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A Global Compact to return migrants?

Defending commitments on regularization doesn’t mean providing permits to all people with irregular status, but instead promoting the development of more objective, clear, accessible and affordable procedures and criteria. Español

lead Fearing Trump deportation, Haitians head to Canada using an irregular crossing near the Champlain-St. Bernard de Lacolle border in hopes of finding residency in Canada. August, 2017. TNS/SIPA/Press Association.All rights reserved.As the fourth of six rounds of negotiations begins, there is a stark lack of consensus among states regarding the fundamental meaning of the Global Compact for Migration. In its current version, the text of this unprecedented agreement would prioritize returning people to their countries of origin as the main response to irregular migration.

Today, it is estimated that between 15% and 20% of migrants in the world have an irregular status – and this figure is probably far below reality. These statistics refer overwhelmingly to people who have entered the country with a regular status (as tourists, students, workers, etc.) and lost that status later. Only a minority cross the border in clandestine conditions. This situation increases the vulnerability of migrants, segregation, xenophobia and violence.

How to respond to this reality in countries of destination is one of the most controversial issues in the Global Compact negotiations. It is a challenge for the countries of the Global North, but also for those of the South, where much global migration is concentrated.

To promote safe, orderly and regular migration

According to the New York Declaration of 2016, the Global Compact must promote safe, orderly and regular migration.

An evident tension has arisen around these concepts. One perspective links them to the promotion of more dignified migration, which entails defining strategies to ensure that people who now migrate in situations of constant risk can do so safely and with regular status. This requires objectives and concrete commitments to policies such as the enhancement of regular pathways and migratory regularization, which have positive effects for migrants and the society of destination, and increase the state’s administrative capacities.

Another perspective asserts the impossibility of assuming commitments regarding regularization, arguing that the Global Compact “would be incentivizing irregular migration.” Studies challenge the widespread notion that regularization prompts an increase in migration flows. This did not happen in countries where regularization was adopted as policy. In the case of Argentina, between 2004 and the first half of 2015, nearly 2 million residency applications were resolved, but the migrant population held steady at between 4.5 and 5 percent of the national population, a figure even lower than in previous decades.

At the same time, since the first round of negotiations on the Compact, some state delegations have repeatedly requested that the text specify the “differences” between obligations and rights in relation to regular and irregular migrants, and migrants and refugees. Since the first round of negotiations on the Compact, some state delegations have repeatedly requested that the text specify the “differences” between obligations and rights in relation to regular and irregular migrants, and migrants and refugees.

Them and Us – responses to migratory irregularity

Structuring the debate this way conceals a fundamental fact when it comes to understanding what is at stake: a person’s inclusion in any of these categories depends on decisions made by the state.

It is the state that must recognize the refugee status of people covered under international and regional conventions. In all other cases, the state exercises its discretionary power to grant entry permits and residency, and to extend or transform these permits in its territory, establishing criteria and procedures for that purpose. In other words, regular migration does not exist if the state does not generate the conditions for migrants to gain access to the permits required to enter and/or remain in the country.

The revised first draft of the Global Compact has the merit of preserving some of the strengths of the initial draft (known as zero draft) and of presenting specific advances, such as keeping the commitment to enhance access to pathways for regular migration (Objective 5) – albeit in a somewhat ambiguous manner since it links them to “labor market needs”– and to ensure that migrants have equal access to social services that are essential to exercising their human rights (Objective 15).

In broad terms, in addition to these two lines of action, migratory policies contemplate two other mechanisms for addressing irregular migration:

  • *    The migratory regularization of persons with irregular status currently in the territory.
  • *    Their return to the country of origin.

However, the revised first draft (Draft Rev 1), published on March 26, makes no mention of migratory regularization. The possibility of establishing criteria and procedures for regularizing the status of people already present in a country’s territory, referred to in just one action contained in Objective 16 of the zero draft, no longer appears anywhere in the text.

This is a serious omission. Without a legal residency permit and the corresponding documentation, migrants will continue to be treated as second-class citizens, particularly to the extent that they are subject to various forms of exploitation.

The objective on return (Objective 21) has, at the same time, been consolidated as a political priority for European countries that seek to remove what they consider obstacles in the way of executing these procedures and returning migrants, particularly to the African continent. Focused on the prioritization of “voluntary return,” Objective 21 provides for the “obligation of States to readmit their own nationals.”

European priority to return migrants

So far the drafts of the Global Compact have omitted any commitment to specifying the grounds on which repatriation, deportation or expulsion cannot proceed. These measures have historically been used in response to irregular migration and have had a hugely negative impact on people’s lives.

To remedy this, migratory policies have incorporated procedures for preventing rights violations, whether due to the risks present in a migrant’s country of origin, or the rights at stake in the country of residence due to his/her length of stay, family ties or membership in groups in vulnerable situations.

An agreement centered on returning people to their countries of origin “without obstacles”, and which establishes no commitment to migratory regularization, would consolidate a global line of action that positions this policy not as an exceptional or complementary response to irregular migration but rather as the primary focus.

This approach ignores the fact that return procedures are expensive, difficult to implement and unlikely to cover the majority of migrants.

Defending commitments on regularization does not mean agreeing to provide permits to all people with irregular status, but instead promoting the development of more objective, clear, accessible and affordable procedures and criteria for regularization, in line with migrants’ reality and state objectives. This is fundamental to eliminating the bureaucratic obstacles that keep people from gaining regular status and achieving a full and dignified integration in society.

This is fundamental to eliminating the bureaucratic obstacles that keep people from gaining regular status and achieving a full and dignified integration in society, as well as to promoting formal employment and allowing the state to learn about all its inhabitants and govern for them.

With regard to the Global Compact, maintaining wording that overlooks migratory regularization would represent a political rollback that gives more leeway to increased rights violations against migrant persons and disregards the expectations and needs of society.

See the Global Compact on Migration: Recommendations for a compact with a rights-based approach.

About the authors

Camila Barretto Maia is a member of the International Team at the Center for Legal and Social Studies (CELS), an Argentine human rights organization with a broad agenda. She holds an International Relations degree from the University of Brasilia and a Master's in Public Administration and Policies from the Getúlio Vargas foundation (Brazil).

Camila Barretto Maia integra el Equipo de Trabajo Internacional del Centro de Estudios Legales y Sociales (CELS), una organización de derechos humanos de la Argentina con una amplia agenda. Es graduada en Relaciones Internacionales por la Universidad de Brasilia y tiene una maestría en Gestión y Políticas Públicas de la Fundación Getúlio Vargas.

Diego Morales is the director of CELS' Litigation and Legal Defense Area. He received his law degree from the University of Buenos Aires, and has given Master's level courses on the migration law and human rights.

Diego Morales es el director del Área de Litigio y Defensa Legal del CELS. Es abogado, graduado de la Universidad de Buenos Aires, y ha impartido cursos de maestría en enseñanza en la ley de migración y los derechos humanos.

Raísa Ortiz Cetra is a member of CELS' International Team. She holds an International Relations degree from the University of São Paulo, and a postgraduate degree in Human Rights, Migration and Asylum from the National University of Lanús (UNLa/Argentina).

Raísa Ortiz Cetra integra el Equipo de Trabajo Internacional del CELS. Es graduada en Relaciones Internacionales por la Universidad de São Paulo, con postgrado en Derechos Humanos, Migración y Asilo por la Universidad Nacional de Lanús (UNLa/Argentina).

 

 


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