1 Essentials of Migration Management for Policy Makers and Practitioners Section 1.8 Developing Migration Legislation

Essentials of Migration Management 2 Section 1.8 Developing Migration Legislation Learning Objectives increase your knowledge of the essential elements of a legislative authority for managing migration better understand the requirement for a sound legislative basis in managing migration develop your ability to assess the adequacy and completeness of migration- related legislation in your particular setting

Essentials of Migration Management 3 Section 1.8 Developing Migration Legislation Topic Titles Topic One: Elements of Migration Legislation Topic Two: Options and Issues in Migration Legislation

Essentials of Migration Management 4 Section 1.8 Developing Migration Legislation Terms and Concepts LegislationUsed inclusively in this Section to mean decrees, acts, or regulatory instruments. Effective legislative authorities used for migration management will reflect the basic structure of the legal system used in the State. Some systems consist of an enabling authority at a relatively high level that requires a set of implementing regulations setting out practice and procedures. In other systems, the enabling authority contains a high degree of prescriptive and procedural detail. The precise balance between these elements is decided by States. (Continued)

Essentials of Migration Management 5 Section 1.8 Developing Migration Legislation Migration management institutional framework Developing a legislative basis for migration management involves designing an institutional framework that will regulate the activities of the State so that they aim toward a common policy objective. The institutions of the State—the executive, legislative, and judicial branches of government, and the agents or ministries of the State that implement the policies—need to be vested with proper authorities and obligations, as do indirect agents such as transporters, accommodation providers, educational institutions, employers, and international institutions. This combination forms the institutional framework for migration management. (Continued)

Essentials of Migration Management 6 Section 1.8 Developing Migration Legislation Operational policy objectives Managing migration involves articulation of an operational balance between options that include: measures for facilitation and control activities located abroad, at points of entry or within the country risk management or risk avoidance the responsibilities of migrants and their advocates, and of the State, for the purposes of economic, social, and cultural integration. The operational policy objectives for migration management express a particular balance between these options that is chosen by a State at any given time. (Continued)

Essentials of Migration Management 7 Section 1.8 Developing Migration Legislation Primary inspection A standardized examination of the travel documents and intentions of all persons entering the State or, if exit procedures are in place, exiting the State Secondary inspection A detailed examination of selected persons entering the State (or exiting the State if exit procedures are in place), usually on referral from a Primary Inspection process requesting closer examination or specialized processing Strategic policy objectives Managing migration involves striking a balance between a variety of public policy objectives in several areas: public health, security, economic prosperity, citizenship, social stability and cohesion, and cultural development. The strategic policy objectives for migration management express a particular balance between these objectives that is chosen by a State at any given time.

8 Developing Migration Legislation Topic One Elements of Migration Legislation

Essentials of Migration Management 9 Topic One Elements of Migration Legislation At the most fundamental level it is necessary to have legislative authority governing: entry to the State exit from the State provision of legal status to persons permitted to stay in the State on a temporary or permanent basis.

Essentials of Migration Management 10 Topic One Elements of Migration Legislation Examples stating that the purpose of the legislation include: promotion of the demographic development of the State meeting labour market requirements of the State maintaining and protecting the health and security of the State facilitating the entry of visitors for the purposes of fostering trade and commerce, tourism, and cultural and scientific activities protecting universally acknowledged rights of migrants preventing illegal migration and promoting international cooperation in this field.

Essentials of Migration Management 11 Topic One Elements of Migration Legislation Assumptions in drafting the legislation: the right of the State’s citizens to enter and exit the State, including any persons who would have this right without the need to seek permission or special status the fact that no persons, other than a person described above, has a right to come into or remain in the State the fact that a person may enter the State as an immigrant and can become a permanent resident of the State under certain conditions for granting immigrant status the fact that a visitor may be granted entry when the conditions for admission and stay as a visitor are satisfied, and allowed to remain during the period for which entry is granted.

