IMMIGRATION

Lesson 1: Introduction and concepts.

KEY CONCEPTS
Migration: The movement of a person or a group of persons, wither across an
international border, or within a State. It is a population movement, encompassing any
kind of movement of people, whatever its length, composition and causes; it includes
migration of refugees, displaced persons, economic migrants, and persons moving
from other purposes, including family reunification. It disregards the direction of
movement.
- Orderly migration: The movement of a person from his or her usual place of
residence to a new place of residence, in keeping with the laws and regulations
governing exit of the country of origin and travel, transit and entry into the
destination or host country.
- Irregular migration: Movement that takes place outside the regulatory norms
of the sending, transit and receiving countries.
There is no clear or universally accepted definition of irregular
migration.
From the perspective of destination countries it is entry, stay or work in
a country without the necessary authorization or documents required
under immigrants regulations.
From the perspective of a sending country, the irregularity is for
example seen in cases in which a person crosses an international
boundary without a valid passport or travel document or does not fulfil
the administrative requirements for leaving the country.
There is, however, a tendency to restrict the use of term illegal
migration to cases of smuggling of migrants and trafficking in persons.
- Unauthorized migrants: a person who, owing to illegal entry or expiry of
her/his visa, lacks legal status in a transit or host country (undocumented,
irregular, clandestine or illegal migrant).
International visitors: person who travels to another country but doesnt change
country or usual residence (tourists, business travelers, religious pilgrim, medical
care). Usually admitted for a limited period of time. They are NOT considered
migrants.
Border management: Facilitation of authorized flows of persons, including business
people, tourists, migrants and refugees, across a border and the detection and
prevention of irregular entry of non-nationals into a given country. Measures to
manage borders include:
- Imposition by States of Visa requirements.

Carrier sanctions against transportation companies bringing irregular migrants

to the territory.
Interdictions at sea.

Forced migration: A migratory movement in which an element of coercion exists,

including threats to life and livelihood, whether arising from natural or man-made
causes (e.g. movements of refugees and internally displaced persons as well as people
displaced by natural or environmental disasters, chemical or nuclear disasters, famine,
or development projects).
Freedom of movement: a human right comprising three basic elements: freedom of
movement within the territory of a country (Art. 13(1), UDHR 1948); the right to leave
any country and the right to return to his or her own country (Art.13(2) UDHR 1948).
Asylum seeker: a person who seeks safety from persecution or serious harm in a
country other than his or her own and awaits a decision on the application for refugee
status under relevant international and national instruments. In case of a negative
decision, the person must leave the country and may be expelled, as may any nonnational in an irregular or unlawful situation, unless permission to stay is provided on
humanitarian or other related grounds.
Refugee: a person who, owing to a well-founded fear of persecution for reasons of
race, religion, nationality, membership of a particular social group or political opinions,
is outside the country of his nationality and is unable, owing to such fear, is unwilling
to avail himself of the protection of that country. (Art.1 (A) (2), Convention relating to
the Status of Refugees, Art 1A (2) 1951 as modified by the 1967 Protocol).
Country of origin: country that is a source of migratory flows (regular or irregular)
Country of transit: the country through which migratory flows move (regular or
irregular)
Country of destination: the country that is the destination of migratory flows (legal
or illegal)
Country of habitual/usual residence: the country in which a person lives, that is to
say, the country in which s/he has a place to live.
Internal migration: a movement of people from one area of the country to another
for purpose or with effect of establishing a new residence. It may be temporary or
permanent. (Rural to urban migration)
Internally Displaced Person (IDP): persons or groups of persons who have been
forced or obligated to flee or to leave their homes or places of habitual residence, in
particular as a result of or in order to avoid the effects of armed conflict, situations of
generalized violence, violations of human rights or natural (or) human-made disasters,
and who have not crossed an internationally recognized State border.

Trafficking in persons/human trafficking: the recruitment, transportation, transfer,

harboring or receipt of persons, by means of the threat or use of force or other forms
of coercion, of abduction, or fraud, of deception, of the abuse of power or of a position
of vulnerability or the giving or receiving of payments or benefits to achieve the
consent of a person having control over another person, for the purpose of
exploitation. Trafficking in persons can take place within the borders of one State or
may have transnational character.

