Migration Control Policies Research Articles

Niger – Europe’s border guard? Limits to the externalization of the European Union’s migration policy

ABSTRACT For the past 30 years, the European Union has ‘externalized’ its migration management policy to third countries. The article focuses on the implementation of the EU’s migration control policy in Niger in West Africa. Implementation of the control measures made the EU dependent on cooperation with national authorities of Niger. The article shows that both parties benefitted from cooperating. The number of migrants decreased significantly and the government in Niger received substantial amounts of economic aid and training of its security forces. However, the implementation of the control measures met significant obstacles because migration and transportation of migrants was a huge source of income to many people in Niger. While the rigorous implementation led to a drastic reduction in the number of registered migrants travelling north of Agadez, it increased the level of illegal migration, migrants’ vulnerability, corruption and instability in the border region between Niger and Libya.

La “política de la hostilidad” en Argentina: detención, expulsión y rechazo en frontera

Este artículo tiene como objetivo analizar las transformaciones producidas en el campo de las políticas de control migratorio en el contexto argentino reciente. Se propone la noción de “política de la hostilidad” para caracterizar un modo específico de intervención política basado en la espectacularización, la expansión y la intensificación del control de las migraciones. Se sostiene que los principales cambios están relacionados con la reconfiguración del régimen de control de la “ilegalidad” migrante que ha tenido lugar a partir de intervenciones específicas sobre la detención, la expulsión y el rechazo en frontera. Con base en una metodología cualitativa que articula observación participante, entrevistas y diversas fuentes documentales, se analizan procesos, escenas, acontecimientos, intervenciones y conflictos vinculados específicamente con la detención, la expulsión y el rechazo en frontera. El análisis presta especial atención a la emergencia de nuevas espacialidades y temporalidades del control migratorio y fronterizo.

Unseen Costs: The Direct and Indirect Impact of U.S. Immigration Policies on Child and Adolescent Health and Well-Being.

Shifts in migration and border control policies may increase the likelihood of trauma exposure related to child–parent separation and result in costs to the health system and society. In the present study, we estimated direct and indirect costs per child as well as overall cohort costs of border control policies on migrant children and adolescents who were separated from their parents, detained, and placed in the custody of the United States following the implementation of the 2018 Zero Tolerance Policy. Economic modeling techniques, including a Markov process and Monte Carlo simulation, based on data from the National Child Traumatic Stress Network's Core Data Set (N = 458 migrant youth) and published studies were used to estimate economic costs associated with three immigration policies: No Detention, Family Detention, and Zero Tolerance. Clinical evaluation data on mental health symptoms and disorders were used to estimate the initial health state and risks associated with additional trauma exposure for each scenario. The total direct and indirect costs per child were conservatively estimated at $33,008, $33,790, and $34,544 after 5 years for No Detention, Family Detention, and Zero Tolerance, respectively. From a health system perspective, annual estimated spending increases ranged from $1.5 million to $14.9 million for Family Detention and $2.8 million to $29.3 million for Zero Tolerance compared to baseline spending under the No Detention scenario. Border control policies that increase the likelihood of child and adolescent trauma exposure are not only morally troubling but may also create additional economic concerns in the form of direct health care costs and indirect societal costs.

‘If you don’t have documents or a legal procedure, you are out!’ Making humanitarian organizations partner in migration control

The paradoxical merger of humanitarian care and securitization imperatives can be seen not only at external and externalized borders, but also at the internal borders in the Netherlands. Here, humanitarian organizations that sprang up to support migrants without a legal status in response to – and given their disagreement with – the state’s exclusionary migration policies have become involved in migration control. During a gradual and subtle responsibilization process, the Dutch authorities have used specific measures and redirected monetary flows in order to incorporate these organizations into its broader migration control policies. This has resulted in a decrease in the number of support organizations for unauthorized migrants, a reduction in their independence and autonomy, and an increased focus on selection and return. Ethnographic fieldwork amongst unauthorized migrants illustrates the consequences of this exclusionary control. These migrants experience exclusion, selection and enforcement by humanitarian organizations and doubt the trustworthiness of these organizations. This development seems to fit in with the broader trend of European states disarming humanitarian organizations for unauthorized migrants by either responsibilizing or criminalizing them. However, these strategies are not without consequences because they run the risk that unauthorized migrants will further withdraw and turn away from this type of assistance altogether. We use both a humanitarian and a pragmatic perspective to argue that it would make sense for states either to allow organizations to continue their – uncompromised and unconditional – support for unauthorized migrants or to adapt their migration policies in such a way that humanitarian support becomes redundant.