Essentials of Migration Management 12 Topic One Elements of Migration Legislation Important Points 1.After identifying the State’s authority and responsibility for managing the movement of people into and through its territory, the legislation should identify the legislative and procedural requirements for entry into the State. 2.Migration management legislation should establish that every person who wishes to enter the State is required to present himself or herself for inspection at designated Points of Entry on the border of the State, and that it is the responsibility of an appropriate official at the point of entry to determine whether or not a person should be allowed to enter the State. 3.Legislation should provide authority to establish procedures whereby primary and secondary inspection functions can be exercised. (Continued)

Essentials of Migration Management 13 Topic One Elements of Migration Legislation 4.Legislation should identify, and provide authority for, the procedures that govern the granting of permission to come to the State. 5.Legislation should prescribe conditions of entry that can be imposed on persons who are granted entry for specific purposes. The legislation should provide authority to establish regulations governing the facilitation of entry or preferential measures for specified categories of persons, for example, family members, business people, and temporary or permanent workers. Wherever possible these should be standardized conditions. Legislation of this sort usually contains a provision to the effect that, while a person has legal status, they can make application to cancel or vary their conditions of entry or to extend the period of their stay. (Continued)

Essentials of Migration Management 14 Topic One Elements of Migration Legislation 6.The legislation should clearly outline the grounds and procedures for identifying and processing persons selected or accepted for permanent residence. 7.Legislation should provide authority for processes and procedures designed to determine the merits of claims to refugee protection or for admission or stay based on humanitarian and compassionate considerations. (Continued)

Essentials of Migration Management 15 Topic One Elements of Migration Legislation 8.Legislation should list the grounds for refusing a person entry into the State. These need to be listed as clearly as possible. At a minimum, the grounds for inadmissibility generally include: failure to present valid travel documents posing a danger to public health or to public safety a person’s inability to support themselves economically reasonable grounds to believe that a person has committed a crime or is engaged in criminal activity reasonable grounds to believe that a person is or has been engaged in terrorist activity, espionage, or subversion use of fraud to obtain a visa, travel document, or immigrant status prior failure to depart from the State while under an order to do so.

Essentials of Migration Management 16 Topic One Elements of Migration Legislation Visas and legislation Legislation should identify the organizational unit that is authorized to decide on visa applications, and, if a fee is involved, identify the authority to charge a fee for rendering a decision on a visa application, and where the authority resides for setting the amount of any fee. (Continued)

Essentials of Migration Management 17 Topic One Elements of Migration Legislation Legislation should provide authority for the procedures for receiving, assessing, and deciding upon visa applications. At a minimum, this would include: an authorized form of application the requirement to examine the applicant as well as their documents in cases where the applicant’s intentions are suspect or unclear the requirement to assess the application in terms of the prescribed grounds for granting or refusing a visa and other such information as may be available to assist the official in making a determination (e.g., a lookout list of undesirables or a profile of problem applicants) the rendering of a decision in a timely fashion the requirement to register and retain all applications and decisions for a fixed period of time the requirement to provide visa data to the officials carrying out inspection at points of entry to the State and, if required, to a centralized database.

Essentials of Migration Management 18 Topic One Elements of Migration Legislation The inspection process Every person seeking to enter the State shall be subject to (primary) inspection. It is the duty of persons seeking entry to answer truthfully all questions put to them during inspection, and to produce such documentation as may be required by officials for the purpose of establishing whether or not the person can enter the State. (Continued)

Essentials of Migration Management 19 Topic One Elements of Migration Legislation Legislation should authorize the official conducting the primary inspection to: admit persons who have a right to enter the State grant entry into the State to persons who meet the conditions for entry prescribed in the legislation impose a prescribed time frame for a person’s period of stay in the State impose prescribed terms and conditions for entry and stay adjourn an inspection and refer the person being examined to another official for in-depth (secondary) inspection of a person or of their documents. (Continued)

