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The failure of deterrence and prohibition policies

Many factors weigh into a potential migrant’s decision-making process regarding when, where, and why they want to migrate. Some of these factors are often described as ‘push and pull’ factors, the overly broad but classic examples for which are poverty or war on the one side, and opportunity and peace on the other. Yet discussion about these factors is on the whole extremely shallow, and is often no more than scaremongering about ‘benefit scroungers’ and migrants ‘taking our jobs’.

While the economic incentives to migrate are diverse and, for many, very strong, they are constantly evaluated and scrutinised by potential migrants. It is true that most migrants, including refugees, try to go where there are jobs, where they can start integrating and creating a future for their children. It is also true that prime destination countries have jobs available for migrants in the official or underground labour markets. Migrants respond to this demand for labour, and under normal circumstances when demand declines in a particular area, so does migration to it.

Repressive policies only entrench smuggling operations and underground labour markets.

Now, if you put a barrier between the reasons individuals want or need to move and the reasons why people within a destination country would like to have them come, yet leave everything else untouched, you create perfect conditions for underground labour markets and smuggling markets to flourish. This is one reason why regular migration channels for refugees and much needed low-wage migrants are so important: repressive policies only entrench smuggling operations and underground labour markets further. Prohibition is part of the problem, not of the solution.

The only way to actually reduce smuggling and unethical recruiting is to undercut the smugglers and exploitative recruiters by offering regular, safe, accessible and affordable mobility solutions, in the form of visas or of visa-free travel opportunities, with all the identity and security checks that efficient visa regimes can provide. In effect, one must take over the mobility market. Migrants do not want to be undocumented. They would rather pay a visa officer than a smuggler, rather arrive by plane than on a leaky boat, and rather work above the table than below it.

For these reasons attempts to externalise national boundaries will not stop migration any more than other types of barriers, because they do not respond to mobility needs and labour market shortages. Furthermore, the premise that transit countries will voluntarily hold unlimited numbers of migrants within their borders in order to prevent them reaching their preferred destinations has not yet proven workable let alone humane.

Developing a long-term, strategic vision for mobility policy

The Global North has the capacity to integrate millions of migrants and refugees, but it will not overcome the current feeling of crisis without a convincing vision and narrative. As the head of Human Rights Watch, Kenneth Roth, said, “if there is a crisis, it is one of politics, not capacity”. There will be no tackling the present ‘migration crisis’ (in Europe and elsewhere) until politicians delineate a long-term, human-rights-based strategic mobility and diversity policy vision that will give meaning, coherence and direction to the actions presently taken.

We need to change our collective mindset and accept that migrants will come to the Global North, no matter how high the barriers are, because there are many good reasons to do so (e.g. work, education, family, personal aspirations). The goal must therefore be to have most migrants using official channels to enter and stay in host countries.

Two axes will be key, which I have developed in several reports1:

• Developing refugee resettlement programmes to serve considerably more refugees than the present 1%. Private sponsorship will be part of that.

• Recognising our own labour needs at all skill levels and opening up considerably more visa opportunities or visa-free travel programmes.

The potential benefits of such a plan are large, while the movements of people would largely be in tune with the needs of the market. After the 2005 EU enlargement, a million and a half Central Europeans came to the UK and Ireland, and made a great economic contribution. When the crisis struck in 2009, many left the UK. This is a mobility to be celebrated, which matches labour needs and individual skills. We should want it not only between the cities of our countries, or within regional zones such as the EU, but also planet-wide as a longer-term objective.

Such facilitated mobility would have obvious advantages, as it would:

• Reduce significantly the market for smugglers.

• Allow for security checks to be made abroad.

• Reduce considerably the workload of refugee status determination systems in destination countries.

• Most importantly, provide the opportunity to show the electorate of destination countries that borders are respected, that authorities are managing migration properly, that there’s no “chaos on the beach”, that reception mechanisms are in place, that employers are integrating migrants in the labour market, that investments have been made in integration programmes, and that the fear-mongering discourse of nationalist populists is based on stereotypes, myths and fantasies.

