the EU Member States in EFTA countries and vice versa.22 Complete freedom to travel is also assured through the association of these countries to the Schengen acquis.23 Notwithstanding the particutures, Deficiencies and Challenges of the new Mobility Rights in the Area of Freedom, Security and Justice’ (2009) 15 ELJ 791; A Kocharov, ‘What Intra-community Mobility for Third-country Workers?’ (2008) 33 ELJ 913; A Wiesbrock, ‘Free Movement of Third-country Nationals in the European Union: The Illusion of Inclusion’ (2010) 35 ELR 455. 22

Agreement on the European Economic Area between the European Communities, their Member States and the Republic of Austria, the Republic of Finland, the Republic of Iceland, the Principality of Liechtenstein, the Kingdom of Norway, the Kingdom of Sweden [1994] OJ L1/1. Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons [2002] OJ L114/1.

23

Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis [2008] OJ L53/1; Agreement concluded by

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larities that remain in place with regard to Switzerland,24 the regime of EU mobility difffers from the EEA regime mostly with regard to those rights that arise directly out of the specifijic regulation and dynamics linked to citizenship of the European Union, such as voting rights, or some specifijic developments derived from the principles of solidarity and membership which the European Court of Justice has linked strictly to European citizenship.25 The original European Free Trade Association Agreement only contemplated the freedom of establishment for the nationals of the Member States.26 After the Swiss-EU and the EEA agreements were concluded, there was a need to adjust the Stockholm Convention to the new legal partnership.27 The Vaduz Convention of 2001 that modifijies the Convention establishing the EFTA, brings together Iceland, Liechtenstein, Norway and Switzerland, and enumerates as one of its goals the progressive liberalisation of the movement of persons.28 Protocol K, that develops the provisions of Chapter VIII of the EFTA Convention, establishes the right of entry, the right of residence and the right of access to economic activities, buttressed by the the Council of the European Union, the Republic of Iceland and the Kingdom of Norway on the association of these two states to the implementation, to application and to the development of the acquis de Schengen [1999] OJ L176/35; Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis ]2008] OJ L83/3. 24

As the Court of Justice has noted, Switzerland, by declining to join the European Economic Area agreement, did not join the internal market. Therefore, “[T]he interpretation given to the provisions of Community law concerning the internal market cannot be automatically applied by analogy to the interpretation of the Agreement.” Case C-351/08 Christian Grimme v Deutsche Angestellten-Krankenkasse [2009] ECR I-10777 at [29]. On the particularities of the Swiss regime, see S Peers, ‘The EC-Switzerland Agreement on Free Movement of Persons: Overview and Analysis’ (2000) 2 EJML 127.

25

See e.g. Case C-135/08 Janko Rottmann v Freistaat Bayern [1998] ECR I-1449 and Case C-34/09, Gerardo Ruiz Zambrano v Office national de l’emploi [2011] ECR I-1177.

26 27

Convention establishing the European Free Trade Association (1960) 370 UNTS 5, Art 17. J Nielson, ‘Labor Mobility in Free Trade Agreements’ in A Mattoo. and A Carzaniga (eds), Moving People to Deliver Services (OUP 2003) 93, 100.

28

Convention Establishing the European Free Trade Association, consolidated version, last amended on 20 September 2010.

Free Movement of Persons and Regional International Organisations

principle of non-discrimination on grounds of nationality, the coordination of social security systems and the provision of mutual recognition of professional qualifijications. It is also stated that Member States shall take all the necessary measures in order to ensure that rights and obligations which are equivalent to the EU acts incorporated in the EEA and in the Swiss-EU Agreements are also applied in the relations between them.29 In this sense the EEA Agreement has not only built the bridges between two regional organisations, but has served to foster personal mobility within the EFTA, prompting the enactment of a free movement system that did not exist before. 3.

The Benelux

After the Second World War, the Netherlands, Belgium and Luxembourg engaged in an economic union that served as the hard core and model for the early times of the European Communities. The Benelux Union Treaty of 1958,30 which came after diffferent international instruments that already served the purpose of the liberalization of travel conditions and labour markets,31 awarded a central role to the issue of the free movement of persons, together with the free movement of goods, capital and services.32 Free movement was understood not only as the possibility to enter and leave freely the territory of any of the contracting parties, but also encompassed national treatment with regard to settlement and residence, the exercise of civil rights, the enjoyment of social security conditions and conditions of employment, and the right to undertake economic activities.33 According to the provisions of the Benelux Economic Union Treaty, two diffferent subsequent Conventions were approved in 1960: the Benelux Convention on Establishment,34 supervised by a Committee on Freedom of Movement and Establishment of individuals; and the Convention concerning the Transfer of Entry and Exit Controls to the External

29

Art 16 Annex K EFTA.

30

Treaty instituting the Benelux Economic Union (3 February 1958) 381 UNTS 165.

31

On these instruments adopted during the 40s and 50s, see Richard Plender, International

32

Art 1 of the Treaty Establishing the Benelux Economic Union.

33

Art 2 and Part III (Arts 55–63) of the Treaty Establishing the Benelux Economic Union.

34

Convention of Application of Articles 55 and 56 of the Treaty Establishing the Benelux

Migration Law (2nd edn, Martinus Nijhoff 1988) 274–275.

Economic Union (19 September 1960) 480 UNTS 432.

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Frontiers of the Benelux Territory35 – which is an authentic precursor of the current Schengen system. The elimination of formalities at internal borders also had as a consequence the adoption of a common visa,36 the common negotiation of visa exemptions,37 and the adoption of a common position with regard to readmission agreements with third countries.38 The Benelux received explicit acknowledgement by the European Communities since the Rome Treaty, and even in the reform of Lisbon, this reference remains exclusive: no other sub-regional processes of economic integration are mentioned in the EU Treaty, and the doctrine has interpreted that the treatment awarded to the Benelux cannot be extended to other organisations such as the Nordic Council or the Visegrad Group.39 According to Article 350 TFEU (ex art 306 TEC), the EU Treaties do not preclude the existence or completion of unions between the Benelux countries, so far as ‘the objectives of these regional unions are not attained by application of the Treaties’. This provision allows the Benelux to establish a deeper cooperation among its members, and to preserve the results of that cooperation, without the risk of being considered discriminatory against the other EU members and their citizens. 40 The Benelux Treaty, concluded for a period of fijifty years, has recently undergone a process of modernization, taking into account the participation the Benelux in the wider project of the European Union, that has absorbed several of the material fijields of cooperation and of the goals of the 1958 Treaty. 41 After a reflexion period, the process of cooperation in the Benelux has been reoriented to those areas where specifijic needs, or added value have been identifijied, avoiding overlap with the EU. In these areas – such as transfrontier cooperation – the Benelux aims at continuing 35

Convention on the Transfer of Entry and Exit Controls to the External Frontiers of the Benelux Territory (11 April 1960) 374 UNTS 3.

36

Protocol 2 Concerning the Abolition of Controls and Formalities at the Internal Frontiers of Benelux and the Removal of Restrictions on Free Movement (29 April 1969) 779 UNTS 435.

37

See e.g. Exchange of letters constituting an agreement concerning the abolition of the visa requirement between Belgium, Luxembourg and Netherlands and Israel (adopted 18 June 1953, entered into force 18 July 1953) 548 UNTS 47.

38

Agreement concerning the acceptance of persons at the common frontiers between the territory of the Benelux States and France, with protocol (16 April 1964) 548 UNTS 27.

39

J Wouters and M Vidal, ‘Towards a Rebirth of Benelux’ (2007) 40 RBDI 533.

40

ibid.

41

This was already noted by Comité van Wijzen, ‘De Benelux, opniew bezien’ (1994) Doc R (95)4.

Free Movement of Persons and Regional International Organisations

its role as precursor of the project of European integration. As has been highlighted by the Dutch Advisory Council in International Afffairs, European integration has meant for diffferent sectors the end of Benelux cooperation, or its continuation within the EU. 42 The new Benelux Union Treaty adopted in 2008 makes clear that this has been the case with regard to the rules related to the free movement. Indeed, as it is noted in the preamble of the new Benelux Treaty, participation in the European Union modulates the content of this integration process. Granted, free movement of persons is still mentioned among the goals of Article 1 of the Treaty, but the Chapter regulating ‘national treatment, freedom of movement and the exercise of economic and professional activities’ has been eliminated from the new Treaty. 43 The lack of a specifijic free movement Chapter in the Benelux Treaty does not hinder further cooperation in the free movement and migration areas, since legal developments in the Benelux usually occur through independent conventions that do not need to fijind a legal basis in the Benelux Treaty. Even thought the provisions of the Benelux have been overshadowed by the evolution of free movement norms in the European Union, by the creation of the Schengen Area and by the adoption of a common immigration policy, Benelux cooperation can still have an added value in areas such as transfrontier workers or cooperation in the fijield of immigration from third countries. 44 In the framework of Benelux cooperation regarding transfrontier workers, there is an attempt at coordinating regulations, particularly those implementing EU rules, and the Benelux General Secretariat provides for updated information through a specifijic website destined to transfrontier workers. 45 In this regard, the Benelux countries continue to conclude joint agreements with third countries aimed at eliminating requirements for diplomatic passports, 46 and readmission 42

Dutch Advisory Council on International Affairs, The Benelux: the Benefits and Necessity of Enhanced Cooperation (ACIA 2007).

43

Treaty Revising the Treaty Establishing the Benelux Economic Union signed on 3 Febru-

44

Mémorandum de Senningen du 4 juin 1996 entre le Royaume des Pays-Bas, le Royaume

ary 1958, of 2008. de Belgique et le Grand-Duché de Luxembourg concernant la coopération dans le domaine de la police, de la justice et de l’immigration; Décision du 12 septembre 2003 portant restructuration des structures de concertation mises en place par le Mémorandum de Senningen. 45

See the website accessed 31 March 2012.

46

Regarding the abolition of the visa requirement for holders of diplomatic passports, see Exchange of letters with Albania (9 June 2005) 2476 UNTS; Exchange of letters with Mon-

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agreements. 47 In any case, Article 350 TFEU only allows to go further in the integration, but not to deviate from EU provisions, and EU rules enjoy primacy over Benelux law and conventions. 48 4.

Nordic Cooperation

The sub-regional integration experience of the Nordic Countries (involving Denmark, Sweden, Iceland, Norway, Finland and at a variable level, the Faeroe Islands, Greenland and the Åland Islands), alongside the peculiar experience of the Nordic Council and of the Nordic Council of Ministers, covers not only economic integration through the Nordic Common Labour Market, but also encompasses the Passports Union and the cooperation in the fijield of nationality. The obligation for Nordic citizens to carry out passports when travelling and residence permits in order to reside in other Nordic States was abolished in 1954, 49 the year in which also the Agreement on the Nordic Common Labour Market was signed.50 These developments were soon completed with the elimination of border controls in the intra-Nordic region, and the establishment of common rules for the management of the Nordic external borders.51 This agreement was modifijied by the

tenegro (21 December 2006) 2549 UNTS; Exchange of letters with the former Yugoslav Republic of Macedonia (30 May 2006) 2563 UNTS; Exchange of letters with Serbia (21 December 2006) 2563 UNTS; Exchange of letters with Bahamas (2 February 2006) 2581 UNTS. 47

Agreement with Lithuania (9 June 1999) 2310 UNTS; Agreement with Estonia (3 February 1999) 2306 UNTS; Agreement with Bulgaria (7 October 1998); Agreement with Hungary (23 January 2002); Agreement with the Swiss Confederation (12 December 2003) 2423 UNTS; Agreement with Bosnia and Herzegovina (19 July 2006) 2556 UNTS; Agreement with the former Yugoslav Republic of Macedonia (30 May 2006) 2563 UNTS.

48

J Wouters and M Vidal, ‘Towards a Rebirth of Benelux’ (2007) 40 RBDI 533.

49

Protocol concerning the exemption of nationals of the Nordic countries from the obligation to have a passport or residence permit while resident in a Nordic country other than their own (adopted 22 May 1954, entered into force 1 December 1955) 199 UNTS 29. Iceland participated, by an exchange of notes, on 1 December 1955. The Protocol includes the Faroe Islands from 1 January 1966 (199 UNTS 2675).

50 51

Agreement on the Nordic Common Labour Market (1954, 199 UNTS 3. Nordic Passport Convention (12 July 1957) 322 UNTS 245, amended by the agreement of 27 July 1979 supplemented by the agreement of 2 April 1973.

Free Movement of Persons and Regional International Organisations

agreement of 18 September 2000 in order to ensure the smooth integration of the Nordic Passport Union in the Schengen area.52 The Nordic Common Labour Market agreement abolished the need of work permits and established the right of equal treatment with regard to remuneration and working conditions: under this framework, the right to be able to settle and freely take up employment is considered a ‘fundamental right for nationals of the Nordic countries’.53 After Sweden, Denmark and Finland joined the European Union, EU law on free movement of workers (which is also applicable to Norway and Iceland under the European Economic Area Agreement) has overridden the provisions of the Nordic Common Labour Market regarding equal treatment and market access. The Nordic countries, unlike the European Union, have addressed the efffects of free movement in the conditions to gain and change nationality. The facilitation of acquisition of nationality by Nordic citizens from other Nordic states was already one of the objectives of the Helsinki Treaty of 1962.54 The harmonisation of naturalisation norms has been followed by an Agreement, which not only gives very favourable conditions to change nationality from one Nordic state to another, but that also takes into account residence periods in other Nordic countries to facilitate the naturalization of third country residents across Nordic states (under certain conditions regarding the length of residence and the age of the applicant).55

52

Agreement of 18 September 2000 between Denmark, Finland, Iceland, Norway and Sweden supplementing the Nordic Passport Convention (12 July 1957) 2155 UNTS 20.

53

See the padopted reamble of the Agreement Concerning a Common Nordic Labour Market (6 March 1982) 1347 UNTS 36, which replaces the Agreement of 1954.

54

Treaty of Co-operation between Denmark, Finland, Iceland, Norway and Sweden (the Helsinki Treaty) (adopted on 23 March 1962, entered into force 1 July 1962) 795 UNTS 370, Art 3. This Treaty was amended by Agreements that were signed on 13 February 1971, 11 March 1974, 15 June 1983, 6 May 1985, 21 August 1991, 18 March 1993, and 29 September 1995.

55

Agreement between Denmark, Finland, Iceland, Norway and Sweden on the Implementation of Certain Provisions Concerning Nationality (adopted 14 January 2002) 2374 UNTS 313.

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5.

Council of Europe56

The Council of Europe cannot be regarded as an organisation pursuing regional integration. It embodies the alternative to the federalist approach that inspired the European Union, and can be therefore be roughly qualifijied as an international organisation of cooperation. Consistently with its nature, the Statute of the Council of Europe does not include any provision that expressly aim at enhancing free movement of persons: its only declared objective is ‘to achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress’.57 Despite this silence, the Council of Europe has served as a launching pad for international instruments that have paved the way for further developments in the area of free movement of persons, and has settled a common ground for the treatment of nationals of other contracting parties on the basis of reciprocity, and for the protection of human rights of all persons within their jurisdiction. Diffferent conventions have established regimes of non-discrimination with regard to social security, old-age schemes, social and medical assistance.58 With regard to physical mobility, the European Agreement on Regulations governing the Movement of Persons between Member States of the Council of Europe establishes the right to enter and leave the territory of other contracting parties upon presentation of one of the identity documents contained in an annex.59 The European Convention on Establishment contains moreover provisions that prompt the facilitation of entry, 56

Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Monaco, Montenegro, The Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, San Marino, Serbia, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, the FYRM, Turkey, Ukraine, and the UK.

57

Statute of the Council of Europe (1949) 1 ETS, Art 1.

58

European Interim Agreement on Social Security other than Schemes for Old Age, Invalidity and Survivors (1953) 13 ETS; European Convention on Social and Medical Assistance (1953) 14 ETS; European Code of Social Security (1964) 48 ETS; European Convention on Social Security (1972) 78 ETS.

59

European Agreement on Regulations governing the Movement of Persons between Member States of the Council of Europe (1957) 25 ETS. Sixteen states have ratified the Convention. All of them, but Turkey and Ukraine take part on the Schengen acquis.

Free Movement of Persons and Regional International Organisations

residence, and access to economic occupations, including guarantees against expulsion and equal treatment rights.60 The added value of these instruments is, nonetheless, limited, since the great majority of the contracting parties are also participating States of the European Economic Area and of the Schengen Area. Moreover, legal integration within the European Union can have a limitative efffect on advances towards free movement in the “greater Europe”. As an example we could mention that since Ukraine is one of the States whose nationals need a visa when crossing the EU external borders, most EU Member States have suspended the European Agreement on Movement of Persons with that country. The most impressive developments of the Council of Europe have occurred through the application of the European Convention on Human Rights,61 which have a strong impact in immigration policies of Member States, and also of the European Union.62 Besides the fact that the rights of the Convention are proclaimed with regard to all persons subjected to the jurisdiction of State parties, through the case law of the European Court of Human Rights very important limitations have been established to migration policies, mostly through the right to family life and privacy (Article 8) and through the specifijic prohibitions of degrading or inhuman treatment (Article 3). Moreover, the joint application of Article 14 (prohibition of discrimination) with other substantive rights is eroding the capacity of States to discriminate on grounds of nationality. III.

Africa: Towards the Convergence of Subregional Struggles for Free Movement

Relying in the positive association between regional integration and development,63 regional international organisations have multiplied in the African continent under the auspices of the African Union, which originally animated its members to engage

60

European Convention on Establishment (1955) 19 ETS. Only twelve states have ratified it. All of them, but Turkey, are members of the EEA Agreement.

61

Convention for the Protection of Human Rights and Fundamental Freedoms (1950) 5 ETS.

62

On the impact of the ECHR on the status of foreigners, see generally: D Boza Martínez, Los extranjeros ante el Convenio Europeo de Derechos Humanos (Universidad de Cádiz Servicio de Publicaciones 2007); H Lambert, The Position of Aliens in Relation to the European Convention on Human Rights (Council of Europe 2006).

63

UNGA Res 46/145 (Regional economic integration among developing countries) (17 December 1991) UN Doc A/RES/46/145.

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in economic integration.64 But the result of this reliance in regional integration has resulted in strong fragmentation, sometimes along former colonial divides,65 giving rise to a plurality of regional blocks that partially overlap with each other.66 The map of economic integration in the African continent is further complicated, due to the proliferation of sub-regional experiments, which bring together States participating in diffferent regional bocks, having as result that already overlapping organisations encompass at the same time sub-processes of variable geometry. This plurality of integration experiences has to be regarded in light of the ambitious project of continental integration under the African Economic Community (AEC),67 which is based on the strengthening of existing Regional Economic Communities (RECs),68 and on the creation of new ones where they did not exist before.69 Therefore, the achievement of free movement of persons at the continental level, which is among the ultimate objectives of the AEC,70 rests upon the achievements in this area of the diffferent RECs. The correct performance at the regional level should further enable the generalization of achievements and the construction of a free movement area across a pan-African continental common market. 64

Organisation of African Unity, Lagos Plan for Action for the Economic Development of Africa 1988-2000 (Institute for Labor Studies, 1981).

65

JM Sobrino Heredia, ‘Las organisaciones internacionales en el mundo árabe e islámico y las organisaciones internacionales en África’ in M Díez de Velasco, Las Organisaciones Internacionales (5th edn, Tecnos 2008) 835.

66

Several of the RECs overlap in membership: for example, in East Africa, Kenya and Uganda are members of both the EAC and COMESA, whereas Tanzania, also a member of the EAC, left COMESA and joined SADC in 2001. This multiple and confusing membership creates duplication and sometimes competition in activities, while placing additional burdens on already over-stretched foreign affairs staff to attend all the various summits and other meetings.

