A Global Compact to return migrants?
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.