Smuggling: the procurement, in order to obtain, directly or indirectly, a financial or

other material benefit, of the illegal entry of a person into a State Party of which the
person is not a national or a permanent resident. Smuggling contrary to trafficking
does not require an element of exploitation, coercion or violation of human rights.
Xenophobia: at the international level, no universally accepted definition of
xenophobia exists, though it can be described as attitudes, prejudices and behavior
that reject, exclude and often vilify persons, based on the perception that they are
outsiders or foreigners to the community, society or national identity.
Racial discrimination: discriminatory or abusive behavior towards members of
another race. Is a distinction, exclusion, restriction or preference based on race, color,
descent, or national or ethnic origin which has the purpose or effect of nullifying or
impairing the recognition, enjoyment or exercise, on an equal footing, of human rights
and fundamental freedoms in the political, economic, social, cultural or any other field
of public life.

WHO ARE MIGRANTS?

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There is no common accepted definition.

UN Recommendations (1998 and 2007) consider a migrant a person that

changes his/her place of usual residence. It can be:
Temporary or permanent.
Authorized or unauthorized.
For different reasons.

International migrant: is considered, in UN Recommendations (1998 and 2007)

as person that changes his/her country of usual residence.

Internal migrant: person changing his/her usual residence but within the same
country. Usually refers to:
Rural to urban migration.
Internally displaced persons.

Depending on the point of view:

Immigrant: someone that does not belong to your country arrives.
Emigrant: someone that belongs to your country departures.

What organizations use change in residence to define migrants?

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UN, EU, International Organization for Migration, WB.

But there are different criteria:

Foreign born: depending on country of birth.
Foreign citizen: depending on country of citizenship.
Minimum duration of residence.
Type of residence visas for foreigners:
Immigrants: permanent residence.
Non-immigrants: temporary workers & visitors.
Ethnicity or religion.
Others or a combination

There is great diversity among migrants: culture, language, reasons for migration,
migration pattern, education, occupation, legal status, health
Main categories of migrants: migrant workers, refugees, asylum-seekers, human
trafficking, unauthorized migrants and international students.
Mobile populations: Individuals who move in geographic space for:
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Different reasons: economic/better future, family reunification, forced

Different distances

Different administrative boundaries

Different periods of time.

Global migration trends and facts:

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Migration Flows (2000s) have 4x increase in volume as compared to 196075.

More developed regions share more international migrants than less.

There is more migration south to north than: south to south, north to north,
or north to south.

They are usually in working age (20-64 years represent 74% of the total)

Women represent 48% of all international migrants.

Countries with higher % of migrants: USA, Russia, Germany, Saudi Arabia,

UAE, France, Canada, Australia and Spain.

Volume and complexity of migration are likely to continue increasing.

Receiving country is affected by changes in:

Increase population size

Changes in gender and age distribution

Increased population fertility

Changes in race/ethnic distribution

High proportion of workforce

LEGAL SOURCES:
INTERNATIONAL REGULATION:
International Migration Law (IML): it is an umbrella term covering a variety of
principles and rules that together regulate the international obligations of States with
regard to migrants. Such broad range of principles and rules belong to numerous
branches of international law such as human rights law, humanitarian law, labor law,
refugee law, consular law and maritime law.
The human rights based approach:
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Constitutes a framework of action, as well as a set of tools for migration

policy-makers.

Is based on the international framework of human rights law as

provided in the core human rights instruments.

Upholds the principle of non-discrimination.

Establishes accountability between duty-bearers and rights-holders.

Focuses on vulnerability, marginalization and exclusion.

Emphasizes participation and empowerment.

International Covenant on Civil and Political Rights (General

Assembly Resolution of 1966).
Article 12:
1. Everyone lawfully within the territory of a State shall, within
that territory, have the right to liberty of movement and
freedom to choose his residence.
2. Everyone should be free to leave any country including his
own.
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, public
health or morals or the rights and freedoms of others, and
are consistent with the other rights recognized in the present
Covenant.

4. No one shall be arbitrarily deprived of the right to enter his

own country.
Article 13:
1. An alien lawfully in the territory of a State Party to the
present Covenant may be expelled therefrom only in
pursuance of a decision reached in accordance with law and
shall, except where compelling reasons of national security
otherwise require, be allowed to submit the reasons against
his expulsion and to have his case reviewed by, and be
represented for the purpose before, the competent
authority or a person or persons specifically designated by
the competent authority.

Universal Declaration of Human Rights (1948).