Políticas de control de la movilidad humana. Las expulsiones colectivas

En este artículo se desarrollará un análisis, delimitado al contexto europeo, sobre cómo las expulsiones colectivas representan una vulneración de derechos humanos, cuál es su impacto y cuál su tratamiento jurídico y jurisprudencial. Para ello se analizarán tres aspectos concretos: en primer lugar, el devenir de la “securitización” de las políticas de control migratorio y su externalización. En segundo lugar, se realizará un estudio de las expulsiones en general, como política de control migratorio, para analizar el caso específico de las expulsiones colectivas. Y, en tercer lugar, se analizará la política migratoria concretada a partir de la firma de convenios de readmisión de la UE o los Estados miembros con países de tránsito y origen, haciendo una breve mención al convenio bilateral firmado por España con Marruecos, con especial atención a la puesta en práctica y la regulación normativa de las devoluciones en caliente.

Containment Instead of Refoulement: Shifting State Responsibility in the Age of Cooperative Migration Control?

Abstract Containment policies whereby destination States provide funding, equipment and training to transit States that intercept refugees on their behalf suggest that destination States try to circumvent the prohibition of refoulement and raise the question to what extent destination States can avoid responsibility for violations of the rights of migrants and refugees by cooperating with transit States. Answering this question requires broadening the analysis beyond the principle of non-refoulement, including not only international human rights law, especially the right to leave and the concept of jurisdiction, but also the law of State responsibility, notably the prohibition of complicity. This article argues that, although it remains debatable whether the principle of non-refoulement applies when transit States intercept migrants and refugees on behalf of sponsoring destination States, the wider network of international law rules constrains the latter’s ability to avoid responsibility when implementing cooperative migration control policies.

Регулирование внешних миграционных процессов молодежи в странах Центральной Азии (Казахстан, Кыргызстан, Узбекистан, Таджикистан)

Young people make up a significant share of migrants in the modern world. The research featured the problems of migration control regarding the young population of Central Asia. The paper focuses on the causes and effects of this type of migration, as well as the means used by the authorities of Kazakhstan, Kyrgyzstan, Uzbekistan, and Tajikistan to control it. External migration has become a significant problem for both host countries and sending states. Therefore, new effective regulation methods have to be developed. The research objective was to assess the youth migration control in Central Asia, as well as to identify the motives behind this process, including the phenomenon of one-way migration. The problem of migration in the countries of Central Asia proved to be a highly-researched issue. The author used the methods of quantitative and theoretical research, as well as legal methods (formally logical) and sociological methods (statistical data and expert opinions). The work is based on a comparative analysis of regulatory documents in the field of migration and youth policy, as well as the methods and institutions that control migration processes in Central Asia. The article describes the growth rate of migration, the positive and negative consequences of youth migration, and the impact of youth migration on the socio-demographic, economic, and political development of Central Asia, as well as on the human resources in the related countries. This research contributes to the development of a more effective conceptual and doctrinal framework of migration control and youth policy in Central Asia as it helps to identify the shortcomings of the existing legal system.

International Criminal Law and the Violence against Migrants

AbstractShould we use the language of international criminal law (ICL) to discuss, analyze, and address Western policies of migration control? Such policies have included or resulted in indefinite and inhumane detention, deportations, including through practices of push- and pull-backs and numerous deaths of migrants attempting to cross land or sea borders. And yet, recourse to ICL's conceptual and rhetorical apparatus, often reserved for “unimaginable atrocities,” may seem ill-fitting and an emotive stretch of doctrine. Drawing from international strategic litigation practice on Australian and European policies, this article examines whether the legal concept of crimes against humanity can apply to the deaths, detention, and deportation of migrants, as part and consequence of Western policies of migration control. As migration control policies involve increasingly sophisticated practices of outsourcing and responsibility avoidance, I further ask whether the tools ICL has developed to describe system criminality can trace individual liability against the distance created by such policies. I also inquire into the potential that the transnational nature of migration and the spreading of anti-migration policies have in activating the jurisdiction of courts and the prioritization of the role of the International Criminal Court. Finally, I consider the danger of fetishizing an international punitive approach, before offering some thoughts that aim to bridge a critical approach to international criminal law with its use in meaningful strategic litigation. Throughout the Article, I argue that applying the categories of ICL to Western policies of migration control can contribute to revealing both the potential and the limits of the regime and its institutions, as well as the structures of asymmetry and injustice present both in anti-migration policies and in international criminal law itself.