67

Treaty Establishing the African Economic Community (adopted 2 June 1991) 30 ILM 1241.

68

Defined as ‘regional grouping of African states organised into a legal entity by treaty, with economic and social integration as main objective’ in Protocol on Relations between the African Union and the Regional Economic Communities, Art 1.

69

Abuja Treaty AEC, Art 28. The recognition of new RECs has come to a halt due to the problems posed by excessive fragmentation. See AU Assembly, Decision on the Moratorium on the Recognition of Regional Economic Communities (RECs) (July 2006) AU Doc EX.CL/278 (IX) and Assembly/AU/Dec.112 (VII).

70

Abuja Treaty Art 43, which also mandates the adoption of a specific Protocol on free movement of persons, establishment and residence.

Free Movement of Persons and Regional International Organisations

Nonetheless, the ambitious schedule of the Abuja Treaty is not being successfully followed, which has lead to a process of dialogue and reflection on the rationalization of RECs.71 Even if the objective of an area of pan-African free movement remains somehow vague, since the eventual future ‘merger’ of RECs and their legal status in the AEC has not been given a clear legal basis,72 it is already inspiring interesting moves towards convergence, as we will address below. The developments in the fijield of the free movement of persons in the eight RECs recognized by the AU vary enormously and follow diffferent integration patterns. Here, we will concentrate in the Economic Community of West African States (ECOWAS), in the Common Market for Eastern and Southern Africa (COMESA), in the Economic Community of Central African States (ECCAS), in the Southern African Development Community (SADC) and in the East African Community (EAC). The other RECs recognized by the AU have also, in one way of another, addressed the issue of free movement of people and migration. The development of the supra-regional Community of Sahelo-Saharian States (CEN-SAD), which also aims at facilitating free movement of persons,73 has very much depended on the attitude of Libya towards community migrants, fact that makes the future of this project rather uncertain.74 Free movement of persons is among the objectives of the Arab Maghreb Union (AMU),75 but the progresses have been very limited in this direction since the process has been negatively afffected by political tensions among its

71

See the Declaration of the Ministerial Meeting on Rationalization of RECs (adopted 27–31 March 2006). See, further, accessed 25 August 20014..

72

R Frimpong Oppong, ‘The African Union, the African Economic Community and Africa’s Regional Economic Communities: Untangling a Complex Web’ (2010) 18 African Journal of International and Comparative Law 92.

73

Treaty on the establishment of the Community was signed by the Leader of Great ElFateh Revolution and the Heads of State of Burkina Faso, Mali, Niger, Chad and Sudan. The Central African Republic and Eritrea joined the Community during the first Summit of the organisation held in Syrte in April 1999. It also invites Member States to reach agreements giving citizens of other member States the same rights, privileges and duties as to their own citizens.

74

J Brachtet, ‘Blinded by Security. Reflections on the Hardening of Migratory Policies in Central Sahara’ (2010) IMI Working Paper Series No 6.

75

Treaty of Marrakech 1989, Art 3.

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Member States.76 The Inter-Governmental Authority on Development (IGAD) has among its objectives the harmonisation of policies to promote free movement of goods, services and people, and the establishment of residence,77 and has launched a consultative process on migration. 1.

The Economic Community of West African States (ECOWAS)78

The Treaty establishing the ECOWAS situated among its priorities the establishment of a common market, in the framework of which free movement of persons was to be attained.79 According to the Treaty, the citizens of the Community shall enjoy the rights of entry, residence and establishment.80 For these purposes, the Treaty was soon complemented by the 1979 Protocol relating to the free movement of persons, residence and establishment,81 the authentic flagship of the Community, and cornerstone of the project of the ECOWAS citizenship. The Protocol and the Code of Conduct aimed at enabling its proper implementation envisaged the achievement of free movement of persons through a progressive approach in three phases, concerning the right of entry and the abolition of visa, the right of residence and the right of establishment.82 The creation of a visa-free area is the most remarkable achievement in this sense. It allows for stays up to ninety days for citizens who are not deemed inadmissible and who are in possession of a travel document and of an international health certifijicate, and establishes certain guarantees regarding ex-

76

T Broude, ‘Regional Economic Integration in the Middle East and North Africa: A Primer’ (2010) 1 EYIEL 269, 291.

77

Agreement Establishing the Inter-Governmental Authority on Development (as amended in 1996) Art 7.

78

Treaty establishing the Economic Community of West African States of 28 May 1975. The member states are Benin, Burkina Faso, Cape Verde, Cote d’Ivoire , Gambia, Ghana, Guinea, Guinea Bissau, Liberia , Mali, Niger, Nigeria, Senegal, Sierra Leone and Togo.

79

Treaty Establishing the Economic Community of West African States (ECOWAS) (adopted

80

ECOWAS Treaty Art 59.

81

Protocol A/P.1/5/79 relating to Free Movement of Persons, Residence and Establishment

28 May 1975) 1010 UNTS 7 (amended in 1993) Art 3.

(June 1979) OJ ECOWAS 1. 82

Supplementary Protocol on the Code of Conduct for the Implementation of the Protocol on Free Movement of Persons, the Right of Residence and Establishment (July 1985) OJ ECOWAS 7.

Free Movement of Persons and Regional International Organisations

pulsion. In 1986 a harmonised immigration and emigration form was adopted,83 and in 1990, an ECOWAS residence card was introduced for citizens that wanted to exercise the right of residence in other Member State.84 Aimed also to foster mobility, the ECOWAS travel certifijicate was created in 1986,85 and so was later the ECOWAS passport in the year 2000.86 Phases II and III should have been completed following the adoption of subsequent supplementary Protocols on the right of residence,87 and on the right of establishment,88 which also contain the regime to be applicable in order to take up employment in other Member States. According to the doctrine, provisions on the right of free movement rights are suitable to deploy direct efffect, and be relied upon before national courts.89 A particularly remarkable feature of the ECOWAS is that free movement rights are proclaimed with regard to Community citizens, who are defijined as the citizens of the Member States that fulfijil the conditions of the Protocol on the defijinition of Community citizen. This protocol does not automatically recognise as community citizen every national of a Member States, but establishes additional conditions for acquiring and loosing community citizenship.90 Additional measures related to in-

83

Decision C/DEC.3/12/92 on the Introduction of a Harmonised Immigration and Emigration Form in ECOWAS Member States.

84

Decision A/DEC.2/5/90 Establishing a Residence Card in ECOWAS Member States.

85

Decision A/DEC 2/7/85 of the Authority of Heads of State and Government of the Economic Community of West African States Relating to the Establishment of ECOWAS Travel Certificate for Member States (July 1985) OJ ECOWAS 7..

86

Not yet issued by all Member States, due to technical and economic problems, see J Martens, ‘Moving Freely on the African Continent: the Experiences of ECOWAS and SADC with Free Movement Protocols’ in R Cholewinski, R Perruchoud and E MacDonald (eds), International Migration Law: Developing Paradigms and Key Challenges (TMC Asser Press 2007) 346.

87

Supplementary Protocol on the Second Phase (Right of Residence) of the Protocol on Free Movement of Persons, the Right of Residence and Establishment (July 1986) OJ ECOWAS 9.

88

Supplementary Protocol on the Implementation of the Third Phase (Right of Establishment) of the Protocol on Free Movement of Persons, the Right of Residence and Establishment (adopted June 1990, entered into force provisionally 29 May 1990) OJ ECOWAS 17.

89

ES Nwauche, ‘Enforcing ECOWAS Law in West African National Courts’ (2011) 55 Journal of African Law 181.

90

Protocol A/P.3/5/82 Relation to the Definition of Community Citizen.

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formation and mass-media (press) are envisioned by the Treaty ‘in order to involve more closely the citizens of the Community in the regional integration process’.91 Despite the promising legal framework, the originality and resilience of the process, the harsh political and economic reality has strongly and negatively influenced the perspectives of free movement rights in the ECOWAS. The implementation of the Protocols has been very problematic. The suspension of some provisions of the 1979 Protocol and the massive expulsion of Community citizens by Nigeria –the most important economy in the region- due to the economic downturn that followed the oil boom in the 80s,92 is often cited as just one example of the vulnerability of mobility rights in a region where conflict, political instability and corruption extraordinarily hinder the progress towards the objective of comprehensive free movement of persons.93 Armed conflicts have posed a specifijic challenge to free movement, creating specifijic needs for the movement of ECOWAS citizens who are also refugees, which have partially been addressed by the ECOWAS Commission.94 Against this background, the ECOWAS has advanced initiatives towards an ‘ECOWAS common approach on migration’ that regards the issue of movement of persons from a more global point of view, stressing the need for harmonised migration policies and action controlling irregular migration.95 2.

The Union Economique et Monétaire Ouest Africaine (UEMOA)96

Eight of the Member States of the ECOWAS are also members of the UEMOA, with an institutional and normative structure that attempts to closely reflect the European 91

ECOWAS Treaty Article 66.

92

Many of them did not have work authorizations. In this regard, see Richard Plender, International Migration Law (2nd edn, Nijhoff 1988), 279

93

The challenges and problems faced in this sense by the ECOWAS have been described by several authors. See e.g. B Habibu Yaya, ‘Economic Community of West African States (ECOWAS) and the Challenges of Building a new Citizenship in West Africa’ (7th Global Conference on Pluralism, Inclusion and Citizenship, Prague, 12th-14 March 2012); A Adepoju, ‘Regional Organisations and Intra-Regional Migration in Sub-Saharan Africa: Challenges and Prospects’ (2001) 39 International Migration 43.

94

ECOWAS Committee on Trade, Customs, Immigration, ‘Memorandum on the Equality of treatment for refugees with other citizens of Member States of ECOWAS in the exercise of Free Movement, Right of Residence and Establishment’ ( 25–27 September 2007).

95

Meeting of Ministers on ECOWAS Common Approach on Migration (Abuja, 14 June 2007).

96

Benin, Burkina Faso, Cote d’Ivoire, Guinea Bissau, Mali, Niger, Senegal, and Togo,

Free Movement of Persons and Regional International Organisations

Union. The UEMOA Treaty also, that inherits from the CEAO the goal of promoting integration in the francophone West Africa,97 also aims at establishing a common market with free movement of persons.98 Article 91 covers free movement of persons (embracing the principle of freedom to travel, freedom of residence), whereas Article 92 creates the right of establishment and Article 93 establishes the freedom to provide services. On this legal basis, several secondary acts have been approved regulating the freedom of movement and the establishment of certain professionals, such as accountants, doctors, architects, dentists or pharmacists.99 The UEMOA has also established a common policy for the free movement and residence of third country nationals that, in order to promote investment and tourism, attempts at establishing a common visa and at the harmonisation and simplifijication of administrative procedures.100 3.

The Common Market for Eastern and Southern Africa (COMESA)101

The Treaty on the Common Market for Eastern and Southern Africa adopted in 1993, envisions the removal of obstacles to the free movement of persons, labor and services, the right of establishment for investors and the right of residence within the 97

On the former Communauté économique de l’Afrique de l’Ouest (CEAO), see Richard Plender, International Migration Law (2nd edn, Martinus Nijhoff 1988) 276.

98

UEMOA Art 4.

99

Règlement No 05/2006/CM/UEMOA relatif à la libre circulation et à l’établissement des experts-comptables et des comptables agrées ressortissants de l’Union au sein de l’espace UEMOA; Directive No 06/2005/CM/UEMOA relative à la libre circulation et à l’établissement des médecins ressortissants de l’Union au sein de l’espace UEMOA; Directive No 07/2005/CM/UEMOA relative à la libre circulation et à l’établissement des architectes ressortissants de l’Union au sein de l’espace UEMOA; Directive No 06/2008/ CM/UEMOA relative à la libre circulation et à l’établissement des pharmaciens ressortissants de l’Union au sein de l’espace UEMOA, Directive No 07/2008/CM/UEMOA relative à la libre circulation et à l’établissement des chirurgiens-dentistes ressortissants de l’Union au sein de l’espace UEMOA.

100 Acte additionnel No 01/2009/CCEG/UEMOA instituant une politique commune de l’UEMOA, dans le domaine de la circulation et du séjour des personnes non ressortissants de l’Union. 101

Treaty establishing the Common Market for Eastern and Southern Africa 1993 (1994) 33 International Legal Materials 1072. Member States: Burundi, Union of the Comoros, Democratic Republic of the Congo, Djibouti, Egypt, Eritrea, Ethiopia, Kenya, Libya, Madagascar,

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Common Market.102 Nonetheless, the foundational Treaty left to further cooperation the adoption of specifijic measures for the achievement of these goals, and mandated the conclusion of a specifijic Protocol.103 Until that moment, the 1984 Protocol on the Gradual Relaxation and Elimination of Visas, adopted under the framework of the Preferential Trade Area of Eastern and Southern Africa (PTA) that preceded the creation of the COMESA, remains in force. The 2001 Protocol on the free movement of persons, labor, services, right of establishment and residence,104 is the backbone of the COMESA regime for free movement of persons. It sets the conditions for the relaxation and progressive elimination of visa requirements and establishes certain guarantees in the event of expulsion. It also articulates a program for the progressive removal of restrictions to the movement of workers, to the provision of services and to the right of establishment. Finally, the Protocol establishes that also, within a period to be determined by the Council, the right of residence should become a reality. Yet, due to the lack of ratifijication, the Protocol has not entered into force,105 which has motivated the adoption of the 2007-2010 Strategic Plan in order to facilitate consultations to foster ratifijication by States, but also with the aim of designing a detailed programme on the movement of workers, and to foster capacity building among immigration offijicials.106 Also, as a measure that might ease the ratifijication and implementation of the free movement Protocol, the COMESA is trying to foster the harmonization of migration policies by the adoption of a Model law on immigration.107 An additional possible cause that might explain the reluctance towards ratifijication of the Protocol has been advanced by the doctrine: the wide jurisdiction attributed to the COMESA Court of Justice, which gives individuals the right to challenge the legality of acts Malawi, Mauritius, Ruanda, Seychelles, Sudan, Swaziland, Uganda, Zambia and Zimbabwe. 102

COMESA Art 4(6)(e).

103

COMESA Art 164.

104 COMESA Protocol on the Free Movement of Persons, Labour, Services, Right of Establishment and Residence 105

Only Burundi, Kenya, Ruanda and Zimbabwe have signed the Protocol. The three first countries are members of the EAC. K Rubia, ‘The Inter-regional Mobility Aspects of the Proposed Tripartite Free Trade Area’ (2010) 10 MRISAY 46, 51.

106 International Organisation for Migration, Free Movement of Persons in Regional Integration Processes (IOM 2010) 29. 107

See the website accessed 25 August 2014.

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of the Member States that infringe COMESA instruments after exhaustion of local remedies.108 4.

The East African Community (EAC)109

The Treaty on the East African Community (EAC) adopted in the year 2000, enumerates as one of its operational principles the establishment of an export oriented economy in which there shall be free movement of persons, services, capital and goods. Art 104 of the Treaty further states that a Protocol on the free movement of persons, labour, services and the right of establishment and residence should be adopted. But instead of adopting a specifijic protocol, this development has occurred in the framework of the Protocol on the Common Market that entered into force in 2010, shortly after its signature in 2009. Together with the Protocol, four annexes on the rights of free movement of persons have been adopted in order to implement the provisions of the Protocol and to ensure uniformity in the application, and that the process is transparent, accountable, fair and predictable. The provisions regarding free movement of persons relate to the visa free mobility across member States, free movement within each State, the right to stay and the right to exit, with due regard to the public policy limitations.110 Under the Protocol, workers are entitled to apply and take up employment in the private sector (unless diffferently stated in national law), and stay in the territory for the purpose of employment in accordance with national provisions. The regime for free movement of workers comprises the right of equal treatment with regard to employment, remuneration, working conditions and social security. The right to family reunifijication is also recognised with regard to accompanying spouses and children. Also, the Protocol contains specifijic provisions for harmonization and mutual recognition of academic and professional qualifijications.111 The annex containing the regulations on free movement of workers establishes the schedule for liberalisation, stating the particular categories of workers to which the Protocol is applicable. The Protocol also sets up the right of establishment and the freedom to provide services, accord108 COMESA Art 26. See JP Trachtman, The International Law of Economic Migration: Toward the Fourth Freedom (WE Upjohn Institute 2009) 223. 109 Burundi, Kenya, Rwanda, Tanzania and Uganda. The Treaty on the East African Community follows a previous integration experience existed between 1967–1977, with the Former East African Community. 110

TEAC Art 7.

111

TEAC Protocol Art 11.

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ing to an annexed schedule.112 The regime is completed with the right of residence and its implementing annex, which creates a common regime of residence for all the categories of citizens and their family members admitted under the previously mentioned schemes.113 All these provisions have to be informed by the principles in which the Protocol is based: non-discrimination on grounds of nationality and that Member States should accord nationals of other parties not less favourable treatment than to third parties. After these developments, and particularly with regard to the issue of free movement of persons, the EAC has become one the most advanced RECs in the African continent.114 5.

The Southern African Development Community (SADC)115

The Southern African Development Community has for a long time struggled to set in motion a regime for free movement of persons. Among the objectives of its foundational Treaty is the development of policies aimed at the progressive elimination of obstacles to the four freedoms.116 An ambitious Draft Protocol that was elaborated in 1995 and which, similarly to the ECOWAS system,117 contemplated a phased approach towards free movement, was strongly opposed by South Africa.118 A new Draft Protocol on the free Movement of Persons in SADC was elaborated in 1997. Being formally adopted in 2005, is still moving slowly towards the necessary number of ratifijications to enter into force. The wording of the new draft Protocol appears to be much more cautious than its predecessor: it shifts from the language 112

TEAC Protocol Art 13 and Part F.

113

TEAC Protocol Art 14.

114

In this sense, see J Thuo Gathii, African Regional Trade Agreements as Legal Regimes (CUP 2011) 188.

115

Treaty of the Southern African Development Community in (1992) AJICL and (1993) RADIC 418. Angola, Botswana, Democratic Republic of the Congo, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia, and Zimbabwe.

116

SADC Art 5(2).

117

J Martens, ‘Moving Freely on the African Continent: the Experiences of ECOWAS and SADC with Free Movement Protocols’ in R Cholewinski, R Perruchoud and E MacDonald (eds), International Migration Law: Developing Paradigms and Key Challenges (TMC Asser Press 2007) 356.

118

On the vicissitudes of this Protocol, see JO Oucho and J Chrush, ‘Contra Free Movement: South Africa and the SADC Migration Protocols’ (2001) 48(3) Africa Today 139.

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of rights to the mere “facilitation” of entry, residence and establishment; it adopts a much more limited stance with regard to visa-free stays; and it makes an emphasis in the cooperation in the fijight against illegal migration, eliminating the commitment to harmonization of labour policies.119 The Economic Community of Central African States (ECCAS)120

6.

The Treaty establishing the Economic Community of Central African States also has among its objectives the elimination of obstacles to the free movement of persons.121 Article 40 of the Treaty, refers to the nationals of the Member States as citizens of the Community and leaves the development of the conditions under which such freedoms are to be deployed to Protocol VII, annexed to the foundational Treaty. The Protocol establishes the conditions for the freedom to travel, to establish residence and undertake independent economic activities, to exercise the freedom of establishment and to take up employment. Developing these provisions, several implementing secondary acts have been adopted regarding free movement of certain categories of persons,122 setting up a schedule to dismantle the obstacles to the free movement of persons,123 and establishing a common passport.124

119

J Martens, ‘Moving Freely on the African Continent: the Experiences of ECOWAS and SADC with Free Movement Protocols’ in R Cholewinski, R Perruchoud and, E MacDonald (eds), International Migration Law: Developing Paradigms and Key Challenges (TMC Asser Press 2007) 359.