Preamble: recognition of the inherent dignity and of the equal
and inalienable rights of all members of the human family.
Article1: all human beings are born free and equal in dignity and
rights.
Article2: everyone is entitled to all the rights and freedoms set
forth in this declaration without distinction of any kind.

Non-discrimination: any distinction (sex, color, race, opinion) implying

a limitation on the enjoyment of any universal human right is consider
against the declaration.
The international bill of human rights allows only few limited
exceptions to the principle of equality between national and nonnationals, and between different groups of non-nationals.

International minimum standards: the doctrine under which nonnationals benefit from a group of rights directly determined by public
international law, independently of rights internally determined by the State in
which the non-national finds him or herself.
A state is required to observe minimum standards set by international law
with respect to treatment of non-nationals present on its territory (or the
property of such persons), for example: denial of justice, unwarranted delay or
obstruction of access to courts are in breach of international minimum standards
required by international law).
In some cases, the level of protection guaranteed by the international
minimum standard may be superior to that standard which the State grants its
own nationals.
NATIONAL REGULATION:

State obligations to non-nationals:

 Human rights are inalienable although not all are absolute.

Derogation is possible in times of emergency (art.4 ICCPR)
Human rights instruments make some distinctions between national and
non-nationals, regular and irregular migrants.
Differences Foreign-National:
Right: leave the State.
No right: to enter another State.
Universal Declaration of Human Rights:
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Article 13:
(1) Everyone has the right to freedom of movement and residence
within the borders of each state.
(2) Everyone has the right to leave any country, including his own, and
return to his country.

STATELESSNESS
It is a person who is not considered as a national by any state under the operation
of its law. They are non-nationals everywhere, what has consequences for the
enjoyment of their rights. It means to be without nationality or citizenship. There is no
legal bond of nationality between the state and the individual.
It is recognized as customary international law, or de jure statelessness.
Approximately, 10 million people are stateless. No region is unaffected by this
situation.
These people may lack access to health care, education, property rights and the
ability to move freely. They are also vulnerable to arbitrary treatment and crimes like
trafficking. Their marginalization can create tensions in society and lead to instability at
an international level, including, in extreme cases, conflict and displacement.
They also lack those rights attributable to national diplomatic protection of a State,
no inherent right of sojourn in the State of residence and no right of return in case he
or she needs it.
The facto statelessness: some persons formally possess a nationality but are in
similar situation as stateless persons. There is no universally accepted definition.
Traditionally the term was used to describe a person who, outside his/her country
of nationality, is denied diplomatic and consular protection or assistance of his/her
country. This situation occurs when the country of nationality refuses to allow a person
to return home, even though that country still formally recognizes the individual as
national. In such situation, the person may also fall under the refugee definition.
Stateless refugee: a person who is not considered as a national by any state under
the operation of its law and meets the definition of a refugee in article 1 of the 1951
Refugee Convention.
Nationality is a form of membership that results in rights and duties, for instance:

Right to enter and reside in the state (political rights)

Duty to perform military service.

Citizenship vs. nationality ???

Causes of statelessness:
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States are responsible for regulating nationality matters and deciding

who is a national and who is not.

They base their decisions on a persons connection with the country

through birth, ancestry or residence.

All stateless people have such links with at least one country, but do not
possess a nationality due to legal reasons or discrimination.

At independence, new states have to define their body of citizens:

In the past, nationality was often based on ethnicity, which led to
large populations being excluded.
Subsequent legislation often based nationality on descent, thus
forcing parents to pass on statelessness like a genetic disease.
In some countries, similar policies of exclusion were introduced well
after independence.
In practice, equality in legislation is not a guarantee for full
nationality rights where authorities refuse to issue nationality
documentation to citizens based on ethnicity, language or religion.

In many states, women do not have the same nationality rights as men:
When women cannot pass on their nationality, their children are at
a heightened risk of statelessness if they cannot legally acquire the
fathers nationality, or if he is unable or unwilling to seek nationality
for these offspring.
Furthermore, in some countries a woman cannot pass on her
nationality to her foreign husband.

Another problem is that nationality laws drafted when states are

created, or when territory is transferred (state succession), are often
limited in scope and use deadlines. As a result, many people fall through
the cracks and become stateless.

Incompatibilities in the application of two or more nationality laws can

also lead to statelessness. Meanwhile, legislation in some countries
allows loss of deprivation of nationality even where this would render a
person stateless. Making the renunciation of a previous nationality a
precondition for acquiring a new one also creates risks of statelessness.