Migration and the Rule of (Human Rights) Law: Two ‘Crises’ Looking in the Same Mirror

This article will attempt to demonstrate the interrelationship between two ‘crises’ that the European Union is facing: the so-called ‘migration’ or ‘refugee crisis’ and the crisis of the principle of the rule of law. In particular, the two crises find their point of connection in the responses to migratory flows put in place by the EU and some of its Member States. The increasing migratory pressure on European external borders has induced some governments to adopt a restrictive and security-driven approach, carried out, on the one hand, by reinforcing border controls and surveillance, and, on the other, by seeking the cooperation of non-EU countries in order to curb migratory flows, contain departures, and tackle the movements of migrants towards Europe. These ‘securitisation’ and ‘externalisation’ strategies are in contrast with the principle of the rule of law under two perspectives: on the one hand, they violate some of its essential components, such as transparency, legal and procedural certainty, democratic participation, and control; on the other, they breach the same principle insofar as they lead to severe human rights violations. As for the first aspect, migration and border control policies have been put in place by frontline States through a growing proliferation of atypical, informal, and non-transparent measures of migration governance, which, sounding ‘legal’ without actually being so, allow legislative, procedural and democratic frames to be avoided. Examples in this sense may be identified in the so-called EU-Turkey Statement or in the informal, over-simplified cooperation arrangements concluded by some EU frontline Member States with African countries, as in the case of Italy and Niger. As for the second aspect, the impact on the rule of (human rights) law of the response of some EU Member States to the migration crisis may be measured through the case law of the European Court of Human Rights and, more specifically, by considering the decisions concerning the most severe violations of migrants’ rights, including those of the prohibitions of refoulement and of collective expulsion, as well as cases of illegal detention and deprivation of liberty. Keywords: rule of law, refugee crisis, refoulement, collective expulsion, detention, European Court of Human Rights, European Union. This work is licensed under the Creative Commons Attribution − Non-Commercial − No Derivatives 4.0 International License. Suggested citation: F L Gatta, ‘Migration and the Rule of (Human Rights) Law: Two ‘Crises’ Looking in the Same Mirror’ (2019) 15 CYELP 99.

Containment instead of Refoulement: Shifting State Responsibility in the Age of Cooperative Migration Control?

Containment policies whereby destination States provide funding, equipment and training to transit States that intercept refugees on their behalf suggest that destination States try to circumvent the prohibition of refoulement and raise the question to what extent destination States can avoid responsibility for violations of the rights of migrants and refugees by cooperating with transit States. Answering this question requires broadening the analysis beyond the principle of non-refoulement, including not only international human rights law, especially the right to leave and the concept of jurisdiction, but also the law of State responsibility, notably the prohibition of complicity. This article argues that, although it remains debatable whether the principle of non-refoulement applies when transit States intercept migrants and refugees on behalf of sponsoring destination States, the wider network of international law rules constrains the latter’s ability to avoid responsibility when implementing cooperative migration control policies.

The threat of the ‘returning foreign fighter’: The securitization of EU migration and border control policy

This article analyses the European Union’s response to the threat of the ‘returning foreign fighter’ (referred to with increasing frequency as the ‘foreign terrorist fighter’), arguing that it has been characterized by a move to (re)frame migration and border control as essential aspects of EU counter-terrorism policy. The article offers three important observations on the significance of this move. First, it critiques the way in which the EU’s response to this problem is based upon and reinforces a narrow understanding of returning foreign fighters. Second, it argues that the EU has invoked the threat from returning foreign fighters not with the sole intention of preventing terrorism but rather as part of the ongoing securitization of migration and the EU border. Third, it suggests that the threat from returning foreign fighters has been invoked as a way of further legitimizing the EU’s emerging role as a security actor and its embrace of preemptive security practice. The article argues throughout that the move to construct the returning foreign fighter issue in this way has important political and social implications for all categories of migrant, with migrant populations now deemed a potential source of terrorist threat.