120

The Treaty establishing the Economic Community of Central African States (adopted 19 October 1983). Angola, Burundi, Cameron, Central African Republic, Congo, Democratic Republic of the Congo, Gabon, Ecuatorial Guinea, Sao Tome et Principle and Chad.

121

ECCAS Art 4.

122

Décision No 03/CEEAC/CCEG/VI/90 (modified by Décision No 01/CEEAC/CCEG/X/02) du 26 janvier 1990 relative à la libre circulation de certaines catégories de ressortissants des Etats membres à l’intérieur de la Communauté Economique des Etats de l’Afrique Centrale.

123

Décision No 12/CEEAC/CCEG/XIV/09 du 24 octobre 2009 portant adoption du calendrier de démantèlement des entraves à la Libre Circulation des ressortissants des Etats membres à l’intérieur de la CEEAC.

124

Règlement No 01/08 UEAC-042-CM-17 du 20 juin 2008 instituant le nouveau Passeport CEMAC.

247

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Nonetheless, the reality is far from efffective implementation of these legal instruments.125 Visa requirements still remain in place, invoking security concerns. Obviously, the security situation negatively afffects the implementation of any measure in this fijield: peace and security are the fundamental prerequisites to any attempt at implementing free movement instruments.126 7.

Convergence Efforts

The need to rationalize the multiplying processes of regional integration and to tackle the disruptions of multiple memberships is strongly felt in order to gain in efffijiciency and to foster integration.127 To mitigate the problems of overlapping membership and in order to advance towards convergence, following the advice of the African Union, three of the organisations above mentioned are moving towards the creation of the EAC-COMESA-SADC Tripartite Free Trade Agreement. This experience is considered a commendable development towards the objectives of the Abuja Treaty, setting an example to be followed by the rest of RECs.128 The Draft Agreement Establishing the Tripartite Free Trade Area that is being currently negotiated has as its main objective the creation of a “larger single internal market with free movement of goods and services and business persons, and eventually, to establish a customs union and a common market”. An annex to the draft Agreement establishes the conditions for the exercise of this freedom, which encompasses business visitors, traders and investors, professionals and intra-corporate transferees, allowing the establishment of numerical quotas.129 Even thought at this stage the project includes only mobility of businessmen, the eventual pros125

Comité intergouvernemental d’experts, Enjeux et opportunités des politiques industrielles en Afrique Centrale, ‘Rapport sur l’état d’avancement du processus d’intégration en Afrique Centrale’, ECA/SRO-CA/ICE/11/PD/03.b Janvier 2011.

126

This has been put forward by the leaders of the ECCAS, as stated in First report of the Secretary-General on the activities of the United Nations Regional Office for Central Africa (10 November 2011) S/2011/704.

127

See the African Union, Study for the Quantification of Regional Economic Communities (RECs) Rationalization Scenarios (Provisional Report, AU 2008).

128

African Union Commission, Follow-Up Report on the Implementation of Recommendations from the Fourth Conference of African Ministers in charge of Integration (COMAI IV) (Department of Economic Affairs 2011).

129

On these projected regime, see K Rubia, ‘The inter-regional mobility aspects of the proposed Tripartite Free Trade Area’ (2010) 10 MRISAY 46.

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pect of creating a common market does not exclude the future generalization of free movement of persons. IV.

The Americas: Diverging Subregional Approaches to Human Mobility

In the American continent, a clear divide emerges between the approach lead by the United States under the model of free trade agreements, and the attempts at deeper regional integration experiences that encompass ambitious projects of free movement of persons. The free trade agreement model has been the main instrument of the United States through the North American Free Trade Agreement (NAFTA),130 and the Dominican Republic-Central America Free Trade Agreement (DR-CAFTA).131 The NAFTA contemplates provisions with regard to the temporary entry of businesspersons (encompassing professionals, intra-corporate transferees, traders, investors and business visitors), which in practical terms entails the creation of a non-immigrant visa, consistently under-utilized. The DR-CAFTA does not even contemplate these limited possibilities, excluding any impact in immigration measures of the parties through the Understanding Regarding Immigration Measures.132 This situation openly contrasts with the approaches of the Andean Community, the MERCOSUR, the CARICOM and the SICA, where regional integration is accompanied by diffferent instruments that aim at achieving free movement of persons in diffferent degrees and through diffferent approaches. 1.

The Andean Community133

Despite the lack of an explicit legal basis in the Cartagena Agreement, the Andean Community soon adopted two landmark decisions aimed at protecting migrant 130

North American Free Trade Agreement between the Government of Canada, the Government of the United Mexican States and the Government of the United States of America, 32 International Legal Materials, (1993), p. 289.

131

Dominican Republic – Central America – United States Free Trade Agreement accessed 25 August 2014.

132

Understanding of 5 August 2004. See GA Flores-Macías, ‘Migration and Free Trade Agreements: Lessons from NAFTA and Perspectives for CAFTA-DR’ in R Cholewinski, E Macdonald and R Perruchoud (eds), International Migration Law (TMC Asser Press 2007) 153.

133

Bolivia, Colombia, Ecuador, and Peru.

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workers and fostering their mobility.134 Together with the Andean Instrument on Social Security,135 the Andean Instrument of Labour Migration (AILM) constitutes the keystone of the Andean approach to human mobility. First adopted in 1977 and amended in the year 2003,136 the AILM establishes the progressive liberalization of movement and residence of dependent workers, which are classifijied as company workers, workers moving on an individual basis, border workers and seasonal workers. Under this regime of mobility, workers are awarded the rights of equal treatment and non-discrimination, protection of the family, afffijiliation, transfer of remittances, etc.137 The objective of the common market for 2005 reinvigorated the effforts towards free movement, and lead to the adoption of several measures that strongly support the objective of easing intraregional mobility. Regarding free movement as a right for Andean nationals and foreign permanent residents, Decision 503 provides for their right of entry in other member as tourists for a renewable period of ninety days on the basis of national identity documents and the already existing Andean Migration Card,138 a uniform travel document destined to facilitate border crossing and to register statistical data.139 Such documents will be recognised for civil and migratory purposes, including judicial and administrative procedures. Additionally, Decision 503 contains an interesting programmatic element, inviting Andean States to harmonize their migration legislation. Aiming at the consolidation of a communitarian identity and at the international visibility of the Andean Community, the

134

On the issue of legal basis for the development of free movement measures in the Andean Community, see JA Quindimil López, ‘La libre circulación de personas en la Comunidad Andina a la luz el estatuto jurídico de la ciudadanía comunitaria andina’ in Juana Goizueta Vértiz, Itziar Gómez Fernández and María Isabel González Pascual (eds.), La libre circulación de personas en los sistemas de integración económica. Modelos comparados (Aranzadi S.a., 2012)

135

Decision 113 (1977) Instrumento andino de seguridad social, amended by Decision 546 (2003).

136 137

Decision 116 (1997) and Decisión 545 (2003). For an analysis, see Guido Mendoza Fantinato, ‘Derecho al libre establecimiento con fines laborales para los ciudadanos comunitarios’ (Secretaría General de la Comunidad Andina) accessed 25 August 2014.

138

Decision 503 (2001) Reconocimiento de documentos nacionales de identificación.

139

Decision 397 (1996), Tarjeta Andina de Migración.

Free Movement of Persons and Regional International Organisations

Andean Passport, and specifijic channels for Andean nationals and residents have been created in airports.140 2.

The Common Market of the South (MERCOSUR)141

Even though the objective of achieving free movement of persons was not a salient element of the Asuncion Treaty – which only referred to it in an indirect way, encompassing it among the “factors of production”142 – the Common Market of the South represents one of the most advanced approaches towards free movement in the American continent. Despite this lack of predesigned pre-eminence of the objective of free movement, the MERCOSUR has made room for free-movement related issues in its institutional apparatus during the three decades of integration,143 which have given place to interesting developments. Even though border controls rest in place, several decisions have introduced elements aimed at fostering mobility, such as separated channels of entry for citizens and permanent residents of the MERCOSUR States,144 the establishment of in-

140 Decisión 504 (2001), Creación del Pasaporte Andino and Decisión 525 (2002) Características técnicas específicas mínimas de nomenclatura y seguridad del Pasaporte Andino. Decisión 526 (2002) Ventanillas de entrada en aeropuertos para nacionales y extranjeros residentes en los Países Miembros. 141

Argentina, Brazil, Paraguay and Uruguay. Venezuela is awaiting the entry into force of its Accession Treaty. Colombia, Chile, Peru and Bolivia are associated States.

142

Tratado de Asunción Art 1.

143

The several ministerial groups and subgroups that have been active have given birth to important developments. On this institutional perspective, see AM Santestevan, ‘Free Movement Regimes in South America: the Experience of the MERCOSUR and the Andean Community’ in R Cholewinski, R Perruchoud and E MacDonald (eds), International Migration Law: Developing Paradigms and Key Challenges (TMC Asser Press 2007) 363–386. See also J Corti Varela, ‘Evolución de la libre circulación de personas en el Mercosur y su impacto en las políticas migratorias nacionales’ in J Goizueta Vértiz, I Gómez Fernández, MI González Pascual (eds), La Libre Circulación de Personas en los Sistemas de Integración Económica: Modelos Comparados Unión Europea, Mercosur y Comunidad Andina de Naciones (forthcoming).

144 Decisión 12/91 sobre la Facilitación para los ciudadanos del Mercosur, CMC Decision No 12/91, I CMC, Brasilia 17/XII/1991; Instalación de canales privilegiados de entrada en aeropuertos para ciudadanos del MERCOSUR, Decisions CMC No 46/00 and 47/00.

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tegrated border posts,145 or the facilitation of transfrontier transit in border areas.146 Physical mobility has further been eased by the Agreement that unifijies the period of stay to be granted to MERCOSUR tourists up to 90 days,147 and by the Agreement on travel documents that establishes the recognition of national identity documents for the transit of MERCOSUR nationals and residents (provided that they are not in need of a visa in the MERCOSUR receiving state).148 The Agreement on Residence of 2002, which due to ratifijication difffijiculties only entered into force in 2009, has been the development that has reshufffled the whole process and that constitutes today the core element of the MERCOSUR system of free movement of persons.149 This innovative instrument sets in motion a very advanced regime which recognizes the rights of entry, exist, free circulation, residence and free access to independent or dependent economic activities for a period of two years, on the sole conditions of presenting valid travel documents and lacking a criminal record. The status of MERCOSUR citizens in the receiving country is further enriched by the proclamation of equality in civil rights, the right of family reunifijication, the right of equal treatment with regard to payment, working conditions and social security, and the preservation of the rights of children and their right to equal treatment in the access to education. At the end of the two-year period of MERCOSUR residence, access to permanent residence is foreseen provided that the individual can certify a clean criminal record and sufffijicient economic means. Most interestingly, the provisions of the agreement are applicable in order to have access to a residence visa if applying from outside the receiving country, but also in order to get directly a residence permit from the immigration services if the person 145

Resolución 43/97, Nómina de puntos de frontera de controles integrados entre los Estados partes del MERCOSUR, MERCOSUR/GMC/RES. No 43/97, XXVIII GMC, Montevideo, 13/ XII/97.

146 Reglamentación del régimen de tránsito vecinal fronterizo, Decisions CMC No 18/99, No 14/00 and No 15/00. 147

Decision CMC No 10/06, Acuerdo para la Concesión de un Plazo de Noventa (90) Días a los Turistas de los Estados Partes del MERCOSUR y Estados Asociados.

148 Decision CMC No 18/08, Acuerdo sobre Documentos de Viaje de los Estados Partes del MERCOSUR y Estados Asociados, as amended by Decision CMC No 14/11. 149

Acuerdo No 13/02, Residencia para Nacionales de los Estados Partes del MERCOSUR and Acuerdo N0 14/02, Residencia para nacionales de los Estados Partes del MERCOSUR, Bolivia y Chile. Perú, Bolivia and Chile have subsequently accessed to the 2002 Agreement. Decision CMC No 28/02 on the accession of Bolivia and Chile; Decision CMC No 01/11 on the accession of Peru; Decision CMC No 21/11 on the accession of Ecuador.

Free Movement of Persons and Regional International Organisations

in question is already present in its territory, notwithstanding the conditions of his fijirst entry and precluding the imposition of sanctions or fijines. This last path to gain legal residency has to be regarded in conjunction with the effforts aimed at eliminating situations of irregularity between Member States through the Agreement simultaneously adopted on the regularization of internal migration,150 that enables the citizens of the Member States to regularize their residence without the need of leaving the territory of the State in which they are present. Moreover, non-negligible additional developments complete the system, such as measures regarding the mutual recognition of university diplomas for academic activities,151 the establishment of gratuity for visas for students and lecturers,152 or the coordination of social security systems. Consular assistance to citizens of other MERCOSUR Member States in third countries where their state of nationality does not have representation is also provided for, resembling one of the rights of EU citizenship.153 In this sense, evolution towards a MERCOSUR citizenship is currently being considered under the Action Plan of 2010.154 Additionally, the measures on liberalisation of the movement of persons have been accompanied by shy evolutions towards a common approach to migration, in particular, to certain issues regarding undocumented migration and trafffijicking.155 The Santiago Declaration establishes the migratory principles endorsed by the MERCOSUR in a bi-directional perspective, inspiring also the attitude of its Member States towards the treatment received by their citizens in third States.156

150

Acuerdo No 12/02 sobre regularización migratoria interna de ciudadanos del MERCOSUR, Bolivia y Chile.

151

Acuerdo de Admisión de Títulos y grados universitarios para el ejercicio de actividades académicas en los Estados partes del MERCOSUR and Implementing Decision CMC No 29/09.

152

Acuerdo sobre gratuidad de visados para estudiantes y docentes de los Estados partes del MERCOSUR, Decision CMC No 21/06.

153

Mecanismo de Protección y Asistencia Consular, Decision CMC 35/00; Documento de

154

Decisión CMC No 64/10, Estatuto de la Ciudadanía del Mercosur – Plan de Acción.

155

Declaración de Montevideo contra la trata de personas en el MERCOSUR y Estados aso-

Viaje Provisorio MERCOSUR, Decision CMC No 38/04.

ciados, 18.11.2005; Declaración de Asunción sobre Tráfico de personas y tráfico ilícito de migrantes, 8.6.2001. Not yet in force, Proyectos de Acuerdos contra el tráfico ilícito de migrantes, Decision CMC No 37/2004. 156

Declaración de Santiago sobre principios migratorios (adopted 17 May 2004).

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Nonetheless, the institutional framework and the features of legal instruments – anchored to a strict intergovernmental approach – strongly modulate the efffectiveness of the acts adopted.157 Indeed, the necessity of national ratifijication in order to incorporate the decisions into national law undermines the dynamism of the process. This has been strongly felt with regard to important measures on free movement of such as the decision on the MERCOSUR-Visa for certain service providers,158 or the visa waiver agreement,159 which have not yet entered into force.160 3.

The CARICOM 161

Already the Treaty of Chaguaramas of 1973 contemplated the removal of restrictions to the establishment and operation of economic enterprises by nationals of Member States and the extension of preferential treatment with regard to the provision of services.162 Nonetheless, it was explicitly declared that these provisions would not in any way impose any obligation regarding the freedom of movement of persons. The issue of free movement of persons was introduced in the integration agenda in 1989, when the Heads of Government projected in the Grand Anse Declaration the conclusion of future arrangements oriented towards the free movement of skilled workers, the elimination of passport requirements and the elimination of the need for work permits for certain categories of professionals. Further, the concept of ‘Hassle-free 157

JAE Vervaele, ‘Mercosur and Regional Integration in South America’ (2005) 54 ICLQ 387.

158

Decision CMC No 16/03.

159

It would have been applicable only to artists, lectures, scientists, sportsmen, journalists or specialized professionals. Decision CMC No 48/00.

160 On the short comings and peculiarities of the MERCOSUR free movement system from the point of view of a comparison with EU law, see Cardesa Salzmann, ‘El contenido jurídico de la libre circulación de personas en el Mercosur: balance y perspectivas’ in J Goizueta Vértiz, I Gómez Fernández and MI González Pascual (eds), La Libre Circulación de Personas en los Sistemas de Integración Económica: Modelos Comparados Unión Europea, Mercosur y Comunidad Andina de Naciones (forthcoming); V Modolo, ‘La movilidad territorial en el Mercado Común Europeo y Mercosureño’ in S Novick (eds), Migraciones y MERCOSUR: una relación inconclusa (Catálogos 2010) 29–49. 161

Antigua and Barbuda, Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Haiti, Jamaica, Montserrat, Saint Lucia, St. Kitts and Nevis, St. Vincent and the Grenadines, Suriname, Trinidad and Tobago.

162

Treaty of Chaguaramas 946 UNTS 18. Annex to the Treaty, The Caribbean Common Market, Chapter V on establishment services and movement of capital.

Free Movement of Persons and Regional International Organisations

Travel’ was introduced by the Independent West Indian Commission in 1992. It has been in this direction where major achievements have been produced to date. In the 29th Meeting of the Conference of Heads of Government in 2008, it was decided to launch the CARIPASS Travel Card, enabling nationals of participant CARICOM States to become part of a voluntary Trusted Traveller Regime to receive a more flexible treatment at immigration gates.163 Since 2005, Member States are progressively introducing a common format for a CARICOM Passport, and some Member States also have established preferential channels for Community nationals at entry border posts. But these developments do not have as legal basis a community agreement or rule, but rather represent unilateral endeavours that give place to considerable dissymmetry in their implementation. The Revised Treaty of 2001,164 which also advances in the achievement of the freedom of establishment and the freedom to provide services following the GATS model, sets the goal of free movement for nationals of the Member States,165 and takes the fijirst step, granting certain categories of skilled community workers the right to seek employment in other Member States upon the basis of a system of accreditation of professional qualifijications and empowering Member States to further advance in the facilitation of movement of skilled persons.166 Provisions for free movement of workers fijind also an important complement in the CARICOM Agreement on Social Security.167 But free movement remains limited to skilled workers, leaving aside most of the CARICOM population.168 Despite the progressiveness of the designed framework, dissimilarities in the interests of participating states with disparate levels of economic development has negatively afffected the evolution of the process.169

163

CARICOM Travel Card Treaty (CARIPASS) (adopted 10 March 2010). The signatory parties are Antigua and Barbuda; Grenada; Haiti; St. Kitts & Nevis; Saint Lucia; Trinidad and Tobago.

164 Revised Treaty of Charuaramas establishing the Caribbean Community including the CARICOM Single Market and Economy (adopted 5 July 2001) 2259 UNTS 293. 165

Revised Treaty Art 45.

166 Revised Treaty Art 46. University graduates, media workers, sportspersons, artists and musicians. 167

CARICOM Agreement on Social Security (adopted 1 March 1996).

168 S Nonnenmacher, ‘Free Movement of Persons in the Caribbean Community’ in R Cholewinski, R Perruchoud and E MacDonald (eds), International Migration Law: Developing Paradigms and Key Challenges (TMC Asser Press 2007) 390. 169 ibid. 397.

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The Central American Integration System (SICA)170

4.