This type of mobility is not science fiction. In the 1950s and 1960s, millions of North Africans and Turks entered Europe either through state-supported labour transfer programmes, without a visa, or with an easily obtainable visitor’s visa, which they then were able to convert to a formalised work permit upon finding a job. There was almost no market for smuggling. No one died in the Mediterranean. Yet IDs and travel documents were controlled at every border.

The idea is thus not to diminish border controls. On the contrary, it is to make border controls more effective by reducing the incentives to circumvent them. By offering most foreigners easier access to appropriate travel documents, such as refugee resettlement visas, visitor visas, family reunification visas, work visas, resident visas or student visas, we allow states to concentrate their intelligence and deterrence efforts on the minute percentage of individuals who really do represent a threat.

We can set ourselves the goal of achieving this mobility within a generation, say a quarter century, through the progressive expansion of visa liberalisation and visa facilitation regimes, with benchmarks along the way.

A long-term vision requires long-term investment

Responding to the complexity of human mobility, states need to develop a long-term strategic vision of how their mobility policies will look like in a generation from now, with precise timelines and accountability benchmarks. States do this strategic planning for energy, environmental, infrastructure, public transit or industrial policies, in order to determine the investments needed to achieve the objectives. In the field of mobility, such a strategy will also command long-term investments in diversity and integration policies; education strategies; providing migrants with tools of empowerment; access to justice; and support for the fight against marginalisation and discrimination that fuel disenfranchisement.

By offering most foreigners easier access to appropriate travel documents, we allow states to concentrate their intelligence and deterrence efforts on the minute percentage of individuals who really do represent a threat.

In target 10.7 of Agenda 2030 for Sustainable Development, states agreed to “facilitate” migration and mobility in the next fifteen years. “Facilitating” means making migration easier, lowering barriers to mobility. It does not mean open borders or absolute free movement. It means broadening legal pathways and developing many more creative visa avenues for all migrants and refugees. This is the key objective.

This opportunity should be seized by states and all other stakeholders to ensure that the Global Compacts on Refugees and Migrants – that are set to be negotiated over the course of the next two years – are not the end of the process, but rather its beginning. One could imagine states agreeing in the compact on migration, for instance, to initiate a fifteen-year “agenda”, complementary to the 2030 Agenda on Sustainable Development, which would include successive benchmarks and accountability mechanisms.

Such an agenda would be punctuated by the annual meetings of the Global Forum on Migration and Development and a series of UN General Assembly High-Level Dialogues – say every five years – to ensure that the implementation of the agenda stays on course. Since the global compact’s adoption is scheduled for 2018, the agenda could start in 2020 and be called the 2035 Agenda for Facilitating Human Mobility, or Agenda 2035: 10.7 implemented.

The market of ideas for a 2035 Agenda on Sustainable Human Mobility

The content of the agenda remains to be determined. Several chapters will be needed and could include: short-term visits; job search; student mobility; intra-firm mobility; retiree mobility; business creation mobility; family reunification; family sponsorship; long-term residence; and access to citizenship.

Multiplying the number of visa opportunities will not come easy for many countries. The EU model of negotiating visa facilitation and visa liberalisation agreements with other countries could be used. One could imagine that by 2035, all states would have visa facilitation agreements with all their neighbouring countries and would have visa liberalisation with many of them. Such agreements would cover visitor visas and work visas. Using a visitor visa for job searching should not be discouraged, to the contrary: this would be one way that would allow employers to meet candidates of jobs offered.

Family unity should become a key principle to be implemented by all states. The idea that migrant workers can or must live years, sometimes decades, far from their families, should be utterly challenged. Any migrant worker effectively staying at least six months in the country of destination – whatever the duration of the visa – should have the option to bring their family to live with them. It may not have been a key human rights principle immediately after the second world war, but the human rights doctrine has evolved and this should now be considered a priority, if only for the sake of the children.