Essentials of Migration Management 20 Topic One Elements of Migration Legislation Legislation should authorize the official conducting the secondary inspection to: grant entry into the State to persons who, after further inspection, are found to meet the conditions for entry prescribed in the legislation impose a prescribed time frame for period of stay in the State impose prescribed terms and conditions for entry and stay deny entry into the State of persons meeting the conditions for inadmissibility prescribed in the legislation detain persons who have been denied entry until such time as they can depart from the Point of Entry (or in some instances the border zone) in a manner that should be prescribed in the legislation refer persons requiring further processing outside the Point of Entry or the border zone to the appropriate government department and to make compliance with this referral a condition of entry for the person concerned.

21 Developing Migration Legislation Topic Two Options and Issues in Migration Legislation

Essentials of Migration Management 22 Topic Two Options and Issues in Migration Legislation The legislative authority needs to support the establishment of procedures whereby a migrant’s legal status can be determined in unclear or contentious cases. At a minimum this procedure generally includes: presenting evidence to an impartial judge or adjudicator that supports the conclusion that a person does not have legal status in the State providing for the person concerned to be made aware of the allegation of non-legal status and of the supporting evidence providing an opportunity for the person concerned to present evidence that will be taken into account in rendering a final decision.

Essentials of Migration Management 23 Topic Two Options and Issues in Migration Legislation Important Points 1.Legislation should authorize the establishment of a procedure to be followed in removing a person from the territory of the State. At a minimum, this would generally include: returning the person concerned to the country from which he or she entered the State under any agreements that may be in place to facilitate this returning the person concerned to the country where he or she last permanently resided before coming to the State returning the person concerned to his or her country of nationality, or country of birth. 2.Legislation may include a sanction against persons who are deported involuntarily. (Continued)

Essentials of Migration Management 24 Topic Two Options and Issues in Migration Legislation 3.Legislation should specify the consequences for migrant smuggling and trafficking in human beings. 4.Legislative authority should reflect the operational policy of the State regarding the practice of exit inspection. 5.Migration management legislation, for greater effectiveness, should also contain a number of additional legislative authorities relating to: the obligations of transportation companies in regard to entry and exit provisions sanctions imposed on persons who assist others to evade entry and exit provisions obligations of officials administering the provisions of the legislation. 6.Legislative authority needs to set out the professional obligations of officials to whom authority is given by the legislation.

Essentials of Migration Management 25 Topic Two Options and Issues in Migration Legislation The Exit Inspection Process As with the provisions for entry, legislative authority should provide a means to implement the main elements of an exit inspection process. facilitate exit to those persons who have a right to exit the State grant exit from the State to non-citizens of the State who meet the conditions for exit prescribed in the legislation adjourn the inspection and refer the person being examined to another official for in-depth (secondary) inspection of the person or their documents deny exit from the State to persons meeting the conditions for prohibition of exit prescribed in the legislation detain persons denied exit until such time as they can be referred to the appropriate entity for further processing. (Continued)

Essentials of Migration Management 26 Topic Two Options and Issues in Migration Legislation Legislative authorities relating to exit also need to support procedures that allow these functions to be exercised. These would, at a minimum, include: recording the passport data (mechanically or manually) of persons granted exit permission recording the disposition of cases referred for in-depth secondary inspection recording and advising the competent entity of cases referred to that entity for further processing.

Essentials of Migration Management 27 Topic Two Options and Issues in Migration Legislation Legislation and transport companies Legislation may confirm that it is the duty of companies transporting persons to the State to: check those persons’ travel documents to ensure that they are in possession of all visas, passports, and travel documents required by law present the persons being transported for inspection on arrival at the border of the State transport persons who are refused entry at the border back to the point from which they came pay the cost of returning a person they have transported to the border without a valid visa and who has been refused entry into the State for that reason.

28 Last Slide Section 1.8 Developing Migration Legislation