In its current legal framework, the Central American Integration system has not placed free movement among its objectives, being this issue not mentioned in the 1991 Tegucigalpa Protocol amending the Charter of the Organisation of Central American States. The only reference is found in the 1993 Economic Integration Protocol, which enunciates the compromise of Member States to advance towards free movement of workers through the adoption of specifijic policies.171 Notwithstanding this situation, the processes towards mobility and freedom to travel have been important in the region. Since 1990, the Central American Commission of Migration Directors, whose technical secretariat is assumed by the International Organisation for Migration, constitutes the institutional basis for the coordination on immigration matters and its agreements are binding on the national organs that manage migration issues.172 Similarly to the Schengen Area, several Central American States have engaged in closer cooperation under the so-called ‘Central America Four Group’. Guatemala, El Salvador, Honduras and Nicaragua have advanced in the framework of the CA4 group establishing an area of free travel efffective since 2006,173 common security measures on common borders,174 unifijied criteria for the control of borders,175 and a common visa for third country nationals.176 A more comprehensive regional approach towards migration has been attempted

170 171

Belice, Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua and Panama. Protocolo de Guatemala, al Tratado General de Integración Económica Centroamericana, Art 18.

172 173

Reglamento de la Comisión Centroamericana de Migración (OCAM) (2000) Art 22. Declaración Conjunta de los Presidentes del CA-4, San Salvador 1993; Resolución en materia de libre tránsito y facilitación migratoria de personas por la vía aérea en los países del CA-4, San Salvador 1997. Acta de Acuerdos – Reunión de Directores Generales de Migración y Extranjería de los Países Miembros del CA-4, Guatemala 2006.

174

Convenio para el establecimiento de mecanismos de seguridad fronteriza en las fronteras comunes de los países miembros del CA-4.

175

Normas de la Política de libre movilidad de los países del CA-4, Guatemala 2006.

176

Convenio de creación de la visa única centroamericana para la libre movilidad de extranjeros entre las Repúblicas de El Salvador, Guatemala, Honduras y Nicaragua, Tegucigalpa 2005.

Free Movement of Persons and Regional International Organisations

at with the adoption of a programmatic Agreement on the protection and integral development of migrants and their families, which is still awaiting ratifijication.177 5.

Convergence Efforts

The presence of radically diffferent approaches to human mobility in the American continent has prevented the Organisation of American States from taking the lead in the rationalization of regional and sub-regional experiences in the fijield of free movement. In this regard, the major progresses have taken place in the South American sub-continental area. The most relevant development is the interconnectedness between the Andean Community and the MERCOSUR, which is being fostered in the framework of the convergence towards an inter-regional free trade area. Countries of both integration blocks participate jointly in the sub-continental process of the UNASUR, among whose specifijic objectives is the consolidation of a South American identity through the mutual recognition of individual rights with the aim of achieving a South American citizenship and the “cooperation on issues of migration with a holistic approach, based on an unrestricted respect for human and labor rights, for migratory regularization and harmonization of policies”. In this sense, a remarkable achievement has been the Agreement on the exemption from the requirement of the tourist visa of the South American Community of Nations (precursor of UNASUR), which on the basis of the achievements of MERCOSUR abolishes the need for tourist visas, enables the use of national identity documents for border crossing purposes and establishes a uniform period of stay of 90 days.178 Moreover, even though formally outside this framework, it has to be noted that all Andean Community Member States participate in the MERCOSUR Residence Agreement of 2002, with the exception of Colombia. V.

Conclusion

After this schematic presentation of the many diffferent features and approaches we can generally conclude that regional international organisations have emerged 177

Acuerdo de alianza regional entre los países del sistema de la integración Centroamericana para la protección y desarrollo integral del migrante y sus familias, Declaración de la XXXIV Reunión Ordinaria de Presidentes del SICA 29 de junio de 2009.

178

Agreement among Member States of the South American Community of Nations on the exemption from the requirement of the tourist visa and the acceptance of an identity card for entry and transit in their respective territories (adopted 26 November 2006).

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as powerful and promising vehicles for the construction of areas of human mobility with variable intensity. Depending on their nature and objectives, the impact of international integration and cooperation on free movement rights varies strongly. The legal regimes set in motion by the diffferent organisations allocate diffferently their preferences with regard to the elements that encompass a wide conception of free movement: measures regarding free travel, liberalization of labour markets, provision of services and establishment, border cooperation, cooperation in migration issues with regard to third countries, social rights and human rights. Not only the material objectives, but also the legal instruments to achieve them present marked divergences, as do the levels of efffective implementation. There is not a unique approach towards free movement, nor a unique sequence of events: whereas some organisations only engage in border cooperation in order to establish freedom to travel after economic integration has already enabled a certain degree of liberalization of market access, other organisations have made considerable progresses in the sphere of mere physical mobility without addressing labour market access and residence rights. Paradoxically, the apparently more superfluous freedom to travel is currently associated with the adoption of a common passport, and therefore considered as the keystone for the construction of a shared supranational identity. A step further comes with the adoption of a common approach towards extra-regional migration. Even thought the EU has only taken measures in this fijield as a compensatory action to complete the achievement of internal free movement, integration processes in Africa and Latin America where extra-regional emigration is an issue of particular importance, seem to be addressing the issue of human mobility from a more comprehensive point of view. The inclusion of intra-regional free movement objectives also tends, at one point or another, to engage in the common consideration (and even regulation) of extra-regional immigration and emigration. In principle, the institutional umbrella of regional organisations provides for a solid basis upon which to construct free movement rights. At least potentially, international organisations are suitable instruments for providing a comprehensive approach to human mobility, because they can act as catalysers of the diffferent components that are relevant to achieve free movement in all of its complexity, encompassing the perspective of individual rights, and providing for enforcement mechanisms and additional measures to remove obstacles. But despite this promising potential role, regional projects of free movement have encountered important difffijiculties and still remain far from full implementation. Institutional weaknesses have a strong impact in liberalisation achievements. The nature of acts of international organisations, the existence of supranational institutions or the mechanisms designed to safeguard compliance and enforcement are undoubtedly elements that

Free Movement of Persons and Regional International Organisations

determine to a great extent the degree of success. Diffferent experiences show that even the most comprehensive and advance systems are still be vulnerable to economic downturn or security crisis that are usually amplifijied asymmetries among Member States. Granted, economic and political difffijiculties account for much of the diffferences in the level of implementation of mobility related projects. But whatever the efffects of the diffferent political choices and factual circumstances might be, the resilience of free movement projects is in itself meaningful. From a mere quantitative point of view, the proliferation of free movement regimes within regional organisations leads to an observation that is clearly obvious but not for this reason has to be underestimated: there is a broad and shared ambition to create free movement conditions in organisations that encompass a political or integrationist component even when material, political or economic conditions are adverse. This generalization shows an irresistible force to couple integration with human mobility, and unveils the aspiration of regional organisations to establish bonds with individuals through the rights which most tangibly arise out of international integration and cooperation: freedom to travel, access to economic activities, establishment, and residence. The capacity to bring together these components and the cultural and historical bonds shared by members of regional processes, give place to an institutional drive towards projects of supranational citizenship, even if they mostly remain in rhetoric. One of the most interesting trends that are discernible in our days is the trend towards coordination and interaction between diffferent and overlapping regional processes. Several coordination and convergence experiences are already being developed, and more are to be expected in Africa and Latin America, where regional integration and cooperation processes share common aspirations towards continental projects, under the auspices of the UNASUR or the African Union, or on the basis of interaction among diffferent organisations. The interaction of diffferent free movement regimes has also occurred in Europe, where situations of overlapping membership and converging objectives were also present with regard to the Benelux, the Nordic Council, the EFTA and the Council of Europe. The European experience shows that overlapping membership is not necessarily a negative element in order to achieve free movement. The case of the Benelux with regard to the EU demonstrates that sub-regional experiences can pioneer bigger integration processes and serve as a laboratory for integration, essaying innovative solutions that, if successful, can be extended to the wider organisation. Moreover, in the European case, coordination between diffferent integration projects has progressively taken place due to the clearly dominant role of the EU. Indeed, the coherence between the diffferent sub-regional processes has been

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ensured by the dominant position of the European Union, that has served as the backbone of the European area of free movement of persons, sometimes absorbing pre-existing regimes, and other times, setting the standard for the relationship with partner organisations. On the other hand, the Council of Europe provides for basic standard for the protection of human rights and freedoms and basic social guarantees, and in this regard, the European Union declares its respect for this standard, which also influences its actions in the fijield of free movement and migration. Nonetheless, with regard to other instruments (such as the European Convention on Mobility) the European Union recovers its leading role, forcing Member States to suspend their obligations towards non EU Council of Europe States in order to comply with the EU common immigration policy. This experience shows that when parallel processes are in place, it is necessary that organisations remain attentive to the parallel evolutions of sister organisations, so they are able to respond and adjust to developments and challenges, redirecting their effforts to the issues where they can provide for an added value.

12

The Asylum Seeker’s Right to Free Legal Assistance and/or Representation in EU Law Elspeth Guild*

I.

Introduction

Legal assistance for asylum seekers afffects multiple aspects of national asylum systems and has many consequences. For national judges, legal assistance and representation which permits the representation of asylum seekers who are appealing against refusal of their asylum application (appellants) or whose matters come before the national judge for a fijirst instance decision, transforms the proceedings. Good legal representation of asylum seekers results in better prepared and documented applications. Fewer applications are rejected on formal grounds related to the inadequacy of the documentation, where the application is refused on substantive grounds, if legal representatives have been involved in the preparation of claims. In such cases, the outstanding issues between the authorities and the applicants are usually more limited and better defijined. As every judge is aware, un-represented appellants present very substantial challenges to procedural rules (of which they are usually unaware) and require all those participating in the appeal to take on obligations and duties which are diffferent from those which apply when counsel is representing the individual.1 The capacity to deliver a fair procedure and outcome, which is at the core of every judge’s judicial duties, is enhanced when competent counsel is in court and both parties to the appeal are represented. Compensating for the inequality of arms which results from the lack of legal representation for one of the parties presents *

Elspeth Guild is Jean Monnet Professor ad personam of European Immigration Law at the Radboud University Nijmegen.

1

In a number of jurisdictions there is a prohibition on unrepresented appellants.

Sir Richard Plender (ed.), Issues in International Migration Law Copyright 2015 Koninklijke Brill NV. Printed in The Netherlands. ISBN 978-90-04-20851-3 pp. 261-284

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most unwelcome issues and problems for judges. Free legal assistance and representation for those appellants who have insufffijicient resources to pay themselves does not change the arguments which mitigate in favour of legal assistance and/ or representation. However, it does raise questions about the allocation of state resources which, while not of primary concern to judges, often trouble administrative authorities. There are fijive main stages in the life of an asylum application where legal assistance and/or representation (whether free or not) is relevant: (i) in the preparation and submission of the asylum claim, and in the event of rejection of the claim; (ii) in the preparation and submission of an appeal procedure; (iii) in the representation of the appellant at the appeal hearing (if there is one) or submissions for appeals which do not include an oral hearing, and in the event of a negative court decision; (iv) in advising the appellant after the appeal’s determination and on any further appeal avenues; and (v) in assistance regarding any expulsion decision which may be taken by the authorities. Each of these stages may be broken down into more constituent parts but for my purposes these sufffijice. In many jurisdictions around the world, there are arguments about the necessity and role of legal assistance and representation at each of the stages. Depending on the procedures applicable, these arguments may have greater or lesser force depending on what is at stake at each stage. These are not issues exclusively of interest in developed asylum procedure systems. The Southern Refugee Legal Aid Network has identifijied similar problems in respect of system for the delivery of international protection in the Global South.2 Where states have delegated to UNHCR asylum determination, many of the questions which arise in this paper are even more pressing. In this article I will examine the questions and issues which surround free legal assistance and/or representation for asylum seekers in the European Union (EU). A number of legal developments make this presentation possible. First, the EU, as part of the development of a Common European Asylum System (CEAS) which commenced in 1999, has a body of asylum law now which covers most substantive and procedural aspects of an asylum claims (see Annex 1). The transposition dates for the incorporation of all the EU asylum measures (except the last one) have passed. All twenty-seven Member States of the EU are obliged to have ensured that their national law is compatible with the EU measures. The interpretation of the EU asy

2

See newsletters and activity updates of the Southern Refugee Legal Aid Network at accessed 25 August 2014.

The Asylum Seeker’s Right to Free Legal Assistance and/or Representation in EU Law

lum measures rests not only with the national judge who has jurisdiction for asylum appeals. That judge also has the possibility to ask the Court of Justice of the European Union (Court of Justice) for a defijinitive interpretation of any part of the EU measures where this is necessary for him or her to reach a fijinal decision on the case before him or her. Further, the EU Member States are all bound by the European Convention on Human Rights and the jurisdiction of the European Court of Human Rights which provide an extra-EU human rights framework for asylum procedures. As a number of previous speakers have mentioned, the Court of Justice has already been asked, on a number of occasions so far, to provide defijinitive interpretations of various aspects of the CEAS and a number of issues are pending before it (see Annex 2). As yet, no question has been asked of the Court of Justice about free legal assistance and representation, though in light of the centrality which this has for many actors in the asylum system there may well be the need for clarifijication before long. In this article I will examine the following: (i) the EU Charter of Fundamental Rights and the legal framework within which the CEAS operates; (ii) the sources of a free legal assistance and/or representation obligation in the CEAS; (iii) the state of implementation of the free legal assistance obligation among the Member States; (iv) the issues identifijied by UNHCR regarding free legal assistance in the CEAS; (v) the research of the EU’s Fundamental Rights Agency on legal assistance and/or representation in the asylum system; (vi) the questions raised by non-governmental organisations regarding free legal assistance in the CEAS; (vii) the European Court of Human Rights and free legal assistance for asylum seekers; and (viii) the Court of Justice on free legal assistance as a Charter right. II.

The EU Charter of Fundamental Rights and the Legal Framework within Which the CEAS Operates

On 1 December 2009, the Lisbon Treaty came into force. It introduced into EU law Article 6(1) Treaty on European Union which provides that the EU Charter of Fundamental Rights will have the same legal value as the Treaties themselves.3 The background of the Charter is somewhat checkered. It was solemnly declared by the European Parliament, the Council and the Commission on 18 December 2000 at the Nice Summit. However, as a result of disagreement among the Member States the 3

The accessibility of the Charter for judges in Poland and the UK is limited by TEU Protocol (No 30) on the application of the Charter of Fundamental Rights of the European Union to Poland and to the UK.

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Charter was not, at that time, given legally binding efffect within the EU order. It was subsequently introduced as a ‘bill of rights’ into the draft Constitutional Treaty which was proposed to the Member States for ratifijication in 2004 but that treaty proposal failed to garner sufffijicient popular support in two Member States (France and the Netherlands). Now, the Charter is binding and has the same overarching legal position in the EU hierarchy of norms as the EU treaties themselves. Article 6(1) TEU which creates this legal efffect also provides that the Charter cannot extend, in any way the competences of the EU and further states that the provisions of the Charter shall be interpreted in accordance with the general provisions of the Charter contained in its Chapter VII and with due regard to the explanations referred to in the Charter that set out the sources of the provisions contained in it. 4 Article 6(3) TEU provides that fundamental rights as guaranteed by the European Convention on Human Rights (ECHR) and as they result from the constitutional traditions of the Member States constitute general principles of Union law. In this way the Charter is fijirmly tied to the Council of Europe’s ECHR, thus limiting the possibility for divergence detrimental to individual rights between the two regimes of fundamental rights and to the Member States’ constitutions. The transformation of the Charter from a document with persuasive authority regarding the implementation of fundamental rights for individuals in the European Union to a binding one is key. It has often been noted that the EU has no other provision which guarantees the fundamental rights of individuals. Indeed, the EU, founded as it was for the purpose of economic convergence only arrived fairly late to the issue of fundamental rights.5 However one of the key challenges has been how to make the Charter a living document for those whose lives are touched by EU law.6 The starting point for this examination of legal assistance and representation is Article 18 Charter: “The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty on European 4

Explanations relating to the Charter of Fundamental Rights (2007/C 303/02) [2007] OJ C303/17.

5

From a huge literature on human rights as general principles of EU law, see B de Witte, ‘Past and Future Role of the European Court of Justice in the Protection of Human Rights’ in P Alston (ed) The EU and Human Rights (OUP, 1999); Takis Tridimas, The General Principles of EU Law (2nd ed, OUP 2006), with further references.

6

On account of protocols to the TEU, both Poland and the UK have limited the power of their courts to interpret provisions of the Charter vis-à-vis national law.

The Asylum Seeker’s Right to Free Legal Assistance and/or Representation in EU Law

Union and the Treaty on the Functioning of the European Union (hereinafter referred to as ‘the Treaties’).” What is important to this discussion is the fact that the Charter sets out a ‘right to asylum’, a form of words which recalls the Universal Declaration of Human Rights’ right to seek asylum7 though does not repeat it. In EU law (and ECHR law), where a right exists procedural obligations regarding the protection of that right are inherent. The right to an efffective remedy contained in Article 47 Charter comes into play. The explanations to the Charter on Article 18 state: “The text of the article has been based on TEC [Treaty on the European Community] Article 63, now replaced by Article 78 of the Treaty on the Functioning of the European Union, which requires the Union to respect the Geneva Convention on refugees (...).”8 Article 47 Charter states: Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an efffective remedy before a tribunal in compliance with the conditions laid down in this article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufffijicient resources in so far as such aid is necessary to ensure efffective access to justice.

Assuming Article 18 must be taken seriously and means what is says, that there is a right to asylum in EU law, what do the explanations add for interpretative purposes? I would venture to suggest not a lot. The Charter has the same legal value as Article 78 TFEU. Asylum is clearly within the scope of EU law and the formulation of a right to asylum in the Charter is consistent with Article 78 TFEU as a central element in developing a common asylum policy. Thus the clear acknowledgement of a right to asylum in the Charter requires the provision of full procedural guarantees which are necessary for the protection of any and all of the rights in the Charter. This brings the right to asylum within the scope of Article 47 Charter. 7

UDHR Art 14(1): “Everyone has the right to seek and to enjoy in other countries asylum from persecution.”

8

TFEU Art 78 (ex Arts 63(1) and (2), and 64(2) TEC): 1.

The Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva

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The explanations to Article 47 Charter state ‘the fijirst paragraph is based on Article 13 of the ECHR’, which sets forth: Everyone whose rights and freedoms as set forth in this Convention are violated shall have an efffective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an offfijicial capacity. However, in Union law the protection is more extensive since it guarantees the right to an efffective remedy before a court (...). In Union law, the right to a fair hearing is not confijined to disputes relating the civil law rights and obligations. That is one of the consequences of the fact that the Union is a community based on the rule of law as stated by the Court in Case 294/83, ‘Les Verts’ v European Parliament (judgment of 23 April 1986 [1986] ECR 1339). Nevertheless, in all respects other than their scope, the Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties. 2.

For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures for a common European asylum system comprising: (a)

a uniform status of asylum for nationals of third countries, valid throughout the Union;

(b)

a uniform status of subsidiary protection for nationals of third countries who, without obtaining European asylum, are in need of international protection;

(c)

a common system of temporary protection for displaced persons in the event of a massive inflow;

(d)

common procedures for the granting and withdrawing of uniform asylum or subsidiary protection status;

(e)

criteria and mechanisms for determining which Member State is responsible for considering an application for asylum or subsidiary protection;

(f)

standards concerning the conditions for the reception of applicants for asylum or subsidiary protection;

(g)

partnership and cooperation with third countries for the purpose of managing inflows of people applying for asylum or subsidiary or temporary protection.”

3.

In the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the Member State(s) concerned. It shall act after consulting the European Parliament.

The Asylum Seeker’s Right to Free Legal Assistance and/or Representation in EU Law guarantees affforded by the ECHR apply in a similar way to the Union. (...) With regard to the third paragraph, it should be noted that in accordance with the case-law of the European Court of Human Rights, provision should be made for legal aid where the absence of such aid would make it impossible to ensure an efffective remedy (ECHR judgment of 9 October 1979, Airey, Series A, Volume 32, p 11). There is also a system of legal assistance for cases before the Court of Justice of the European Union.