For many people, inability to establish nationality has the same

consequences as not having a nationality at all. Birth certificates are key
element for proof of nationality as they establish both descendent and

place of birth as millions of births every year go unregistered, the risk

of statelessness increases.
Statelessness as an international concern: detrimental impact on individual lives
and family well-being, severe knock-on effect on community stability and international
relations.
What are the international community main aims?
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To avoid statelessness, for that purpose:

Understand the causes of statelessness
Gaps in nationality laws / conflicts of national laws
Arbitrary depravation of nationality
Processes relating to state succession
Common underlying factor: discrimination.
Common contributing factors: migration, lack of birth registration,
administrative obstacles.
Analyze nationality law and practice
How is nationality acquired?
Family links, territorial links (place of birth, of residence)
What gaps might there be in law?
No safeguards to prevent statelessness at birth,
loss/renunciation of only nationality is permitted, gender or
racial discrimination, poor/no procedural guarantees.
Apply relevant international standards.
Are states free to regulate nationality?
NO, international law now sets some limits on the freedom of
states to regular access to nationality.
General principles of law as non-discrimination, Human
Rights Law, 1961 Convention on the Reduction of
Statelessness.

To protect stateless people.

Convention Relating to the Status of Stateless Persons (1954)
Entered into force in 1960.
Convention on the Reduction of Statelessness (1961)
Entered into force in 1973.
But they attracted relatively few ratifications or accessions for decades.
In 2011 (50th anniversary of the 1961 convention) the UN launched a
major campaign so the number of state parties to 1954 convention was
from 65 to 80 and states parties to 1961 was from 37 to 55.

Objectives and key provisions of 1954 Convention relating to the Status of

Stateless Persons.

It is a primary international instrument adopted to date, to regulate and

improve the legal status of stateless persons.

Sets the legal framework for the standard treatments of stateless persons.

It was adopted to cover, inter alia, those stateless persons who are not
refugees and who are not, therefore, covered by the 1951 Convention
relating to the Status of Refugees or its Protocol.

Contains provisions regarding stateless persons rights and obligations

pertaining to their legal status in the country of residence.

In ensuring that such basic rights and needs are met, the Convention
provides the individual with stability and improves the quality of life of the
stateless person.

This, in turn, can prove to be of advantage to the State in which stateless

persons live, since such persons can then contribute to society, enhancing
national solidarity and stability.

Art.1 definition: For the purpose of this Convention, the term stateless
person means a person who is not considered as a national by any State
under the operation of its law.

Art.3 non-discrimination: The contracting States shall apply the provisions

of this Convention to stateless people without discrimination as to race,
religion or country of origin.

Art.28 the issue of the issue of travel documents for stateless persons is
addressed.
An individual recognized as a stateless person under terms of the
Convention should be issued an identity and travel document by the
Contracting State.
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Art.31 states that stateless persons are not to be expelled save on

grounds of national security or public order.
Expulsions are, in principle, subject to due process of law.
The Final Act of the Convention indicates that non-refoulement in
relation to danger of persecution is a generally accepted principle.

Art.32 of the Convention regulates the issue of naturalization.

The Contracting State shall as far as possible facilitate the
assimilation and naturalization of stateless persons. They shall in
particular make every effort to expedite naturalization proceedings
and to reduce as far as possible the charges and costs of such
proceedings.

The Final Act of the Convention recommends that each Contracting

State, when it recognizes as valid the reason for which a person has
renounced the protection of the State of which he is a national,
consider sympathetically the possibility of according to the person the
treatment which the convention accords to stateless persons.

This recommendation was included on behalf of de facto stateless

persons who, technically, still held a nationality but did not receive
any of the benefits generally associated with nationality, such as
national protection.

Objectives of 1961 Convention on the Reduction of Statelessness:

Specifically aimed at avoiding statelessness. The convention provides for acquisition
of nationality for those who would otherwise be stateless and who have an
appropriate link with the State through factors of birth or descent. The issues of
retention of nationality once acquired and transfer to territory are also addressed.
Not an international law on nationality, but a common framework of avoiding
statelessness.

Everyone has the right to a nationality (UDHR art.15), no one shall be arbitrarily
deprived of his nationality nor denied the right to change his nationality.
States shall introduce safeguards to prevent statelessness by granting their
nationality to persons who would otherwise be stateless and are either born in their
territory or are born abroad to one of their nationals. States shall also prevent
statelessness upon loss or deprivation of nationality.