Considerably reducing underground labour markets will be difficult. The situation is that employers in economic sectors with low profit margins are happy to have cheap labour, consumers are happy to have low prices, the authorities are happy that such businesses are profitable and able to pay taxes, and migrants made illegal by immigration law do not complain for fear of detection, detention and deportation. Yet, reducing underground labour markets is key to achieving effective mobility without distortions. If those markets were formalised away, migrants would no longer have to live in the shadows of society and at risk of exploitation, and would be able to move on if they can’t find a job.

Access to permanent residence (or long-term residence permits) should be an option after a reasonable time of effective residence under any temporary regime. I would personally choose five or six years of effective residence as the benchmark. This would imply repealing rules such as the Canadian “4x4” rule (four years in, four years out). If the temporary migrant worker has a job and pays taxes, and the employer is happy with her, why exclude her?

Access to citizenship will also be difficult for a number of countries who have an ethnic- or culturally-exclusive conception of citizenship. But after five or six years of permanent residence, which can follow five or six years of temporary migrant worker status, paying taxes, and committing no crime, migrants should have the option of integrating fully into the host society. This would implement the principle “no taxation without representation”.

Incorporating diversity in national narrative will also face resistance, especially in countries with a long history of discrimination against minorities, Indigenous peoples, or foreigners. It should however be an objective of such a 2035 Agenda to have it recognised that almost all countries are nowadays countries of origin, transit and destination. As mobility should now be recognised as key to prosperity, diversity should be recognised as key to sustainability: mobility as a development factor is not sustainable if diversity is not recognised as well. Mobility across borders and integration in host societies are coextensive.

Ultimately, migrants’ human rights and labour rights should be at the core of this process and centred upon the following principles:

• Labour exploitation needs to be reduced. One cannot tolerate that whole sectors of national economies only survive thanks to “cheap labour”. Competitiveness, productivity and innovation require guarantees for workers.

• Sponsorship (kafala) systems tying the work visa to one employer should be eliminated in favour of an open work visa, allowing migrant workers to move within the labour market as any other worker, responding to the demand and offer of jobs.

• Labour inspections should focus on implementing labour conditions for all workers, regardless of status, and not focus on trying to identify undocumented workers.

• Employers of undocumented migrants need to be denounced and punished appropriately, not the undocumented workers. Punishing undocumented workers push them deeper underground where they are effectively silenced and more at risk of exploitation. Punishing the employer increases the cost of cheap labour, thus providing an effective disincentive.

• Migrants need to be empowered to defend their rights. Unionisation of migrant workers, regardless of status, should be encouraged. Access to justice for migrant workers should be facilitated.

Conclusion: negotiating a small but focused number of critical ideas

All this could be part of the 2035 Agenda, but given that all of these ideas will surely meet strong resistance it is certain that not all will be. However, if we could agree on a modest proportion of increased mobility and diversity, we will have made progress and paved the way for future advances.

In the same way, I suggest we agree on a small number of measures that would facilitate mobility and strengthen the recognition of diversity around the world in the coming fifteen years. The negotiation for the global compact on migration offers us such an opportunity. Despite the present reticence of states and the toxic political debates, developments such as the September 2016 summit in New York suggest to me that mobility and diversity may be more and more recognised and celebrated as central features of our societies.

Although the nationalist populist narrative is dominating at present, I hope that through the development of a common agenda for the long period, we can see beyond their fantasies and threats, and start preparing for a different, more productive narrative.

1. See: Report of the Special Rapporteur on the human rights of migrants to the United Nations General Assembly: “Proposals for the development of the global compact on migration”, A/71/40767, 20 July 2016; Report of the Special Rapporteur on the human rights of migrants, to the United Nations Human Rights Council: "Bilateral and multilateral trade agreements and their impact on the human rights of migrants", A/HRC/32/40, 4 May 2016; Report of the Special Rapporteur on the human rights of migrants to the United Nations General Assembly: “Recruitment practices and the human rights of migrants”, A/70/310, 11 August 2015; Report of the Special Rapporteur on the human rights of migrants, to the United Nations Human Rights Council: “Banking on mobility over a generation: follow-up to the regional study on the management of the external borders of the European Union and its impact on the human rights of migrants”, A/HRC/29/36, 8 May 2015.