The important point regarding Article 47 Charter in this context, is fijirst, although it mirrors Article 13 ECHR, its scope is wider. Further, the Member States agreed in the explanations (adopted by unanimity) that the jurisprudence of the ECtHR on legal aid is applicable to Article 47 Charter. The explanations clarify that the right to an efffective remedy under the Charter applies to all rights contained in it. Accordingly, the provision of legal aid where necessary to ensure efffective access to justice applies to the right to asylum set out in Article 18 Charter. As the Charter has the same legal status as the Treaties themselves, its legal authority is the same as Article 78 TFEU which provides the power to adopt legislation on asylum. Therefore, as regards the secondary legislation adopted under Article 78 TFEU (see Annex 1) the Charter takes priority in accordance with the EU doctrine of hierarchy of norms. No provision of EU secondary legislation can interfere with a Treaty right (which includes the Charter). Thus when having regard to the CEAS, as it is secondary legislation, it is subject to and must conform with (or be interpreted in conformity with) the Charter. The right to free legal assistance and representation for asylum seekers in the EU depends on the extent to which this necessary to ensure access to an efffective remedy. I will return to this point at the end of this contribution in light of the Court of Justice’s judgment of 22 December 2010 on the provision of legal aid as a component of access to justice.9 III.

The Sources of a Free Legal Assistance and/or Representation Obligation in the CEAS

Between 1999 and 2014, the EU has adopted 17 measures as part of the CEAS (see Annex 1). For my purposes, it is the Asylum Procedures Directive (Directive 2005/85) and the recast Asylum Procedures Directive (Directive 2013/32) which are the most important as they contain the main provisions on legal assistance and representa9

Case C-279/09 DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH v Bundesrepublik Deutschland [2010] ECR I-13849.

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tion. Directive 2005/85was adopted on 1 December 2005. It had to be transposed into national law by 1 December 2007 except for the legal assistance provision (Article 15) where the Member States were given one further year, until 1 December 2008. Denmark does not participate in the Directive on account of its protocol TEU; Ireland and the United Kingdom also had the option of remaining outside the CEAS but opted into the Directive. Directive 2013/32 must be transposed into national law by July 2015. Again, Denmark does not participate. Ireland and the United Kingdom have opted out of this Directive, which means that Directive 2005/85 continues to apply to Ireland and the United Kingdom.10 The Directive sets out the minimum standards which all Member States (except Denmark) must apply to asylum procedures. The Member States remain free to apply higher standards (i.e. standards more favourable to the asylum seeker) but national standards must not fall below those set out in the Directive. The current negotiations are intended to lead to common standards rather than minimum ones. This raises new issues as regards the compatibility of those standards with the Member States’ human rights obligations and the Charter. As regards interpretation of such minimum standards, the European Parliament challenged before the Court of Justice a directive on family reunifijication on the basis that the minimum standards there fell below those to which the Member States were bound by reasons of the UN Convention on the Rights of the Child 1990 and the ECHR.11 In a rather roundabout judgment, the Court of Justice found that it was for the national judge to determine whether national implementation of a directive containing only minimum standards was compatible with that Member State’s human rights obligations. Such approach is not possible where standards are common. Articles 15(1) and (2) of Directive 2005/85 (the Directive) sets the general rule for the provision of legal assistance and/or representation against which the subsequent subsections provide exceptions. In accordance with the EU rules of interpretation, this means that the principle takes priority over the exceptions which must be interpreted restrictively.12 Article 15(2) states: “Member States shall allow applicants for

10

See Directive 2013/32 [2013] OJ L180/60, Preamble, paras. 58 and 59; Art. 53.

11

Case C-540/03 European Parliament v Council of the European Union [2006] ECR I-05769, which concerns Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification [2003] OJ L251/12.

12

Case 41/74 Yvonne van Duyn v Home Office [1974] ECR 1337.

The Asylum Seeker’s Right to Free Legal Assistance and/or Representation in EU Law

asylum the opportunity, at their own cost, to consult in an efffective manner a legal adviser or other counsellor, admitted or permitted as such under national law, on matters relating to their asylum applications.” Article 15(2) requires the state ensure free legal assistance and/or representation to be granted on request in the event of a negative decision by the determining authority.13 The right to legal assistance is very wide, clearly covering all aspects of an asylum claim. However, Article 15(1) does not obliged Member States to pay for this, only to permit provision. Article 15(2) requires Member States to provide free legal assistance and/or representation where the application is refused. There are four limitations which can be applied by Member States (though they are not obliged to do so) to the provision of free legal assistance and/or representation: (i) a limitation to procedures before a court or tribunal (as provided elsewhere in the Directive) and not for any onward appeals or reviews provided under national law including re-hearings; (ii) availability only to those who lack sufffijicient resources; (iii) Member States can designate under national law the legal advisers or other counsellors to whom the right is applicable; and (iv) free legal assistance or representation can be limited on a merits test (i.e. is the appeal likely to succeed).14 However, in applying any or all of the possible limitations Member States must ensure that legal assistance and/or representation is not arbitrarily restricted (Article 15(3)). National rules for fijiling and processing legal aid requests are to be determined by national law (Article 15(4)). Member States are also permitted two further mechanisms of limitation by Article 15(5):(i) monetary and/or time-limits on the provision of free legal assistance and/or representation may be applied so long as they do not arbitrarily restrict access to legal assistance and/or representation; and

13

“In the event of a negative decision by a determining authority, Member States shall ensure that free legal assistance and/or representation be granted on request, subject to the provisions of paragraph 3.”

14

“Member States may provide in their national legislation that free legal assistance and/or representation is granted: (a) only for procedures before a court or tribunal in accordance with Chapter V and not for any onward appeals or reviews provided for under national law, including a rehearing of an appeal following an onward appeal or review; and/or (b) only to those who lack sufficient resources; and/or (c) only to legal advisers or other counsellors specifically designated by national law to assist and/or represent applicants for asylum; and/or (d) only if the appeal or review is likely to succeed. Member States shall ensure that legal assistance and/or representation granted under point (d) is not arbitrarily restricted.”

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(ii) treatment of asylum applicants shall not be more favourable than that generally accorded to nationals as regards fees and other costs.15 Finally, Article 15(6) provides that Member States may demand reimbursement of any expenses if the applicant’s fijinancial situation improves considerably or the application was based on false information. Article 16 deals with the scope of legal assistance, which falls outside my examination here. A variety of issues arise regarding the relationship of the right to legal assistance and/or representation in Article 15(1) and (2) and the limitations which are permitted. One of the key issues for judges in jurisdictions where the limitations are used is the extent to which those limitations result in an arbitrary restriction of the right (prohibited under Article 15(3) last indent) or Article 47 Charter. However, there is also a more fundamental issue at stake: is Article 15 in its entirely consistent with Articles 18 and 47 Charter? If an asylum seeker is entitled to legal assistance and/or representation though all the states of the asylum procedure if he or she has the money to pay for it, is it arbitrary to refuse such assistance to those who cannot pay? The core question is whether legal assistance at all stages of the asylum procedure is necessary to give full efffect to the right to asylum. The practices of the Member States may be helpful here. Directive 2013/32 makes a number of signifijicant changes to the provisions on legal assistance and representation. First, Article 19 requires Member States to grant ‘legal and procedural information’ free of charge to all asylum seekers on request, at fijirst instance. While this is an important step towards improving the situation for asylum seekers it fall short of full free legal advice and representation at fijirst instance as is made clear by Article 20 which makes this optional for the Member States. However, Member States must, according to Article 22 allow applicants to consult a lawyer at their own cost at all stages of the process. Regarding the content of ‘free legal and procedural information’ at fijirst instance, this must include at minimum, according to Article 21(1), information on the procedure in light of the applicant’s particular circumstances, and additional information on how to challenge a negative decision and rejection on appeal. Both the Commission and the European Parliament had proposed more far reaching measures but these were not accepted by the Council. 15

“Member States may also: (a) impose monetary and/or time-limits on the provision of free legal assistance and/or representation, provided that such limits do not arbitrarily restrict access to legal assistance and/or representation; (b) provide that, as regards fees and other costs, the treatment of applicants shall not be more favourable than the treatment generally accorded to their nationals in matters pertaining to legal assistance.”

The Asylum Seeker’s Right to Free Legal Assistance and/or Representation in EU Law

Free legal assistance and representation have to be provided (on request) at appeal stages which means at the least, the preparation of procedural documents for the appeal and representation during any appeal hearing before a court. But, according to Article 20(3) Member States may refuse to provide free legal aid if the court considers that there is ‘no tangible prospect of success’. At least the new wording makes it clear that it is for the court itself to determine whether there is a tangible prospect of success for this purpose rather than the administration against whose decision the appeal has been lodged. Further the applicant must be able to challenge the refusal to grant free legal assistance and representation and the court must ensure that the applicant’s access to justice is not hindered. Further, the recast Directive 2013/32 removes some of the conditions on access to free legal assistance and representation. Nonetheless, Articles 21(2) and 41(2)(c) contain new rules that Member States are not required to provide free legal assistance to an appellant who is no longer present on the territory or after removal in a non-suspensive appeal procedure. Providers of free legal assistance and representation under Directive 2013/32 may now include non-governmental organizations where national law so permits (Article 22(2)). Yet, services may also be delivered by representatives of the authorities or ‘specialised’ state service. Article 21 also allows states to limit free legal assistance to those without funds and to demand reimbursement if the applicant’s fijinancial situation improves. The scope of legal assistance and representation extends, under Article 23(1) to legal advisors having access to information in the fijiles on the basis of which the decision was made which is more generous than was previously the case. But, where the case raises issues f national security limitations can be placed on access by legal advisors. In the next section, I will consider the available information on how the Member States have applied the legal aid requirements of Directive 2005/85. As the transposition date for Directive 2013/32 has not yet passed there is not, at the time of writing, a clear view of what changes will be made at the national level or what exceptions the Member States will make use of. IV.

The State of Implementation of the Free Legal Assistance Obligation among the Member States

Article 42 of the Directive required the European Commission to report to the European Parliament and the Council on the application of the Directive in the Member States by 1 December 2009. As a result of all sorts of problems, the

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Commission only submitted its report on 8 September 2010.16 After the end of the transposition period (1 December 2008 for the legal assistance provision) the Commission was obliged to send letters of formal notice regarding the failure to transpose the Directive to 17 Member States. This did have the good efffect of speeding up some of the lagging Member States in their transposition duties. When the Commission fijinally reported in 2010 only two Member States had still not succeeded in transposing the Directive (Belgium and Ireland). The Commission notes that over the period 1 January 2008 and 31 December 2009, there were 492.995 asylum applications registered in the 26 Member States bound by the Directive; 444.165 decisions made and 125,785 appeal decisions reached (see annex to the Commission’s Report). This is not a particularly overwhelming number of appeal decisions considering the size of the EU. As regards the implementation of Article 15, the Commission notes that in general the right to consult a legal advisor or counsellor is formally recognised across the EU. However, there are diffferences among the Member States regarding the provision of free legal assistance. Twelve Member States make such assistance available only at the stage of an appeal.17 Fourteen Member States grant either legal aid or free legal advice in the fijirst instance procedures.18 In Austria and the Czech Republic this is in the form of free legal advice rather than legal aid per se (Report 5.1.5). Most Member States grant legal aid for both fijirst instance appeals and onward appeals irrespective of the appeal stage. However, Austria and Cyprus make legal aid for representation available only in proceedings before higher courts. Nine Member States do not apply a merits test to the grant of legal aid.19 Other Member State do so but there is very substantial variation among the Member States regarding how this is applied, for what appeal stages and which authorities are in charge. Most Member States apply a resources test to the availability of free legal assistance and/or representation, however, this is not the case in Belgium, the Czech Republic or Romania. 16

Commission, ‘Report from the Commission to the European Parliament and the Council on the application of directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in member states for granting and withdrawing refugee status’ COM (2010) 465 final.

17

Cyprus, Estonia, Greece, France, Germany, Italy, Latvia, Malta, Poland, Romania, Slovakia and Slovenia.

18

Austria, Belgium, the Czech Republic, Spain, Bulgaria, Finland, Hungary, Ireland, the Netherlands, Lithuania, Luxembourg, Sweden, Portugal and the UK.

19

Belgium, Bulgaria, the Czech Republic, Finland, Hungary, Lithuania, Romania, Slovenia and Sweden.

The Asylum Seeker’s Right to Free Legal Assistance and/or Representation in EU Law

Among the interesting aspects of this information regarding transposition by the Member States is that it is by no means evident that the richer Member States are more generous than those with lower GDPs. Indeed, the most generous provision of legal assistance and representation for asylum seekers is often in 2004 and 2007 Member States. The Commission does not comment in its report on any question regarding the relationship of the Directive and its implementation by the Member States with the Charter. Regarding the question of free legal assistance throughout the asylum procedure, more than half the Member States have such provision even though not required by the Directive to do so. This would appear to indicate that these Member States consider such provision of free legal assistance necessary to the conduct of an asylum claim. V.

The Issues Identified by UNHCR Regarding Free Legal Assistance in the CEAS

UNHCR has followed the development of the CEAS closely since its inception. In March 2010 it published a report entitled Improving Asylum Procedures: Comparative Analysis and Recommendations for Law and Practice.20 UNHCR notes that it welcomed the Directive on its adoption by the EU but at that time expressed concerns that some of the provisions might lead to breaches of international refugee law if implemented at the level of the minimum standards permitted by the Directive. It noted that many commentators were concerned that the wide margin of discretion, exceptions and qualifijications of the Directive might lead to divergence contrary to the objective of the CEAS. UNHCR has guidance from its Executive Committee regarding the importance of fair and efffijicient asylum procedures, including regarding the role of legal assistance. The Executive Committee adopted Conclusion 8 which identifijies the basic requirements for asylum procedures including a fair hearing with ‘a full interview and examination of the asylum claim by a specialized authority, and appropriate legal assistance’. In UNHCR’s Global Consultations 2001, it confijirmed that among the basis guiding principles for efffective and fair asylum procedures is access to legal counsel at all stages of the procedure including free legal aid where that is available.21 20

UNHCR, Improving Asylum Procedures: Comparative Analysis and Recommendations for Law and Practice – Key Findings and Recommendations (UNHCR 2010).

21

UNHCR, ‘Global Consultations on International Protection/Third Track: Asylum Processes (Fair and Efficient Asylum Procedures’ (2001) UN Doc EC/GC/01/12.

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UNHCR undertook the comparative analysis of key provisions of the Directive in a selection of Member States in its supervisory role under Article 35 of the Refugee Convention.22 Article 15 was among the provisions examined in the study. From the perspective of UNHCR, legal assistance and representation are an intrinsic part of access to an efffective remedy. Its concern is not only whether there is a remedy in legal terms but also in practice. Thus the study examines in depth the existence or not of impediments which may combine to render a right of appeal inefffective in practice. According to the UNHCR research, in some Member States, lengthy processes for approving the grant of legal assistance could negate the usefulness of legal aid schemes in appeal processes with short deadlines. The research revealed that in some contexts applicants faced procedures or requirements that were difffijicult or impossible to fulfijil in practice. The most common concerns UNHCR received from experts in the countries considered were: (i) unduly complicated legal aid systems lacking accommodation for asylum applicants and thus inaccessible;23 (ii) fijinancial remuneration provided by legal aid schemes insufffijicient to cover legal adviser’s costs;24 (iii) shortage or lack of legal advisors with necessary knowledge and competence; (iv) particular problems relating to applicants who are detained and subject to accelerated procedures with shortened time limits.25 In the opinion of UNHCR, for a remedy to be efffective in practice, ‘it is essential that free legal assistance is available to appellants at all stages of the appeal procedure, including for assistance with the submission of grounds of appeal, and all other necessary preparation prior to the appeal hearing’.26 UNHCR particularly noted that general publicly-funded legal assistance schemes need to cater adequately for the particular needs and circumstances of international protection claimants. Decisions need to be taken promptly specifijically to ensure that time limits which applicants are subject to regarding submitting appeals are not exceeded. Special concern exists regarding applicants who are in detention. 22

Belgium, the Czech Republic, France, Germany, Greece, Italy, the Netherlands, Slovenia, Spain, Finland and the UK.

23

Time limits in Bulgaria were cited here as an example; in Italy variations among Bar Councils to which certain powers are allocated was cited. The complexity of Spanish forms to seek legal air were referred to. The application of the merits test in the UK was also subject to adverse comment.

24

Problems relating to reimbursement of advisers’ costs in France were mentioned.

25

Here the Netherlands was cited.

26

Supra n. 198 at p. 87.

The Asylum Seeker’s Right to Free Legal Assistance and/or Representation in EU Law

For my purposes, there is a certain timidity in the UNHCR report regarding the scope of the free legal assistance requirement. It is not clear that UNHCR considers this an inherent part of a fair procedure throughout the whole process. UNHCR is unambiguous in its opinion that such free legal assistance and/or representation is necessary at appeal stages. In terms of the practices examined and criticized by UNHCR, many of them would be resolved if free legal assistance was granted as a matter of course as soon as an individual sought to make an asylum claim. Undoubtedly this would assist to encourage legal advisers to gain the specialist knowledge needed. Detained asylum seekers in truncated procedures remain the most difffijicult group to reach. The extensive criticism which multiple actors include the UN Committee against Torture, the UN Special Rapporteur against Arbitrary Detention, the Council of Europe’s Commissioner of Human Rights and the ECtHR regarding the detention of asylum seekers in various Member States needs to be taken very seriously by national judges. VI.

Research of the Fundamental Rights Agency on Legal Assistance in EU Asylum Systems

The Fundamental Rights Agency is an EU agency established in 2007 as an advisory body charged to provide assistance and independent expertise relating to fundamental rights, in the domain of Union law. According to the Agency, its’ activities serve to promote fundamental rights and to support the EU institutions and Member States in raising the level of protection for everyone in the European Union. The Agency collects data on fundamental rights, conducts research and analysis, provides independent advice to policy-makers, networks with human rights stakeholders and develops communication activities to disseminate the results of its work and to raise awareness of fundamental rights.27 In September 2010 it published two thematic reports on the CEAS as seen from the perspective of asylum seekers themselves.28 Both reports relate primarily to Articles 18 (right to asylum) and 19 (protection in the event of removal, expulsion or extradition) Charter. In the report on the duty to inform applicants about asylum procedures, the FRA noted that according to its research about half the Member 27

Council Regulation (EC) 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights [2007] OJ L53.

28

European Union Agency for Fundamental Rights, The Duty to Inform Applicants about Asylum Procedures: The Asylum-seeker Perspective (FRA 2010); European Union Agency for Fundamental Rights, Access to Effective Remedies: The Asylum-seeker Perspective (FRA 2010).

