Expanding the scope: Exploring legal options for migration

Widening pathways for legal migration has been touted as one of the ways to counter irregular migration and human smuggling. In his December 2017 report, ‘Making Migration Work for All’, United Nations Secretary General António Guterres called upon UN member states to make collective efforts to expand and strengthen legal pathways for regular migration and undertake regularization initiatives to address the presence of irregular migrants within their boundaries. On 29 January 2018, the Africa Union adopted the Protocol to the Treaty Establishing the African Economic Community Relating to Free Movement of Persons, Right of Residence and Establishment which called for increasing legal pathways for migration within the continent. The Valletta Summit on Migration, which led a political cooperation platform known as Khartoum Process called for member states to promote regular channels for migration and mobility as a means of promoting economic, human and social development. On 5 February 2018, the Zero Draft of the Global Compact for Safe, Orderly and Regular Migration (GCM) was released pending the adoption of the Compact later in 2018.  Objective Five of the GCM calls for the enhancement of the availability and flexibility of pathways for regular migration.

Against the background of increased calls for widening of legal pathways for migration, countries of asylum and destination continue to enact policies that challenge the positive impact that increased legal pathways would offer migrants. Irregular migrants continue to suffer arrest and detention, violence, human commodification, dangerous terrain and climate  while on transit through countries such as Libya and Sudan. If they do arrive at their intended destination country, irregular migrants continue to face challenges stemming out of their lack of legal status. Efforts to stop irregular migration have so far been grossly ineffective, thus the need ensure that legal migration as is being promoted by national, regional and international instruments is effective.

As it currently stands, existing legal pathways which include increased refugee resettlement and the issuance of humanitarian visas, family reunification, labour mobility and study scholarships continue to suffer increased restrictions and regulation which negatively impact on the intended benefits. The New York Declaration on Refugees and Migrants calls for increased resettlement places and other legal pathways for admission on a scale that would match the annual needs. UNHCR estimates that 8% of refugees worldwide may be in need of resettlement to third countries but only 1% are ever resettled.[1] This leaves populations in need of international protection vulnerable to irregular migration and human trafficking. Recently, some resettlement countries have lowered the number of refugees they are willing to accept for resettlement. The United States of America has routinely admitted the highest number of refugees over the years; however, it announced a lowered resettlement cap from 110,000 in 2016 to 40,000 in 2018. Having received 19,628 asylum applications in 2017, Japan only granted asylum to 20 people[2] – highlighting an eroding efficacy of refugee resettlement.

The European “migration crisis” that started in 2015 resulted in European countries effecting more restrictive policies on refugee resettlement with some countries lowering their resettlement quotas. In December 2017, Denmark suspended its participation in the UN refugee resettlement program by passing a law to that effect.[3] Denmark had since 1989 admitted 500 refugees annually through this program and this move is predicted to put additional pressure on other refugee hosting countries and could encourage irregular migration. European Union’s mandatory refugee relocation scheme has been challenged by some member states including Hungary and Slovakia which is a further demonstration of challenges that the legalisation of migration faces.

In the US, the Diversity Visa Lottery Program admits 50,000 migrants into the country each year as permanent residents. Such permanent residents are eligible for US citizenship after five years of residency and may also petition immediate family members (parents and unmarried children) to legally migrate to the US under family reunification visa criteria. There are however calls within the US government for a reform and even the abolishment of the visa program,[4] which if done, would reduce available migration channels to the US.

Contrary to calls for the increase of legal migration pathways, countries which previously admitted a large number migrants under labour mobility are also increasingly passing restrictive policies. Such policies range from the raising of minimum salaries for migrants eligible for skilled worker visas as has been the case in United Kingdom[5] to the removal of some job categories from the list of occupations that qualify migrants for labour visas as Australia did in 2017[6].

Valid passports are a key requirement for international travel (and legal migration) but they are not always accessible for potential migrants. In some countries, acquiring a passport is a lengthy and process that might be shrouded in uncertainty and bureaucracy; in cases where conflict has resulted in the disintegration of governance, passports might be inaccessible to the population. In Eritrea for example, nationals are required to demonstrate their completion of mandatory military/national service or prove their exemption from the service before they can be issued a passport. In addition to the passport, all Eritreans are by law required to obtain an exit visa from the Department of Immigration. Passports and exit visas are issued under strict restrictions and routinely denied. Persons who have not completed military service, those believed to be opposed to the government and their relatives as well as younger persons are routinely denied exit visas leaving them with little option but to engage in irregular migration.[7] Eritreans who are stationed abroad having travelled irregularly may be issued with Eritrean passports but on condition that they comply with a requirement to pay 2% of their income as Diaspora Tax. In some cases, Eritreans who have secured work and study opportunities abroad are unable to benefit from such opportunities having been denied a passport or exit visa. There are however positive developments with regional economic communities increasingly allowing regional travel without passports.

The success of legal migration as a means of countering irregular migration is pegged on the development and implementation of appropriate policies to support legal migration. Such policies should include those that ease access to travel documents (passports), removal of barriers such as exit visas and passports (where possible), access to visa application processes, lowering costs of obtaining labour permits and allocation of more humanitarian and family reunification visa slots.

[1] http://www.unhcr.org/resettlement-in-the-united-states.html accessed on 16 February 2018

[2] https://www.reuters.com/article/us-japan-immigration-refugees/japan-took-in-20-asylum-seekers-last-year-as-nearly-20000-applied-idUSKBN1FX12I accessed on 01 March 2018

[3] https://www.reuters.com/article/us-denmark-refugees/denmark-no-longer-to-automatically-accept-u-n-refugee-resettlement-quota-idUSKBN1EE277 accessed on 19 February 2018

[4] http://time.com/5005647/diversity-visa-lottery-donald-trump/ accessed on 01 March 2018

[5] https://www.theguardian.com/uk-news/2018/feb/18/uk-hits-skilled-worker-visa-cap-third-month-home-office-refuses-applications accessed on 01 March 2018

[6] https://www.theguardian.com/australia-news/2017/apr/18/australian-government-abolish-457-temporary-work-visa accessed on 01 March 2018

[7] http://www.ohchr.org/Documents/HRBodies/HRCouncil/CoIEritrea/A_HRC_29_CRP-1.pdf accessed on 19 February 2018