From controlling mobilities to control over women\u2019s bodies: gendered effects of EU border externalization in Morocco

Taking the perspective of the Central and West African women blocked at the Moroccan-Spanish border, reveals how EU policies, in exporting their anti-migrant war to African countries, seem to have reinforced a continuum of male dominance: by creating, along the migratory route, a succession of spaces where African women must resist and/or succumb to multiple relations of power and domination in order to be able to cross the securitized borders, controlled by a plurality of actors but often all men. Breaking with binary and essentialist views that often present them as merely passive subjects of their migration, the women interviewed disclose hidden mechanisms and effects of the externalization of EU migration control policies on the bodies and lives of those who fight for their freedom of movement. Based on 30-months of ethnographic research in Morocco and the Spanish enclaves of Ceuta and Melilla, this article aims to show how EU border externalization provokes racialized and gendered vulnerabilization of people seeking mobility and notably reinforces gender-based violence against migrant women. There are several levels of violence against women seeking mobility at borders, we will focus on two: violence emanating from certain men who are part of the organization of the crossing, and violence exerted by the States policing the border. Both of these cases illustrate the interaction between mobility control policies and control over women’s bodies as an effect of border externalization.

Migraciones internacionales, fronteras y Estados. ¿Cómo interpretar el régimen de frontera desde América del Sur?

En el artículo nos preguntamos cómo interpretar el régimen de frontera desde América del Sur. Para esto, reflexionamos sobre la posible relación entre migraciones internacionales, Estados y fronteras en el campo de los estudios migratorios, con el fin de construir categorías analíticamente situadas. Desde una metodología cualitativa, analizamos un conjunto de documentos vinculados a esta temática: declaraciones finales e informes técnicos de la Conferencia Suramericana sobre Migraciones (csm), así como resoluciones del Mercado Común del Sur (Mercosur) y de la Comunidad Andina e Naciones (can). Para el análisis de estos documentos, e interpretar el régimen de frontera de la región, construimos tres puntos de apoyo: la externalización asociada al proceso de regionalización de las políticas de control migratorio en Sudamérica; el cruce de un territorio nacional a otro, vinculado a los controles en puntos de frontera; y, por último, las fronteras de permanencia, enlazadas a los mecanismos estatales que estipulan los modos de residir “en destino”. Sudamérica se constituye como unasubregión del régimen de frontera global, que favorece y estimula, no sin conflictos y tensiones, políticas de control ordenado, integrado y planificado de las migraciones. En “las fronteras”, los controles distinguen a los migrantes pertenecientes a un Estado miembro de la can, del Mercosur o uno extraregional. De este modo, los sujetos quedan supeditados al estrato político que ocupa el Estado del cual son parte al fijar un modo diferencial para ingresar y permanecer “en destino” según origen nacional.

Social Policies as a Tool of Migration Control

Migration-control policies have become a topic of considerable debate among political actors in many European countries, increasingly, in the aftermath of 2015. Debates and policy measures focus on...

From Italian Pushbacks to Libyan Pullbacks: Is Hirsi 2.0 in the Making in Strasbourg?

Abstract This article discusses the application that was recently lodged with the European Court of Human Rights alleging that Italy is responsible for its involvement in pullbacks by the Libyan coast guard. It places the case in the wider context of migration control policies and the Hirsi case in particular. The article examines different pullback scenarios which feature in the application lodged with the Court, and discusses different ways in which the Court can address the issues raised. The analysis focuses particularly on the question whether the Court is likely to find that Italy exercises jurisdiction and whether Italy could incur derived responsibility for its involvement in the pullbacks. The article concludes by suggesting that holding Italy responsible would require the Court to move beyond established precedent in its case-law. Although this is a move which can be difficult to make given the political tide in Europe, it would not be the first time that the Court takes its case-law, and thereby human rights protection, a step further.

Controlling Migration through International Cooperation

Efforts by States to prevent migrants and refugees from reaching their territory has been a defining feature of the developed world’s migration policies since the mid-1980s. Throughout this period the nature of migration control policies has continuously changed and developed—often adding new instruments or refining the existing arsenal of mechanisms. The current generation of migration control measures is further characterised by international cooperation, with the concurrent involvement of partner States in regions of transit and origin. This article engages with how migration is controlled through international cooperation and the challenges it poses for ensuring the continued applicability of refugee and human rights law. We also consider more broadly which consequences the international cooperation on migration control has for the role and development of international law. Finally, we introduce the contributions to this special issue.

