1 Essentials of Migration Management for Policy Makers and Practitioners Section 1.5 Rights and Obligations of Migrants

Essentials of Migration Management 2 Section 1.5 Rights and Obligations of Migrants Learning Objectives increase your knowledge of the fundamental rights and obligations of migrants understand the human rights factors that need to be reflected in a migration management policy and system improve your ability to identify needed policy changes or legislative initiatives in your setting

Essentials of Migration Management 3 Section 1.5 Rights and Obligations of Migrants Topic Titles Topic One: International Law and Migrant Rights and Obligations Topic Two: Human Rights Instruments Topic Three: Security and Migrant Rights

Essentials of Migration Management 4 Topic One International Law and Migrant Rights and Obligations Terms and Concepts AlienA person who is a citizen of another country and who does not have citizenship in his or her country of residence Binding lawsLaws "bind" (impose limitations and/or confer rights upon) only the States that have accepted them. However, rules may bind non-parties to a treaty if the rules are part of customary law. Customary lawEvidence of a general practice by States recognized as law DerogationRestriction or suspension of rights in certain defined situations (Continued)

Essentials of Migration Management 5 Topic One International Law and Migrant Rights and Obligations Enter into forceTo become binding. An instrument usually enters into force after a designated number of States has ratified it and/or a certain amount of time has passed. InstrumentA legal document InalienableNot able to be transferred or assigned to another person Legal migrantA migrant who possesses travel documents, (e.g., passport and visas) or other forms of permission to enter and stay in another country Prima facie“At first inspection” or “barring other factors” StateA defined territory with a permanent population and an effective government that exercises internal and external sovereignty (Continued)

Essentials of Migration Management 6 Topic One International Law and Migrant Rights and Obligations StatelessThe status of a person without formal citizenship in any country and without the protection of any State RatificationThe final establishment of consent to be bound by a treaty, usually including the deposit of an instrument RefoulementForced return of a refugee to the frontiers of territories where his or her life or freedom would be threatened on the grounds set out in the 1951 Convention Relating to the Status of Refugees Reservation to a treaty A unilateral statement made by a State, when signing, ratifying, accepting, approving, or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State (Continued)

Essentials of Migration Management 7 Topic One International Law and Migrant Rights and Obligations Rights-based approachPuts the rights of migrants as the essential beginning point of an approach to migration policy rather than control over migrants’ lives TreatyInternational agreement in writing concluded between States and governed by international law, also called covenant, convention, protocol, or accord

8 Rights and Obligations of Migrants Topic One International Law and Migrant Rights and Obligations

Essentials of Migration Management 9 Topic One International Law and Migrant Rights and Obligations Important Points 1.Differential treatment of citizens and non-citizens, both under international law and in State practice. 2.The migration and human rights nexus. 3.There are a number of limitations on the protection of the rights of migrants under international human rights law. States are allowed to derogate from certain rights in times of national emergency, and in doing so distinguish between citizens and aliens. In many international human rights instruments, a distinction is drawn in certain circumstances between the rights of migrants who are legally on State territory and those who are irregular migrants. (Continued)

Essentials of Migration Management 10 Topic One International Law and Migrant Rights and Obligations 4.Under general human rights law, a “hierarchy” of beneficiaries is established: citizens enjoy the fullest rights, followed by migrants lawfully within State territory, and finally, migrants in an irregular situation. 5.Irregular migrants are most in need of international protection. Their lack of legal status or recognition makes them particularly susceptible to abuse, exploitation, and denial of their most basic human rights.

Essentials of Migration Management 11 Topic One International Law and Migrant Rights and Obligations Obligations of Migrants There is no body of international law or customary law that governs the obligations of migrants toward the State that corresponds to the law on human rights. Migrants have an obligation to respect the authority of States. According to international law, migrants are required to comply with the national legislation of the host country. A host country is not required to accept practices that violate national or international law. (Continued)

Essentials of Migration Management 12 Topic One International Law and Migrant Rights and Obligations Policy makers need to recognize that longstanding and valid assumptions that migrants will integrate, will learn the language, and will respect the culture of the host country are not international legal obligations.

13 Rights and Obligations of Migrants Topic Two Human Rights Instruments

Essentials of Migration Management 14 Topic Two Human Rights Instruments Important Points 1.The Universal Declaration of Human Rights. Adopted by the United Nations General Assembly in 1948, the Declaration was intended as “a common standard of achievement for all peoples and nations." Its thirty articles cover a wide range of human rights including the following: right to life, liberty and security of person (Article 3) prohibition of slavery or servitude (Article 4) prohibition of torture or inhuman or degrading treatment or punishment (Article 5) prohibition on retroactive penal legislation (Article 11) right to respect for private and family life, home and correspondence (Article 12) right to leave any country and to return to one’s own country (Article 13) right to freedom of thought, conscience and religion (Article 18) right to freedom of expression (Article 19) (Continued)

Essentials of Migration Management 15 Topic Two Human Rights Instruments 2.Article 2 of the Declaration defines the fundamental principle of non- discrimination, which is highly relevant in the migration context. 3.The International Covenant on Economic, Social and Cultural Rights and The International Covenant on Civil and Political Rights 4.The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) 5.The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 6.The Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Continued)

Essentials of Migration Management 16 Topic Two Human Rights Instruments 7.The Convention on the Rights of the Child 8.The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families 9.Many regional human rights instruments provide similar rights guarantees, and apply to all persons within the jurisdiction of the contracting parties.

17 Rights and Obligations of Migrants Topic Three Security and Migrant Rights

Essentials of Migration Management 18 Topic Three Security and Migrant Rights Important Points 1.Security is increasingly being understood to refer primarily to protection against crime and terrorism. 2.Security concerns are often given as a reason to restrict or suspend the rights of migrants. 3.Migration procedures are becoming tools to combat terrorism; rights of migrants in terms of equality of access to justice procedures and civil liberties are in danger of being sacrificed in the “war against terrorism." 4.An important challenge for policy makers is to find the balance between an approach to migration management within a framework of control and an approach in which human rights are a fundamental component.

Essentials of Migration Management 19 Topic Three Security and Migrant Rights Balanced Policy Development Before rights can be respected, it is necessary to know exactly what they are. Knowledge of the correct standards for assessing rights violations works best when all people who enforce laws, or border controls, have this knowledge and it is not the exclusive domain of a few senior officials. Non-governmental organizations (NGOs) have an important role in helping governments to achieve these measures. Training is an important tool to use as widely as possible so that knowledge can be provided to strengthen and connect security and border control with the exercise of State authority. (Continued)

Essentials of Migration Management 20 Topic Three Security and Migrant Rights National legislation should incorporate the most important international standards and thereby contribute to a framework for effective migration policy and administration. Actions taken by Governments should be authorized by law. There should be a “prohibition against arbitrariness.” Once the main human rights instruments are adopted and implemented, an independent body should be set up to monitor implementation of laws and seek remedies for violations. Government actions, decisions, and laws should be open to the public in order to be transparent. (Continued)

Essentials of Migration Management 21 Topic Three Security and Migrant Rights Actions by a government should be proportional to the final goal. The principle of proportionality requires that where measures are taken that may violate certain human rights, then these measures must be reviewed at regular intervals by independent national bodies. The principle of proportionality requires that measures be specific and targeted rather than generalized. Law enforcement agencies have a responsibility to gather information and assess who is presenting a security risk or potentially presenting a risk.

22 Last Slide Section 1.5 Rights and Obligations of Migrants