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States have arrangements with non-governmental organisations to provide information on asylum procedures.29 However, the FRA states that in most cases, the information is provided as part of broader projects in the fijield of legal and social counselling. It found that information about non-governmental organisations providing legal counselling was not systematically provided across the EU.30 In the second report on access to efffective remedies, the FRA states that many asylum seekers complained about the paucity of information they received from the authorities on how to access legal assistance, particularly after receiving a negative decision. In half the Member States the FRA found that none of the asylum seekers interviewed had received information on where to fijind legal assistance from the authorities after the rejection of their claim. Most asylum seekers received information from sources other than the authorities. The FRA noted that in Belgium and Luxembourg, most asylum seekers interviewed already had a lawyer during the asylum procedure so where there was a refusal of the claim they did not need to search for one. In most Member States applicants only started to search for a lawyer after refusal of their claim. The FRA was advised that only about half the Member States have leaflets or other information on where to access legal advice which is available to asylum seekers.31 In the FRA’s opinion, information on where to fijind legal assistance should be provided at the beginning of the asylum procedure. Negative decisions should be accompanied by information on where to fijind legal assistance, including contact details of lawyers providing free legal assistance, in a language the asylum seeker understands. According to the FRA, the majority of the asylum seekers included in their study who had managed to appeal against the refusal of asylum had done so with the assistance of a legal advisor. However, two obstacles to lodging an appeal are highlighted – the limited availability of free legal assistance and time pressure regarding deadlines in the appeals systems. In only four Member States the FRA found a number of asylum seekers had little or no help from lawyers in submitting their

29

Including: Austria, Belgium, Bulgaria, Cyprus, the Czech Republic, Finland, France, Greece, Italy, the Netherlands, Romania, Slovakia, Slovenia and the UK. In some of these countries such activities are funded via the European Refugee Fund.

30

The FRA notes that in Poland asylum seekers reported lack of information, including regarding NGOs providing legal assistance.

31

According to the FRA those Member States which do have such information leaflets include Austria, Belgium, the Czech Republic, Denmark, France, Hungary, Ireland, Lithuania, the Netherlands, Poland, Slovenia and the UK.

The Asylum Seeker’s Right to Free Legal Assistance and/or Representation in EU Law

appeals.32 In some countries free legal assistance is difffijicult to access in rural or remote areas where asylum seekers are hosted.33 Further, in countries where there are legal advisors available, those advisors may refuse to assist all applicants leaving those excluded from legal assistance frustrated.34 In one Member State, the removal of refused asylum seekers immediately on refusal from reception centres to detention centres housing only irregular migrants meant accessing free legal advice in order to submit an appeal against the decision was more difffijicult.35 The FRA Report fijinishes with three tables of statistics on recognition rates of asylum seekers from the same countries in diffferent EU Member States. The data used is from the EU’s statistical agency, EUROSTAT and relates to decisions taken in 2009. The problem is that the CEAS is not delivering common outcomes. As long as Afghans who apply for international protection have a 100 percent recognition rate in some Member States (e.g. the Czech Republic, Lithuania, Poland and Slovenia) and a 0 percent recognition rate is others (e.g. Cyprus and Latvia) there is a fundamental problem with a system which calls itself common. This problem of divergence is not limited to initial decisions but is also apparent in appeal decisions from diffferent Member States.36 It is clear from the FRA’s research that free legal assistance at all stages of the asylum procedure is an important component of a system of fair and efffijicient asylum procedures. From the perspective of the asylum seeker, legal assistance at all stages is considered critical to the delivery of the right to asylum. VII.

The Questions Raised by Non-Governmental Organisations Regarding Free Legal Assistance in the CEAS

The European Council on Refugees and Exiles (ECRE) is a pan-European alliance of approximately seventy organisations in thirty countries whose work includes the protection and promotion of respect for all individuals seeking asylum in Europe. ECRE provides a voice to its participating agencies at the EU level on policy and prac32

Austria, Cyprus, France and Hungary.

33

The report notes that in Hungary only one legal advisor was available to assist, free of charge, five hundred asylum seekers at a reception centre.

34

The UK was highlighted here.

35

The FRA gives Slovenia as an example of this practice.

36

See the UNHCR Statistical Yearbook 2009 tables 10–12 at accessed 25 August 2014.

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tice in asylum. It carries out policy work and research and seeks to encourage new thinking on refugees and asylum in Europe. One of the objectives is to strengthen contacts between refugee-assisting non-governmental organisations in Europe and ensure their experience is shared with the EU institutions and those representing the Member States at the EU level. In October 2010 ECRE published an extensive study on legal aid for asylum seekers in Europe.37 The objective of the survey is to provide a comparative overview of the provision of legal aid for asylum seekers in nineteen countries across Europe based on information from ECRE’s participating organisations and expert lawyers and legal advisers.38 The report covers countries which are outside the EU but within the European Economic Area as well as the EU Member State which does not participate in the CEAS. The report notes that asylum claims in Europe are increasingly processed through sophisticated and complex legal procedures which render legal assistance and representation vital to the fairness of the proceedings. The role of free legal aid is central to ensuring fair outcomes as so many asylum seekers are without resources to pay for legal help. The fijindings of the study are consistent with many of those of the FRA, though from diffferent sources. Among the obstacles for asylum seekers in accessing legal aid are: (i) inadequate capacity when the individual is in detention; (ii) the speed of procedures particularly when the individual is subject to a transfer decision from one Member State to another (a so-called Dublin II procedure) or other border procedures; (iii) restrictive merits and means testing in the granting of legal aid which can leave individuals in need to assistance without it on the basis of mere procedural formality; and (iv) the restriction of free legal aid to the appeals stage in some countries. The study takes a wide defijinition of legal aid which encompasses legal information, advice, assistance and representation. It also examines the variety of ways in which legal services are provided, whether by private lawyers, caseworkers or legal advisors. The report emphasises throughout that the key feature of EU and international law to which the provision of free legal aid (assistance and representation) corresponds is the right to efffective judicial protection.

37

European Council on Refugees and Exiles, Survey on Legal Aid for Asylum Seekers in Europe (ECRE 2010). The report also uses information published by the European Migration Network, Ad Hoc Inquiry on the Legal Aid in International Protection Procedures (EMN 2009).

38

Austria, Belgium, the Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Lithuania, Norway, Romania, Slovenia, Spain, Switzerland, the Netherlands and the UK.

The Asylum Seeker’s Right to Free Legal Assistance and/or Representation in EU Law

The report fijinds that legal aid for asylum seekers was part of general national systems of legal aid in most countries (though in Ireland and the United Kingdom specialised bodies administer it). In a number of countries limitations are placed on legal advisors who can only provide assistance not representation. As seen elsewhere, the study fijinds that there are problems regarding availability of legal advisors and lawyers to meet the legal needs of asylum seekers in a number of countries.39 Means testing raises problems, according to the report particularly as there are substantial variations in how it is applied in diffferent countries. As regards merits tests, while these are less common, where they do exist, for instance in Italy, assessments of very similar cases difffer even from town to town in the same region. ECRE is particularly concerned about the stage at which legal aid becomes available to an asylum seeker. As noted in other reports, it is available at all stages in some countries, 40 but others only make it available at appeal stages. While asylum seekers may received some assistance before the appeal stage in the administrative procedure this may be provided by diffferent legal advisors. The report contains very detailed information about the structure of asylum procedures and access to justice in the countries under consideration including a detailed list of 36 recommendations to both national and EU authorities. From the myriad of detail, what is most impressive is the complexity and diversity of the free legal assistance and representation procedures in the countries surveyed. Leaving aside the complexity of asylum procedures themselves, the mechanisms for accessing free legal advice also require expert assistance for asylum seekers. The variety of forms, the information required and the terms under which certain types of information (such as regarding bank accounts which asylum seekers generally will not have) can be dispensed with, reveal the full spectrum of administrative imagination in Europe. VIII.

The European Court of Human Rights and Free Legal Assistance for Asylum Seekers

The European Court of Human Rights (ECtHR) is charged with the correct application of the European Convention on Human Rights (ECHR). All forty-seven countries in the Council of Europe41 are parties to the ECHR and required to accept the 39

Singled out in the report are the Czech Republic, Greece, Hungary, France and Slovenia.

40

Belgium, Finland, Hungary, Spain, the Netherlands and the UK. Low cost legal aid is also available in Ireland at all stages.

41

Which includes all twenty-seven EU Member States.

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jurisdiction of the ECtHR. Two provisions of the ECHR relate to procedures (Article 6 which relates to civil and criminal procedures) and Article 13 which requires an efffective remedy for everyone whose rights or freedoms as set out in the ECHR are violated. 42 The ECtHR has so far resisted arguments that immigration and asylum matters should be covered by the procedural rights contained in Article 6. This position is strengthened by the existence of a separate Protocol (Number 7) which includes procedural rights regarding the expulsion of aliens. Asylum procedures must, however, fulfijil the procedural requirements of Article 13 in so far as an ECHR right, most commonly but not exclusively the right to protection from torture, inhuman or degrading treatment or punishment (Article 3 ECHR) is at issue. On the issue of access to free legal aid, the ECtHR has a constant jurisprudence under Article 6 regarding the provision of legal aid where this is necessary for effective access to a court either because of the mandatory provisions of court proceedings or the complexity of the proceedings. 43 In a case against Turkey the ECtHR found that there had been a violation of Article 13 in respect of asylum procedures taking into account, though not exclusively on the basis of, the state’s failure to provide access to legal assistance to the applicant. 44 In a 2010 decision against Greece on the detention of an asylum seeker, the lack of access to free legal advice and assistance made his access to a remedy purely theoretical and therefore a breach, in that case, of Article 5 ECHR. 45 As asylum procedures become more complex and detention of asylum seekers during the procedure more common, the ECtHR has engaged ever more directly with the question of access to free legal assistance and representation. The contention that a fair asylum procedure requires that the applicant have access to free legal assistance and representation is increasingly established as a principle of European human rights law. As the Turkey and Greece cases indicate, the ECtHR is increasingly concerned about access to free legal assistance for asylum seekers throughout the asylum procedure and specifijically when they are detained. As these practices increase across Europe and procedures become more complex, the ECtHR’s jurisprudence has begun to crystallise on the necessity of free legal assistance.

42

ECHR Art 13: “Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

43

Airey v Ireland App no 6289/73 (ECtHR, 9 October 1979).

44

Abdolkhani and Karimnia v Turkey App no 30471/08 (ECtHR, 22 September 2009).

45

A.A. c Grèce App no 12186/08 (ECtHR, 22 July 2010).

The Asylum Seeker’s Right to Free Legal Assistance and/or Representation in EU Law

IX.

The Court of Justice and Free Legal Assistance as a Charter Rights

In the fijirst section of this presentation, I set out the EU legal framework for the provision of free legal assistance and representation. I insisted on the link between the right to asylum in Article 18 Charter and the right to an efffective remedy in Article 47 Charter. I then examined the provisions of EU secondary legislation (the Asylum Procedures Directive) which specify the obligations on EU Member states to provide free legal assistance and/or representation to asylum seekers. Regarding the obligations, exceptions and limitations which states are permitted to apply, I examined a series of reports and studies on the application of the provisions on free legal assistance and/or representation from offfijicial and non-governmental bodies in the Member States, all of which reveal the state of play regarding access to free legal assistance and/or representation for asylum seekers. In this fijinal section I will turn to an issue which may arise before judges in EU jurisdictions: when does the lack of free legal assistance and/or representation constitute a breach of Article 47 Charter and the individual can no longer be considered to have had efffective access to justice or to an efffective remedy? The problem is one wider than the EU not least as the right to efffective access to justice/access to an efffective remedy is enshrined in numerous international human rights agreements. However, the specifijicity of the obligations in EU law coupled with the number of asylum appeals which come before judges in the EU and the documented shortcomings in many Member States regarding the provision of free legal assistance and/or representation gives a particular urgency to the question. The well developed appeal structures of the Member States facilitate the arrival of this kind of legal question before national jurisdictions. The Court of Justice together with the ECtHR will have the fijinal word on what free legal assistance and/or representation is necessary for an asylum seeker to comply with Article 47 Charter. However, a Court of Justice decision of 22 December 2010 provides some guidance on the relationship of access to legal aid and Article 47 Charter albeit in a fijield outside asylum. 46 Directive 2003/8 was adopted by the EU to improve access to justice in cross border disputes and establishing minimum common rules relating to legal aid. It does not apply to legal aid for asylum procedures. The personal scope of the entitlement to legal aid under the Directive is limited to natural persons. In the case in question a company applied for legal aid in order to bring a case against the German state for liability under EU law. The company 46

Case C-279/09 DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH v Bundesrepublik Deutschland [2010] ECR I-13849.

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had no income or assets and was unable to make the necessary advance payment of court costs required under German national procedural rules. Nor could the company pay its lawyer to represent it (a compulsory requirement of the relevant court rules). The national court was uncertain whether the principle of efffectiveness contained in Article 47 Charter required the waiving of the advance payment and the grant of legal aid to the company. It asked the Court of Justice for clarifijication. The Court of Justice commenced with a short review of its jurisprudence from the 1970s onwards where it consistently holds that the detailed procedural rules governing actions for safeguarding an individual’s rights under EU law must not make it in practice impossible or excessively difffijicult to exercise rights conferred by EU law (paragraph 28). This line of jurisprudence long predates the Asylum Procedures Directive (as well as the Directive under consideration in the specifijic case). It also predates the Charter. The Court of Justice confijirmed that the principle of efffective judicial protection is a general principle of EU law stemming from the constitutional traditions common to the Member States and enshrined in Articles 6 and 13 ECHR (paragraph 29). It confijirmed that following the entry into force of the Lisbon Treaty, the Charter has the same legal efffect as the Treaties. It had regard to Article 47, third paragraph Charter and the right to legal aid where necessary to ensure efffective access to justice and to the explanations relevant to the provision (see section 1). The Court of Justice noted that the article is found in Title VI Charter which relates to justice rather than in Title IV relating to solidarity (paragraph 40 and 41). According the Court of Justice found that the right to legal aid is not conceived primarily as social assistance in which case the provision should have been found in Title IV but to procedural principles in Title VI. This means that the assessment of the need to grant legal aid must be made on the basis of the right of the actual person whose rights and freedoms as guaranteed by EU law have been violated, rather than on the basis of the public interest of society, even if that interest may be one of the criteria for assessing the need for the aid (paragraph 42). For the purposes of the asylum seeker, this means that the grant of legal aid must not be subject to arguments about state expenditure in the fijield of asylum even if public interest can be one criterion for assessing the need for the aid. The Court of Justice reviewed in some depth the jurisprudence of the ECtHR on legal aid, confijirming the importance of the interpretation of similar provisions in the ECHR to those in the Charter. It considered submissions regarding the dual function of the state refusing legal aid in that this was the same state which was the defendant in the proceedings. The Court of Justice stated that it does not preclude Member States from simultaneously exercising legislative, administrative and judicial functions provided that those functions are exercised in compliance with

The Asylum Seeker’s Right to Free Legal Assistance and/or Representation in EU Law

the principle of separation of powers which characterise, according to the Court the operation of the rule of law (paragraph 58). The Court of Justice found that the principle of efffective judicial protection as found in Article 47 EU Charter must be interpreted as meaning that anyone (in the case including legal persons) may rely on the principle and that the grant of legal aid pursuant to the principle may cover all the aspects of the case concerned (costs of the lawyer, court fees etc). It is, however, for the national court to determine whether the conditions for granting legal aid constitute: (i) a limitation on the right of access to the courts which undermines the very core of the right; (ii) whether they pursue a legitimate aim; and (iii) whether there is a reasonable relationship of proportionality between the means employed and the legitimate aim which is sought (paragraph 60). The Court of Justice requires the national court when making that a threefold assessment on whether the grant of legal aid is necessary to the respect the principle of efffective judicial protection to take into consideration the following factors: (i) the subject matter of the litigation; (ii) whether the applicant has a reasonable prospect of success; (iii) the importance of what is at stake for the applicant in the proceedings; (iv) the complexity of the applicable law and procedure; and (v) the applicant’s capacity to represent him or herself efffectively (paragraph 61). In the assessment of the proportionality of the grant of legal aid, the national court may take into account whether the costs involved might represent an insurmountable obstacle to access to the courts. Applying the reasoning of the Court of Justice in this case to the question of efffective judicial protection for asylum seekers, there are four key aspects. First, Article 15 Asylum Procedures Directive is not the fijinal word on access to free legal assistance and/or representation for asylum seekers. It is subject to and must be interpreted in accordance with the general principle of EU law of efffective judicial protection. Secondly, the EU principle is enshrined not only in Article 47 EU Charter but flows from the constitutional traditions common to the Member States which are directly applicable to the case. Thirdly, the EU principle of efffective judicial protection itself is not self standing but must be interpreted consistently with the jurisprudence of the ECtHR on both Articles 6 and 13 ECHR regarding access to legal aid. Finally, a common set of criteria are set out to help the national judge to make the assessment in any particular case. Of those criteria, any asylum seeker satisfijies all but one of them without further question. Clearly the subject matter of any asylum claim may be one of life and death, thus of obvious importance for the individual. The complexity of the relevant law has been underlined again and again in the relevant reports about the CEAS. The applicant’s capacity to represent him or herself where the applicant is an asylum seeker is usually very limited not least because of

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language issues. The fijinal question which the judge may have to ask him or herself in the assessment is whether the asylum seeker has a reasonable prospect of success – the merits test incorporated into Article 15 of Directive 2005/85. As apparent from the Commission’s report, few Member States consider a merits test appropriate to the decision to grant free legal assistance and/or representation to asylum seekers. Among the questions for the national judge is whether the individual has had legal assistance in the preparation of the claim. If this has not been available and in light of the complexity of EU asylum law, the prospect of success for the individual may only become apparent once legal aid has been granted and the individual’s claim to international protection has been properly prepared and presented to the court. X.

Conclusion

The importance of free legal assistance and representation for asylum seekers to the successful and timely resolution of their claims for international protection cannot be stressed sufffijiciently. It is a core element in any complex asylum determination procedure. The earlier and the more comprehensive legal assistance and representation is made available to the asylum seeker, the easier the job for the administration and the judge. A well prepared and presented asylum claim is much less likely to be rejected. Where it is refused, the issues of contention between the parties will be clearer on appeal. The judge’s job will be simplifijied as there will be nearer equality of arms among the parties. Further, access to justice is a human right incorporated into international and European human rights and EU Charter rights. Access to justice can require the grant of free legal assistance and representation depending on the importance of the issues at stake for the individual according to both the ECtHR and the Court of Justice. The role of judges in ensuring that impecunious asylum seekers actually receive free legal assistance and representation as early as possible in the proceedings is not simply based on self interest. It is an obligation arising from both EU and ECHR. It is for the EU national judges to ensure this important human right is respected in accordance with the guidance which they have been given by their supranational courts.

Annex I: EU Immigration and Asylum Law1

1.

Asylum

Adopted measures UK opt in to all except 11 and 14-15; Ireland opt in to all except 4, 11, 12 and 14-15. 1. 2. 3. 4.

5.

6.

7.

1

Decision 2000/596/EC on a European Refugee Fund [200] OJ L 252/12 Regulation 2725/2000 on Eurodac [2000] OJ L 316/1 – Regulation 407/2002 implementing the Eurodac Regulation [2002] OJ L 62/1 Directive 2001/55 on temporary protection [2001] OJ L 212/12 Ireland opt-in [2003] OJ L251/13 Directive 2003/9 on reception conditions [2003] OJ L 31/18 repealed for most Member States by 15 will still be in force for the UK, see Directive 2013/33, Preamble para. 33 & Art. 32 Regulation 343/2003: Dublin II [2003] OJ L 50/1 amended by Regulation 1103/2008 [2008] OJ L 304/80; repealed by 13 – Commission Regulation 1560/2003 implementing Dublin II [2003] OJ L 222/3, amended by 13 & by Regulation 118/2004 [2014] OJ L 39/1 Directive 2004/83 on refugee/subsidiary protection qualifijication [2004] OJ L 304/12), repealed for most Member States by 11; still in force for the UK and Ireland, see Regulation 2011/95, Preamble para. 50 & Art. 40 Decision 2004/904 on the European Refugee Fund for 2005–2010 [2004] OJ L 381/52) repealed by 9

Many thanks to Professor Steve Peers, University of Essex, for providing this information table. The information is up-to-date to 31 August 2014.