Italy’s New Migration Control Policy: Stemming the Flow of Migrants From Libya Without Regard for Their Human Rights

During 2017, the Italian Government adopted a series of controversial measures in order to stem the increasing flow of migrants from Libya, with the full backing of the European Union. The Memorandum of Understanding between Italy and the Libyan Government of National Accord of 2 February 2017 provided the legal basis for most of them. In actual fact, those measures rapidly led to a significant reduction in the number of migrants arriving in Italy, while increasing that of migrants intercepted at sea by the Libyan Coast Guard and transferred to the detention centres managed by the Libyan Department for Combatting Illegal Immigration. As a result, the already inhuman conditions of detention therein further worsened. This article investigates whether and to what extent Italy can be held responsible under international law for human rights violations against migrants on Libyan soil and, at the hands of the Libyan Coast Guard, at sea. It is submitted that, owing to the active support to the Libyan Coast Guard and the adoption of a code of conduct restricting NGOs’ search and rescue activities, Italy is complicit in violations of the prohibition of torture and ill-treatment against migrants intercepted at sea and forcibly returned to Libya. It is also stressed that Italy would be responsible for directly violating the prohibition on torture and ill-treatment enshrined in Article 3 of the European Convention on Human Rights, if it were ascertained that Italian military personnel exercise de facto control over Libyan Coast Guard vessels transporting migrants back to Libyan territory. In the light of this, the author highlights the urgent need for the Italian Government to rethink its migration control policy, amending the said Memorandum of Understanding and modifying the aforementioned measures so as to prioritise the protection of migrants’ fundamental human rights.

Peruanos en el cruce de frontera hacia Argentina. Reflexiones sobre las políticas de control Migratorio desde las subjetividades de los migrantes

Resumen El objetivo de este artículo es analizar las políticas de control migratorio desde las subjetividades de los migrantes, al tomar como punto de análisis el cruce de frontera. Específicamente, se pregunta cómo los migrantes peruanos atraviesan, disputan y negocian su ingreso a territorio argentino, en los cruces de fronteras. El desarrollo de este artículo se sustenta en una metodología cualitativa, basada fundamentalmente en entrevistas en profundidad con peruanos y peruanas que migraron desde los años 50 en adelante. Se construye una periodización de esta migración hacia Argentina y se establece un conjunto de hitos sobre cómo los peruanos experimentan las políticas de control. Los entrevistados se perciben como sobrevivientes de estos controles, al entenderlos como condición sine qua non para el cruce hacia Argentina.

THE TEMPORARY FOREIGN WORKER PROGRAM IN CANADA: LABOUR MARKET SOLUTION OR OPEN DOOR FOR ABUSE?

One of the most controversial and often-discussed aspects of the modern global migration system is the issue of precarious labour in the context of migration. In both unauthorized migrants, in particular in the United States and Europe, and authorized guest worker regimes, most prominent in the GulfMonarchies, employers and firms have found large pools of labour not subject to the same legal and social norms as the native workforce. This trend, which has existed since at least the post-World War II period but has been rapidly increasing in the 21st century, has not been without controversy, from a variety of political perspectives. Precarious workers in these conditions are sometimes accused of “stealing” jobs from native-born workers or of driving down working conditions in the receiving countries. Conversely, many NGOs concerned with human rights have drawn attention to the various abusive and exploitative elements embedded within these regimes. Workers are often tied to one particular employer, may not be subject to minimum wage or other workplace legislation and often live in squalid conditions.This paper will investigate the various controversies around the Canadian Temporary ForeignWorker Program (TFWP), with a particular focus on the effects, or lack thereof, of recent reforms to the program. In doing so, it will compare the policies and application of Canada’s program to other, similar programs in developed countries in order to create an accurate portrait of the programs stated and implicit goals and how successful it is achieving them. In addition, the paper will attempt to locate the TFWP’s place within the wider system of migration control policy in the Canadian context, and the extent to which it is congruent with the broader stated values of these policies.

Migrant Smuggling: Novel Insights and Implications for Migration Control Policies

This article offers a critical review of how migrant smuggling arises out of restrictive migration policies and how it has become increasingly sophisticated and professionalized. Reflecting on the innovative empirical findings presented in the contributions to this volume of The ANNALS, I highlight how migration control has hardened borders, disrupted cross-border flows of goods and people, and transformed local economies. Understanding better the relationship between migration control policies and migrant smuggling and the social and moral nature of the agent-customer transactions has important implications for the policies adopted to address irregular migration and migrant smuggling on both sides of the Atlantic.