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Getting Started with Immigration & Asylum Law
Immigration and Refugee Law (IRL) is the international framework governing migration and asylum, deriving from sources of international law that apply to the movement of persons within or between states and regulate States' competence and obligations, migrants' status, rights, and duties, as well as international cooperation.
Foundational Terms in Immigration & Asylum Law
Foundational Terms
Types & Status of Migrants
In theory, international law prevails over national law, but States have competence to control their own population and territory and have autonomy to decide who enters, stays, and is removed from their national territory. This leads to several major challenges of International Migration & Refugee Law (IMRL): the compliance with international law, its implementation at the state level and the ability to promote dialogue and cooperation on the inter-state level. IMRL provides both the rights and obligations of migrants, as well as the competences and responsibilities of States. It looks to promote the rights of migrants to leave any country and enter other countries, the right to free movement of people, the principles of family reunification and of non-discrimination, and the prohibition of arbitrary detention and collective expulsion.
Instruments of International Migration & Refugee Law
Soft Law Instruments
1. The Global Compact on Migration
- Adopted in 2018, this is the first holistic inter-governmental negotiated agreement covering all dimensions of International Law.
- As a soft law document, the Global Compact on Migration includes recommendations for specific ideas on multilateral cooperation relating to migrants. Its main purpose is to help reduce the risks in regard to human migration and to increase the benefits for both states and migrants.
2. The Global Compact on Refugees
- Also adopted in 2018, The Global Compact on Refugees provides the blueprint for states and International Organizations to ensure communities hosting refugees get the support they need, while also ensuring that refugees can lead productive and safe lives in their new communities.
- This document includes recommendations and frameworks for states that are particularly affected by large refugee movements to ease pressures on host countries, enhance refugee self-reliance, and support conditions of returning refugees to their origin countries as well.
Migrant workers constitute the main category of economic migration around the world. The main drivers of labor migration tend to be climate change, demographic changes within countries, internal or external conflicts, and global income inequalities.
The International Labor Organization's (ILO) Conventions of 1949 and 1974 established 4 fundamental principles relating to labor migration:
1. the elimination of all forms of forced labor
2. the effective abolition of child labor
3. the elimination of discrimination with respect to employment
4. the freedom of association and the effective recognition of the right to collective agreement
The U.N. Convention Relating to Migrant Workers of 1990 provides the broadest definition of migrant workers, seeking to protect as many people as possible from discrimination in the employment sector and regulate the conditions of labor migration. It also enumerates the duties of state parties to the convention with regard to labor migration, for example, that states must ensure the rights of migrant workers and their families are both respected and provided for.
While the distinction between Trafficking in Persons (TIP) and Smuggling of Migrants (SOM) may seem trivial, it is extremely important to understand the nature of the crimes itself and the way to prosecute them.
TIP, as defined in Article 3(a) of the Trafficking Protocol, requires:
1. An Action: the recruitment, transportation, transfer, harboring, or receipt of persons
2. A Means: the threat of force, coercion, fraud, or deception of the persons
3. A Specific Purpose: the purpose of the Action and the Means must be to the exploitation of the trafficked persons.
The consent of the victim is irrelevant in the analysis of Trafficking in Persons because often some level of consent is present.
Trafficking in Persons, crucially, is a crime committed against the INDIVIDUAL.
SOM, as defined in Article 3 of the Smuggling Protocol, requires:
1. An Action: the procurement of illegal entry. Must be of a transnational nature.
2. A Purpose: to obtain a benefit, requires a monetary payment by the smuggled person to the smuggler.
Smuggling of Migrants is distinguished from Trafficking in Persons because it is a crime against the STATE.
As one of the most vulnerable groups of migrants, asylum seekers and refugees need certain protections and guarantees to ensure the process of applying for refugee status is as safe as possible for both the migrants themselves and the countries receiving them.
To receive refugee status, migrants need to be:
1. Outside of their country of origin or habitual residence
2. Unwilling or unable to receive protection from their country of origin or return there
3. Not explicitly excluded from refugee protection based on the Exclusion Clauses and Cessation Clauses of the 1951 Conv. Relating to the Status of Refugees (Article 1 C-F)
4. Part of one of five categories of people that have a well founded fear of persecution based on: Race, Religion, Nationality, Political Opinion, or Member of a Particular Social Group.
Refugee & Asylum Law is also governed by the important principle of Non-Refoulement. As defined in Article 33 of the 1951 Conv. Relating to the Status of Refugees and later adopted as binding International Custom, the principle of Non-Refoulement prohibits asylum seekers from being returned to a country where they face serious threats to their life or freedom.
As defined in Article 1 of the Conv. Relating to Stateless Persons, a Stateless person is one who is not considered a national by any state under its operation of law, usually due to internal conflicts (for example, changing borders), legal traps, and discrimination of certain groups within the country. In a global context comprised of states, statelessness has become a major international concern.
In 2013, the UN High Commissioner for Refugees initiated the Global Action Plan to End Statelessness. This was a 10 year plan between 2014 and 2024 to eliminate statelessness around the world and was coordinated between the UN, state parties, and other international organizations. The plan includes a guiding framework for states that includes 10 actions that need to be taken by states to end statelessness.
IDPs are those who are forced to flee their homes as a result of or in order to avoid the effects of armed conflict, violence, violations of human rights, natural disasters, or large-scale development projects who have not yet crossed an international border. If they do cross an international border, they are no longer considered IDPs. Instead, they become asylum seekers and must petition for refugee status.
Legal Framework for IDPs
1. Humanitarian and Human Rights Law
2. The Guiding Principles on Internally Displaced Persons (1988)
3. The Kampala Convention (2012) (only applicable for the continent of Africa)
The general principles of the IDP legal framework are:
- the guarantee of equal rights and non-discrimination
- the right to seek asylum if crossing an international border
- respect for the sovereignty of states
- recognition by states of their responsibility to protect IDPs from human rights violations, etc.
This guide was written by USD Law student Jack Wells.