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8.

9.

10. 11. 12. 13. 14. 15. 16. 17.

Directive 2005/85 on asylum procedures [2005] OJ L326/13 repealed for most Member States by 15; will still be in force for the UK & Ireland, see Directive 2013/33, Preamble point 58 & Art. 53 Decision 573/2007 on the European Refugee Fund 2008–2013 [2007] OJ L 144/1 amended by Decision 458/2010 [2010] OJ L 129/1, Decision 281/2012 [2012] OJ L 92/1 & Decision 258/2013 [2013] OJ L82/1; replaced by 17 Regulation 439/2010 on the European Asylum Support Offfijice [2010] OJ L 132/11 Directive 2011/95: revised qualifijication Directive [2011] OJ L 337/9 Regulation 603/2013: revised Eurodac Regulation [2013] OJ L 180/1 – applies from 20 July 2015 Regulation 604/2013: revised Dublin Regulation [2013] OJ L 180/31 – applied from 1 January 2014 Directive 2013/32: revised procedures Directive [2013] OJ L 180/60 – deadline July 2015 Directive 2013/33: revised reception Directive [2013] OJ L 180/96 – deadline July 2015 Regulation 514/2014: Asylum and Migration Fund – general rules [2014] OJ L 150/112 Regulation 516/2014: Asylum and Migration Fund [2014] OJ L 150/168

Proposed measures Amendment to Regulation 604/2013: COM (2014) 382, 26 June 2014 (unaccompanied minors) 2.

Legal Migration

Adopted measures 1. 2. 3.

4. 5.

Regulation 1030/2002 on residence permit format [2002] OJ L 157/1 [UK opt in] amended by Regulation 330/2008 [2008] OJ L 115/1 Regulation 859/2003 on 3rd-country nationals’ social security [2003] OJ 2003 L 124/1 [UK, Ireland opt in] Directive 2003/86 on family reunion [2003] OJ 2003 L 251/12 – challenge to validity of parts of the Directive decided in favour of the Council (Case C-540/03 EP v Council [2006] ECR I-5769) Directive 2003/109 on third country long-term residents [2004] OJ L 16/44) amended by 12 Directive 2004/114 on migration of third-country students, pupils, trainees and volunteers [2004] L 375/12)

EU Immigration and Asylum Law

6. 7. 8.

Directive 2005/71 on admission of researchers [2005] OJ L 289/15 Recommendations on admission of researchers [2005] OJ L 289/22 & 26 Decision 2006/688 on asylum and immigration information exchange [2006] OJ L 283/40 [UK, Ireland opt in] 9. Decision 2007/435 on the European Integration Fund 2007–2013 [2007] OJ L 168/18) [UK, Ireland opt in] repealed by Regulation 516/2014 (see I.13) 10. Directive 2009/50 on the conditions of entry and residence of third-country nationals for the purposes of highly qualifijied employment (‘Blue Card’ directive) [2009] OJ L 155/17 11. Regulation 1231/2010 extending Regulations 883/2004 & 987/2009 on social security for EU citizens to third-country nationals who move within the EU [2010] OJ 2010 L 344/1 [Ireland opt-in] 12. Directive 2011/51 on long-term resident status for refugees and persons with subsidiary protection [2011] OJ L 132/1 13. Directive 2011/98 on single permit and common set of rights for workers [2011] OJ L 343/1) – deadline 25 December 2013 14. Directive 2014/36 on admission of seasonal workers [2014] OJ L 94/375) – deadline 30 September 2016 15. Directive 2014/66 on admission of intra-corporate transferees (OJ 2014 L 157/1) – deadline 29 November 2016 Proposed measures Directive on admission of students, researchers and others (COM (2013) 151, 25 March 2013) – under discussion in Council working party; EP plenary vote 1st reading, 25 February 2014 3.

Borders and Visas

Adopted measures UK & Ireland have opted out of all measures except UK opt in to 1, 3 1. 2.

Regulation 1683/95 on common visa format [1995] OJ L 164/1, amended by Regulations 334/2002 [2002] OJ L 53/7 & 856/2008 [2008] OJ L 235/1 Reg. 539/2001 establishing the visa list [2011] OJ L 81/1, amended by Regulations 2414/2001 moving Romania to ‘white list’ [2001] OJ L 327/1; 453/2003 moving Ecuador to ‘black list’ [2003] OJ L 69/10; 851/2005 on reciprocity for visas [2005] OJ L 141/3; 1932/2006 [2006] OJ L 405/23;1244/2009 lifting visa requirement for some Western

287

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Balkan countries [2009] OJ L 336/1; 1091/2010 lifting visa requirement for other Western Balkan countries [2010] OJ L 329/1; 1211/2010 lifting visa requirement for Taiwan [2010] OJ L 339/6; 1289/2013 [2013] OJ L 347/74; 259/2014 [2014] OJ L 105/9 lifting visa requirement for Moldova, & 509/2014 [2014] OJ L 149/67 3. Reg. 333/2002 on visa stickers for persons coming from unrecognised entities [2002] OJ L 53/4) 4. Regulation 693/2003 on a Facilitaed Transit Document (FTD) and a Facilitated Rail Transit Document (FRTD) [2003] OJ L 99/8 5. Regulation 694/2003 on format for FTD and a Facilitated Rail FRTD [2003] OJ L 99/15 6. Decision 2004/512 establishing the Visa Information System (VIS) [2004] OJ L 213/5 7. Regulation 2007/2004 establishing the External Borders Agency (Frontex) (OJ 2004 L 349/1), amended by Regulations 863/2007 on border guard teams [2007] OJ L 199/30; 1168/2011 [2011] OJ L 304/1) & 21 8. Regulation 2252/2004 on biometric passports [2994] OJ L 385/1, amended by Regulation 444/2009 on biometric passports [2009] OJ L 142/1 9. Recommendations on visa issuing for researchers [2005] OJ L 289/23 & 26 10. Regulation 562/2006, Schengen borders code [2006] OJ L 105/1, amended by Regulations 296/2008, [2008] OJ L 97/60; 81/2009, regarding use of the VIS [2009] OJ L 35/56; 16, establishing the Visa Code; 610/2013 [2013] OJ L 182/1; 1051/2013 [2013] OJ 2013 L 295/1, and the Treaty of Accession of Croatia [2012] OJ L 112/10 11. Decisions 895/2006 & 896/2006 on transit through new Member States, Switzerland & Liechenstein [2006] OJ L 167/1 & 8 - see implementation information, [2006] OJ C 251/20, Decision 896/2006 amended by Decision 586/2008, see 14) 12. Regulation 1931/2006 on local border trafffijic at external borders [2006] OJ L 405/1, corr. [2007]OJ L 29/3, amended by Regulation 1342/2011 [2011] OJ L 347/41 13. Decision 574/2007 establishing the European Borders Fund 2007—2013 [2007] OJ L 144) amended by Decision 259/2013 [2013] OJ L 82/6 and repealed by 24 14. Decisions 582/2008 on transit through Bulgaria, Cyprus & Romania [2008] OJ L 161/30) and 586/2008 amending Decision 896/2006 (see 11) [2008] OJ L 162/27 15. Regulation 767/2008 establishing the Visa Information System (VIS) [2008] OJ L 218/60, amended by 16 & Regulation 610/2013 [2013] OJ L 182/1; Decision 2998/663 Third Pillar decision on Access to VIS by designated authorities [2008] OJ L 218/129 16. Regulation 810/2009 on the Visa Code [2009] OJ L 243/1), amended by Commission Regulation 977/2011 [2011] OJ L 258/9, & Regulations 154/2012 [2012] OJ 2012 L 58/3 & 610/2013 [2013] OJ L 182/1 17. Regulation 265/2010 on long-stay visas code (OJ 2010 L 85/1) 18. Regulation 1077/2011 establishing a European Aagency to manage VIS, SIS and Eurodac [2011] OJ L 286/1

EU Immigration and Asylum Law

19. Decision 1105/2011 on travel documents [2011] OJ L 287/9 20. Regulation 1053/2013 on Schengen evaluation [2013] OJ 2013 L 295/27 21. Regulation 1052/2013 establishing the European Border Surveillance System (Eurosur) [2013] OJ L 295/11 22. Regulation 656/2014 on maritime surveillance operations [2014] OJ L 189/93 23. Decision 565/2014 on transit as regards Bulgaria, Croatia, Cyprus and Romania [2014] OJ L 157/23 24. Regulation 515/2014 establishing fijinancial support for Borders and Visa as part of the Internal Security Fund [2014] OJ L 150/143 Proposed measures UK, Ireland opt out of all 1. 2. 3. 4. 5. 6.

4.

Regulation codifying Regulations establishing EU visa list (COM (2008) 761, 28 Nov. 2008) – discussion terminated in Council working group Regulation establishing entry-exit system (COM (2013) 95, 27 Feb. 2013) – under discussion in Council Regulation amending borders code re: entry-exit system (COM (2013) 96, 27 Feb. 2013) - under discussion in Council Regulation establishing registered traveller programme (COM (2013) 97, 27 Feb. 2013) - under discussion in Council Regulation recasting visa code, (COM (2014) 164, 1 April 2014) - under discussion in Council Regulation establishing touring visa (COM (2014) 163, 1 April 2014) - under discussion in Council Irregular Migration

Adopted measures UK opt-in to all except 7, 12, 13, 17, 20, 21 1. 2. 3. 4.

Directive 2001/40 on mutual recognition of expulsion decisions [2001] OJ L 149/34 Directive 2001/51 on carrier sanctions [2001] OJ L 187/45, implementation by 11 February 2003 Regulation 2424/2001 on funding SIS II [2001] OJ L 328/4, corr. [2007] OJ L 27/3, amended by 18 Decision 2001/886/JHA on funding SIS II [2011] OJ L 328/1, corr. [2007] OJ L 27/43, amended by Decision 2006/1007 [2006] OJ L 411/78

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5. 6.

7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23.

5.

Framework Decision 2002/629 on trafffijicking in persons [2002] OJ L 203/1, repealed by 23 Directive 2002/90 [2002] OJ L 328/17 & Framework Decision 2002/946 on strengthening the penal framework to prevent the facilitation of unauthorised entry, transit and residence OJ 2002 L 328/1 Directive 2003/110 on transit for expulsion by air [2003] OJ L 321/26 Council Conclusions on transit via land for expulsion—adopted 22 December 2003, Council Press Release 03/376 (document 16140/03), document 15998/03 rev.1 Regulation 378/2004 on procedure for amendments to Sirene manual: [2004] OJ L 64/5 Regulation 377/2004 on ILO network [2004] OJ L 64/1, amended by 22 Decision 2004/191 on costs of expulsion [2004] OJ L 60/55 Directive 2004/81 on residence permits for trafffijicking victims [2004] OJ L 261/19 Regulation 871/2004 on new functionalities for SIS [2004] O L 162/29 Directive 2004/82 on transmission of passenger data [2004] OJ L 261/24 Decision 2004/573 on joint flights for expulsion [2004] OJ L 261/28 Decision 2005/267 on the early warning system OJ 2005 L 83/48 Regulation 1987/2006 establishing SIS II [2006] OJ L 381/4 Regulation 1988/2006 on SIS II [2006] OJ L 411/1, amending 3 Decision 575/2007 on European return programme [2007] OJ L 144/55 Directive 2008/115 (Returns Directive) [2008] OJ L 348/98 Directive 2009/52 on sanctions for employers of irregular migrants [2009] OJ L 168/24, corr. [2008] OJ L 208/22 Regulation 493/2011 amending Regulation 377/2004 on immigration liaison offijicers [2011] OJ L 141/13 Directive 2011/36 on trafffijicking in persons [2011] OJ L 101/1, repealing 5 – deadline to implement 6 April 2013 External treaties

Readmission – – – – – –

Hong Kong [UK opt in] [2004] OJ L 17/23: in force 1 March 2004 [2004] OJ L 64/38 Macao - [UK opt in] [2004] OJ L 143/97: in force 1 June 2004 [2004] OJ L 258/17 Sri Lanka [UK opt in] [2005] OJ L 124/43: in force 1 May 2005 [2005] OJ L 138/17 Albania – [UK opt in] [2005] OJ L 124/22: in force 1 May 2006 [2006] OJ L 96/9 Russia – [UK opt in] [2007] OJ L 129/40: in force 1 June 2007 [2007] OJ L 156/37 Ukraine – [UK opt in] [2007] OJ L 332/48 – in force 1 Jan. 2008 [2008] OJ L 24/52

EU Immigration and Asylum Law

– – – – – – – – – – –

FYROM Macedonia – [UK opt in] [2007] OJ L 334/7: in force 1 January 2008 [2008] OJ L 24/51 Montenegro – [UK opt in] [2007] OJ L 334/26: in force 1 January 2008 [2008] OJ L 24/51 Serbia – [UK opt in] [2007] OJ L 334/46: in force 1 January 2008 [2008] OJ L 24/51 Bosnia & Herzegovina – [UK opt in] [2007] OJ L 334/66: in force 1 January 2008 [2008] OJ L 24/52 Moldova – [UK opt in] [2007] OJ L 334/149: in force 1 January 2008 [2008] OJ L 24/51 Pakistan – [2010] OJ L 287/50: in force 1 Dec. 2010 [2011] OJ L 124/1 Georgia – [2011] OJ L 52/47: in force 1 March 2011 [2011] OJ L 44/1 Cape Verde [2013] OJ L 282/15: not yet in force Armenia [2013] OJ L 289/13: in force 1 January 2014 [2013] OJ L 334/1 Azerbaijan [2014] OL L 128/17: in force 1 September 2014 [2014] OJ L 215/1 Turkey [2014] OJ L 134/3: in force 1 October 2014

The Council also approved negotiation mandates with Morocco (September 2000; Council Document 6139/13 Add. 1, Rev. 3 on the Mobility Partnership between the EU and Morocco noted the intention to resume negotiations on readmission, but the Euro-Mediterranean Human Rights Network has observed that this is not at present feasible: http://www.euromedrights.org/eng/2014/02/11/ (accessed 31 August 2014)), Algeria, and China (November 2002, although no progress appears to have been made on these), & Belarus (February 2011, likewise) Other external treaties In force dates from the entries in the EU’s External Action Service Treaties Offfijice database, where no OJ reference given. – EC/Norway/Iceland re: Dublin Convention [2001] OJ L 93/40: in force 1 March 2001; Protocol [2006] OJ L 57/16: in force 1 May 2006; Switzerland [2008] OJ L53/5: in force 1 March 2008 – EC/Swiss free movement of persons [2002] OJ L 114/6: in force 1 June 2006 – EC & Switzerland re Schengen, Dublin [2008] OJ L 53/52: in force 1 March 2008, applied from December 2008 – ‘Approved Destination Status’ treaty with China [2004] OJ L 83/14); in force 1 May 2004 – Dublin II treaty with Denmark [2006] OJ L 66/38: in force, 1 April 2006 – visa facilitation agreement with Russia [2007] OJ L 129/7: in force 1 June 2007

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Annex I

– – – – – – – – – –

– – – – – – – –

visa facilitation agreement with Ukraine [2007] OJ L 332/68: in force 1 January 2008 [2008] OJ L 24/53 (amended, see below) visa facilitation agreement with Serbia [2007] OJ L 334/137: in force 1 January 2008 [2008] OJ L 24/53 visa facilitation agreement with Montenegro [2007] OJ L 334/109: in force 1 January 2008[2008] OJ L 24/52 visa facilitation agreement with Bosnia-Herzegovina [2007] OJ L 334/97: in force 1 January 2008 [2008] OJ L 24/52 visa facilitation agreement with FYROM Macedonia [2007] OJ L 334/125: in force 1 January 2008 [2008] OJ L 24/53 visa facilitation agreement with Albania [2007] OJ L 334/85: in force 1 January 2008 [2008] OJ L 24/52 visa facilitation agreement with Moldova [2007] OJ L 334/169: in force 1 January 2008 [2008] OJ L 24/53 (amended, see below) visa facilitation agreement with Georgia [2011] OJ L 52/44: in force 1 March 2011 [2011] OJ L 44/1 visa facilitation agreement with Cape Verde [2013] OJ L 282/3 (not yet in force) visa waiver treaties for short-stay agreed with six micro-states (Antigua/Barbuda [2009] OJ L 169/3: in force 1 May 2010; Barbados [2009] OJ L 169/10: in force 1 March 2010; Mauritius [2009] OJ L 169/17: in force 1 March 2010; Bahamas [2009] OJ L 169/24: in force 1 April 2010; Seychelles [2009] OJ L 169/31: in force 1 January 2010, and St. Kitts and Nevis [2009] OJ L 169/38 (not yet in force) two visa waiver treaties for short stay with Brazil [2011] L 66/2: in force 1 April 2011; [2012] OJ L 255/4: in force 1 October 2012 Council mandate to renegotiate visa facilitation agreements with Russia, Ukraine, Moldova, April 2011 visa facilitation agreement with Ukraine [2013] OJ L 168/13: in force 1 July 2013 visa facilitation agreement with Moldova [2013] OJ L 168/3: in force 1 July 2013 visa facilitation agreement with Armenia [2013] OJ L 289/2 – in force 1 January 2014 visa facilitation agreement with Azerbaijan [2014] OJ L 128/49: in force 1 September 2014 Council mandate to negotiate visa facilitation agreement with Belarus, February 2011 Council mandate to negotiate with Morocco, December 2013

Annex II: EU Immigration and Asylum case-law1

Asylum Decided references from national courts: Dublin II Case C-19/08 Petrosian [2009] ECR I-495 – 29 Jan. 2009 – Swedish reference Joined Cases C-411/10 & Case C-493/10 NS & M.E. et al [2011] ECR I-13905 – 21 December 2011 – UK & Irish references respectively Case C-620/10 Kastrati et al. ECLI:EU:C:2012:265 – 3 May 2012 – Swedish reference Case C-245/11 K ECLI:EU:C:2012:685 – 6 November 2012 – Austrian reference Case C-528/11 Halaf ECLI:EU:C:2013:342 – 30 May 2013 – Bulgarian reference Case C-648/11 MA et al. ECLI:EU:C:2013:367 – 6 June 2013 UK reference Case C-4/11 Puid ECLI:EU:C:2013:740 – 14 November 2013 – German reference Case C-394/12 Abdullahi ECLI:EU:C:2013:813 – 10 December 2013 – Austrian reference Qualifijication Directive Case C-465/07 Elgafaji [2009] ECR I-921 – 17 February 2009 – Dutch reference Joined Cases C-175/08 – C-179/08 Abdulla et al. [2010] ECR 1493 – 2 March 2010 – German reference – cessation

1

Many thanks to Professor Steve Peers, University of Essex, for providing this information table. The information is up-to-date to 10 September 2014.

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Annex II

Case C-31/09 Bolbol [2010] ECR 5539 – 17 June 2010 – Hungarian reference – exclusion of palestinians Joined Cases C-57/09 & C-101/09 B and D [2010] ECR I-10979 – 9 November 2010 – German reference – exclusion Joined Cases C-71/11 Y and C-99/11 Z ECLI:EU:C:2012:518 – 5 September 2012 – German reference – religious persecution Case C-277/11 MM ECLI:EU:C:2012:744 – 22 November 2012 – Irish reference – procedural rights Case C-364/11 El Kott ECLI:EU:C:2012:826 – 19 December 2012 – Hungarian reference – UNRWA assistance and withdrawal thereof Joined Cases C-199/12 – C-201/12 X, Y and Z ECLI:EU:C:2013:720 – 7 November 2013 – Dutch reference – sexual orientation Case C-285/12 Diakité ECLI:EU:C:2014:39 – 30 January 2014 – Belgian reference – subsidiary protection Case C-604/12 HN ECLI:EU:C:2014:302 - 8 May 2014 – Irish reference – subsidiary protection Case C-481/13 Qurbani ECLI:EU:C:2014:2101 - 17 July 2014 – German reference – Article 31 Refugee Convention – jurisdiction declined Asylum procedures Case C-69/10 Samba Diouf [2011] ECR I-7151 28 July 2011 – Luxembourg reference Case C-175/11 H.I.D. ECLI:EU:C:2013:45 – 31 January 2013 – Irish reference Reception conditions Case C-179/11 CIMADE & GISTI ECLI:EU:C:2012:594 – 27 September 2012 Case C-79/13 Saciri et al. ECLI:EU:C:2014:103 - judgment 27 February 2014 – Belgian reference Pending cases: Cases C-148/13 to C-150/13 A, B and C - qualifijication directive; opinion 17 July 2014 Case C-373/13 T - qualifijication directive; opinion due 11 September 2014 Case C-472/13 Shepherd - qualifijication directive; hearing 25 June 2014 Case C-542/13 M’Bodj - qualifijication directive; opinion 17 July 2014 Case C-562/13 Abdida - asylum legislation; opinion due 4 September 2014

EU Immigration and Asylum case-law

Legal migration Decided infringement proceedings Case C-508/10 Commission v Netherlands ECLI:EU:C:2012:243 – 26 April 2012 – longterm residents’ directive

Decided references from national courts: Case C-578/08 Chakroun [2010] ECR I- 1839 – 4 March 2010 – family reunion Directive – Dutch reference Case C-247/09 Xhymshiti [2010] ECR I-11845 – 18 November 2010 – Regulation 859/2003 on social security for third-country nationals – German reference Case C-571/10 Kamberaj ECLI:EU:C:2012:233 – 24 April 2012 – long-term residents’ directive – Italian reference Case C-15/11 Sommer ECLI:EU:C:2012:371 – 21 June 2012 – students’ Directive – Austrian reference Case C-502/10 Singh ECLI:EU:C:2012:636 – 18 October 2012 – long-term residents’ directive – Dutch reference Case C-138/13 Dogan ECLI:EU:C:2014:2066 – 10 July 2014 – family reunion directive, linguistic knowledge requirement – German reference Case C-338/13 Noorzia ECLI:EU:C:2014:2092 – 17 July 2014 – family reunion Directive – Austrian reference Case C-469/13 Tahir ECLI:EU:C:2014:2094 – 17 July 2014 – long-term residents Directive – Italian reference Case C-491/13 Ben Alaya ECLI:EC:C:2014:2187 – 10 September 2011 – students’ directive –German reference Pending cases: Case C-579/13 P and S - long-term residents’ directive Case C-153/14 K and A - family reunion Directive

295

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Annex II

Visas/Borders Decided annulment actions: Case 257/01 Commission v Council [2005] ECR I-345 – 18 January 2005 – unsuccessful challenge to Regulations 789/2001 and 790/2001, Cases C-77/05 and C-137/05 UK v Council [2007] ECR I-11459 – 18 December 2007 unsuccessful challenge to the Border Agency Regulation and passport Regulation Case C-482/08 UK v Council [2010] ECR I-10413 – 26 October 2010 – unsuccessful challenge to the Decision on police access to VIS, due to UK non-participation Case C-355/10 EP v Council ECLI:EU:C:2012:516 – 5 September 2012 – annulment of sea surveillance measure implementing Borders Code Decided infringement proceedings: Case C-139/13 Commission v Belgium ECLI:EU:C:2014:80 – 13 February 2014 – breach of passports Regulation Decided national court references: Case C-241/05 Bot [2006] ECR I-9627 – 4 October 2006 – freedom to travel – French reference Case C-139/08 Kqiku [2009] ECR I-2877 - transit legislation – German reference Joined Cases C-261/08 Zurita Garcia & C-348/08 Choque Cabrera [2009] ECR I-10143 – 22 October 2009 – Borders code – Spanish reference Joined Cases C-188/10 and C-189/10 Melki and Abdeli [2010] ECR I-5667 – 22 June 2010 – Borders Code re internal border controls – French reference Case C-430/10 Gaydarov [2011] ECR I- 11637 – 17 November 2011 – Borders, EU citizen, prohibition on exit because of criminal conviction elsewhere – Bulgarian reference Case C-434/10 Aladzhov [2011] ECR I-11659 – 17 November 2011 – Borders, EU citizen, prohibition on exit because of non-payment of debt – Bulgarian reference Case C-83/12 Vo ECLI:EU:C:2012:202 10 April 2012 – Visa Code – German reference Case C-606/10 Association Nationale d’Assistance aux Frontières pour les Etrangers (ANAFE) ECLI:EU:C:2012:348 – 14 June 2012 – Borders Code – French reference Case C-278/12 PPU Adil ECLI:EU:C:2012:508 – 19 July 2012 – Borders Code – Dutch reference Case C-23/12 Zakaria ECLI:EU:C:2013:24 – 17 January 2013 – Borders Code – Latvian reference

EU Immigration and Asylum case-law

Case C-254/11 Shomodi ECLI:EU:C:2013:182 – 21 March 2013 – local border trafffijic at external borders Regulation – Hungarian reference Case C-291/12 Schwarz ECLI:EU:C:2013:670 – 17 October 2013 – validity of passports Regulation – German reference Case C-84/12 Koushkaki ECLI:EU:C:2013:862 – 19 December 2013 – visa code – German reference Case C-575/12 Air Baltic ECLI:EU:C:2014:2155 – 4 September 2014 – Borders Code, Visa Code – Latvian reference Pending cases: Cases C-446/12 to C-449/12 Willems and others – validity of passports regulation Case C-101/13 U – passports Regulation; opinion 30 April 2014 Irregular migration Decided cases (all concern Returns Directive): Case C-357/09 PPU Kadzoev [2009] ECR I-1189 – 30 November 2009 – Bulgarian reference Case C-61/11 PPU El Dridi alias Soufiji [2011] ECR I-3015 – 28 April 2011 – Italian reference Case C-329/11 Achughbabian [2011] ECR I-12695 – 6 Dec. 2011, French reference Case C-430/11 Sagor ECLI:EU:C:2012:777 - 6 December 2012 – Italian reference Case C-522/11 Mbaye ECLI:EU:C:2013:190 – 21 March 2013 (order) – Italian reference Case C-534/11 Arslan ECLI:EU:C:2013:343 – 30 May 2013 – Czech reference Case C-383/13 PPU M.G. and N.R. ECLI:EU:C:2013:533– 10 September 2013 – Dutch reference Case C-297/12 Filev & Osmani ECLI:EU:C:2013:969 – 19 September 2013 – entry bans – German reference Case C-146/14 PPU Mahdi ECLI:EU:C:2014:1320 – 5 June 2014 – Bulgarian reference Case C-189/13 Da Silva ECLI:EU:C:2014:2043 – 3 July 2014 – French reference Joined Cases C-473/13 Bero & C-514/13 Bouzalmate ECLI:EU:C:2014:2095 – 17 July 2014, German reference Case C-474/13 Pham ECLI:EU:C:2014:2096 – 17 July 2014 – German reference

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298

Annex II

Pending (all concern Returns Directive): Case C-166/13 Mukarubega opinion 26 June 2014 Case C-249/13 Boujlida opinion 26 June 2014 Case C-554/13 Zh and O Case C-38/14 Zaizoune

Index

A

C

Abu Dhabi Dialogue 77-79 African (Banjul) Charter on Human and Peoples’ Rights 59-60, 70, 157 African Economic Community (AEC) 238-9 African Union (AU) 60, 69, 237 Aliens 201-222 American Convention on Human Rights (ACHR) 60-61 Additonal Protocol to the ACHR in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador) 61 American Declaration on the Rights and Duties of Man 60, 157 Andean Community 249-250 Instrument of Labour Migration (AILM) 250 Instrument on Social Security 250 Arab Charter on Human Rights 157 Arab Maghreb Union (AMU) 239 Australia – New Zealand Closer Economic Relations Trade Agreement (ANZCERTA) 225 Association of Southeast Asian Nations (ASEAN) 71-72 Asylum 17, 65, 111-114, 186-187, 196, 212, 228, 261-284

Caribbean Community and Common Market (CARICOM) 249, 254-5 Central American Integration System (SICA) 249, 256-7 Citizenship 1, 3, 7, 9-11, 17, 30, 61, 91, 92-93, 96, 99, 103, 105-8, 127, 161-162, 167, 190, 192, 193, 198, 218, 228, 240-1, 253, 257, 259 EU 1, 6-7, 84, 129-130, 156, 161-162, 184, 212, 214, 226-8, 230, 253 Clandestino Project 22 Colombo Process 77-78 Common European Asylum System (CEAS) 262-3, 267-8, 273, 275, 277, 278, 283 Common Market for Eastern and Southern Africa (COMESA) 238, 239, 243-5, 248 Communauté économique de l’Afrique de l’Ouest (CEAO) 243 Community of Sahelo-Saharian States (CEN-SAD) 239 Convention on Diplomatic officers 203-4 Council of Europe 1, 9, 62-64, 72-73, 101, 130, 140, 172, 212, 225, 236-237, 259-260, 264, 275, 279 Additional Protocol to the Convention on the Transfer of Sentenced Persons 140 European Agreement on Regulations governing the Movement of Persons between Member States of the Council of Europe 236

B Benelux 231-234, 259 Berne Initiative 75 Brussels II bis Regulation 130, 133-138

300

Index European Convention on Establishment 236 ECHR, see European Convention on Human Rights European Convention on the Legal Status of Migrant Workers 64, 84-85 European Convention on Nationality 1, 105 European Convention on Social and Medical Assistance 83, 85 Framework Convention for the Protection of National Minorities 104

D Deportation 7, 8, 121, 128, 179-195, 196, 215 Discrimination 1, 6, 29, 33, 34, 40, 44, 60, 61, 63, 70, 71, 73, 78, 92, 101-105, 107, 149, 150, 151, 152, 165, 189, 202, 222, 226-228, 231-2, 236-7, 246, 250 Dominican Republic-Central American Free Trade Agreement (DR-CAFTA) 249

E East African Community (EAC) 239, 2456, 248 EAC-COMESA-SADC Tripartite Free Trade Agreement 248 EC Treaty 6, 184, 265 Economic Community of Central African States (ECCAS) 239, 247-8 Economic Community of West African States (ECOWAS) 239, 240-3, 246 EFTA 229-231, 259 Emigration 5, 13, 17, 18, 151, 163, 241, 258 Employment 19, 20, 27-80, 82, 85, 127, 173, 183, 186, 198, 226, 231, 235, 241, 245, 247, 255 Entry 1, 22, 28, 48, 65, 66, 97, 100, 104, 105, 113, 117, 121, 144, 165, 179, 190, 202, 203, 204, 208, 214, 217, 219, 230, 231, 236, 240, 247, 249, 251, 252, 253, 255, 257 Euro-Mediterranean EU Agreements Morocco 86 European Arrest Warrant 139

European Convention on Human Rights (ECHR) 1, 8, 62, 87, 104-5, 115-6, 119-130, 132-141, 157, 171, 181, 187-9, 195, 200, 202, 215-6, 218-221, 237, 264-8, 279-80, 282, 283, 284 European Council on Refugees and Exiles (ECRE) 276-8 European Economic Area (EEA) 19, 55, 64, 121, 180, 182-5, 186, 197, 225, 229-231, 235, 237 European Free Trade Association (EFTA) 229-231, 259 European Social Charter 63, 88 European Union 1, 11, 16-17, 20, 55, 64-69, 82, 87, 90-91, 115, 116, 119-122, 126-129, 140-141, 156-157, 160, 162, 166, 181, 212-4, 221, 225, 228-9, 231, 232-3, 235, 237, 259260, 262-3, 264, 265, 272, 276-8, 280-284 Charter of Fundamental Rights 68, 86, 116, 119-120, 228, 263-267, 275, 281-84 Citizenship 1, 6-7, 84, 121, 129, 156, 161162, 184, 212, 214, 226-8, 259 Frontex 117 Fundamental Rights Agency 274-276 Mobility Partnerships 229 Exit 145-147, 152-154, 163-164, 168, 174 Expulsion 9, 10, 52, 62, 63, 68, 70, 90, 122126, 128-9, 135, 173-195

F Free Legal Assistance 261-284

G Geneva Convention on the Status of Refugees 150, 187, 215-6, 264-5 Global Forum on Migration and Development (GFMD) 76

H Hague Convention on the Civil Aspects on International Child Abduction 130, 131, 133-138 Helsinki Treaty 235 Human Rights Committee 8, 147, 155, 167, 170, 174, 176, 202, 211, 212, 216-8 Human Rights Council 58, 59 Human Smuggling 22-23, 49 Human Trafficking 22-23, 49, 77, 87

Index

I ILO 17, 28-56 Accommodation of Crews Convention 85 Declaration on Fundamental Principles and Rights at Work 34 Declaration of Philadelphia 28 Declaration on Social Justice for a Fair Globalisation 81 Domestic Workers Convention 44-45 Equality of Treatment Convention 41-42 Freedom of Association and Protection of the Right to Organise Convention 54-55 Labour Inspection Convention 45 Migrant Workers Convention 35-39, 41, 43, 46, 49, 52-3, 56, 66, 70, 74-5, 84, 85 Migration for Employment Convention 35-36, 38-41, 43, 46, 49, 56, 66, 70, 74, 84 Multilateral Framework on Labour Migration 29, 30,46, 50, 74 Plan of Action for Migrant Workers 48-49 Private Employment Agencies Convention 43 Social Security Convention 41-42 Immigration 1, 16, 19, 36, 46, 53, 61, 62, 65, 68, 70, 73, 80, 81, 84, 89, 90, 112, 113, 114, 120, 121, 123, 126, 127, 128, 129, 160, 162, 185, 186, 189-193, 203, 208, 212-3, 215, 218, 219, 220-1, 228, 233, 237, 241, 244, 249, 252, 255, 256, 258, 260 Integration 10, 29, 30, 37, 40, 50, 65, 71, 73, 77, 79, 80, 91-110, 114, 156, 183, 184, 191, 212, 223-259 civic programmes 91-2, 93, 94, 96-101, 104, 110 Inter-American Commission on Human Rights 60-1 International Agenda for Migration Management (IAMM) 75 International Convention on the Protection of Rights of all Migrant Workers and Members of their Families (ICRMW) 29, 37-39, 51-59, 70, 74, 84, 85, 103, 150

International Covenant on Civil and Political Rights (ICCPR) 8, 52-4, 102-3, 149-152, 155-6, 161, 163-170, 171, 172-3, 1756, 202, 211, 216-7 International Dialogue on Migration (IDM) 76 International Organisation for Migration (IOM) 75, 77, 90, 224 Irregular Migration 22, 81

J Jus Sanguinis 9, 61 Jus Soli 9, 61

L Lima Process 79

M Mercado Común del Sur (MERCOSUR) 249, 251-4, 257

N Nationality 1-11, 33, 62, 63, 68, 80, 82, 99, 100, 105, 106, 107, 117, 129, 143, 152, 159, 161, 162, 163-164, 166-7,186, 191, 202, 211, 212, 215, 226, 227, 228, 231, 234, 235, 237, 246, 253 multiple nationality 1, 2, 9, 190 NATO Status of Forces Agreement 208 Naturalisation 3-5, 7, 10, 11, 93, 94, 97, 100, 105, 159 Non-refoulement 61, 116-7, 215, 216, 222, 265 Nordic Common Labour Market Agreement 234-5 Nordic Cooperation 234-5 Nordic Council 252, 259 North American Free Trade Agreement (NAFTA) 225, 249

O Organisation of American States (OAS) 60, 62, 157 Organisation of Central American States 256

P Puebla Process 79

R Readmission 7, 90, 229, 232, 233

301

302

Index Re-entry 128, 221 Refugees 17, 31, 42, 66, 73, 83, 85, 87, 111-115, 166, 179, 182. 185-187, 195, 215, 216, 242, 264, 265, 266, 277-8 Regional Consultative Processes (RCPs) 77-79 Regional Economic Communities (RECs) 238 Regional International Organisations 223-260 Repatriation 45, 90, 152, 173 Residence 1, 2, 4, 5, 6, 9-11, 30, 31, 54, 65, 66, 67, 81, 82, 85, 86, 89, 91, 92, 97, 100, 106, 121, 125, 129, 130, 132, 133, 137, 183-5, 186 , 190, 194, 197, 199, 202, 207, 208, 210, 212, 213-4, 217, 219-221, 227, 230, 231, 234-5, 237, 240-1, 243-247, 250, 252, 253, 257, 258, 259 Right to Leave 143-177

S Santiago Declaration 253 Schengen 225, 226, 229, 230, 232, 233, 235, 236, 237, 256 Borders Code 116 Social Security 9, 32, 36, 37, 41-43, 63, 67, 81-90, 231, 236, 245, 250, 252, 253, 255 Southern African Development Community (SADC) 239, 246-8 Status of Forces Agreements (SOFAs) 208-9 Status of Mission Agreements (SOMAs) 208-9 Stockholm Programme 213 Strasbourg Declaration on the Right to Leave and Return 154 Students 2, 21, 54, 66, 93, 226, 227, 253

T Tampere Programme 212 Treaty on European Union (TEU) 68, 119, 120, 140, 212, 263, 26, 268 Treaty on the Functioning of the EU (TFEU) 6, 65, 156, 162, 226, 227, 234, 265, 267

U Union économique et monétaire Ouest Africaine (UEMOA) 242-3

Union of South American Nations, USAN (Unión de Naciones Suramericanas, UNASUR) 257, 259 United Nations (UN) 210 Commission on Human Rights 58 Convention on Refugees 83, 85, 195 Convention on the Rights of the Child 103, 150, 221 Convention on Stateless Persons 83-84 Convention on Special Missions 209 Convention on the Status of Refugees, See Geneva Convention on the Status of Refugees Convention on the Suppression and Punishment of the Crime of Apartheid 150 Convention on the Rights of the Child 103, 150, 221, 268 Convention on the Status of Refugees 85, 87, 112, 116 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief 103-4 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities 103-4 Human Rights Committee 8, 147, 155, 167, 170, 212, 216-7 International Covenant on Civil and Political Rights (ICCPR) 8, 52-4, 102-3, 149-152, 155-6, 161, 163-170, 171, 172-3, 175-6, 202, 211, 216-7 on the Elimination of All forms of Racial Discrimination 102-3, 149 International Convention on the Protection of Rights of all Migrant Workers and Members of their Families (ICRMW) 29, 37-39, 51-59, 70, 74, 84, 85, 103, 150 International Covenant on Economic, Social and Cultural Rights (ICESCR) 37, 52, 54, 102-3 United Nations Educational, Scientific and Cultural Organization (UNESCO) 21, 51, 52, 57, 103,109

Index Declaration on the Principles of International Cultural Cooperation 103-4 Declaration on Race and Racial Prejudice 103-4 United Nations High Commissioner for Refugees (UNHCR) 13, 114, 262, 263, 273-5 United Nations Refugee Agency (UNHCR) 114, 262-3, 273-5 Universal Declaration of Human Rights (UDHR) 37, 52, 54, 102-103, 104, 112, 149, 157, 158, 160, 163, 164, 169, 265 Universal Periodic Review (UPR) 58

V Vaduz Convention 230 Vienna Convention on Diplomatic Relations 150, 203-207 Vienna Convention on the Law of Treaties 138, 169 Visegrad group 232

303